Decided on April 09,1976

DIPALI DAS Respondents

Cited Judgements :-



- (1.)THIS rule was issued on an application under section 24 read with section 115 of the Code of Civil procedure for the transfer of a suit from the 11th Court of the Additional district Judge, Alipore, to some other court. The petitioner instituted the suit claiming a decree for judicial separation and also for other reliefs. The grounds on which the transfer of the suit has been asked for are four in number. It is stated that the cumulative effect of all these grounds for transfer has resulted in a reasonable apprehension in the mind of the petitioner that he will not get a fair trial from, and his case will not be considered properly, by the learned Judge before whom the suit is pending. The four grounds urged on behalf of the petitioner for transfer of the suit are: i) Not only that the learned Judge did not record the explanation given by the petitioner in support of his answers in cross-examination but the learned Judge used intemperate language against the petitioner during his cross-examination ; ii) Some of the answers given by the witnesses in the vernacular have been translated into English in a manner which has resulted in incorrect recording of the evidence and such recording of evidence has caused serious prejudice to the petitioner's case ; iii) Evidence considered very material for the petitioner's case and which was not objected to by the other side was not recorded; and iv) A prayer for adjournment made on behalf of the petitioner to examine one of his witnesses who was in Darjeeling and which prayer was not opposed by the other side was turned down by the court and the court directed that unless the said witness was brought before the court at the first hour on the next day the petitioner's evidence will be closed and the evidence on behalf of the defendant will be taken.
(2.)MR. Roy, learned Advocate who appeared on behalf of the petitioner in the trial court has made it perfectly clear before us at the very outset that he has nothing to complain against the learned Judge regarding his fairness, honesty and integrity. He submitted that in the facts and circumstances of the present case the petitioner before us has a reasonable apprehension that he will not get a fair trial before the learned Judge in view of the fact, that the learned Judge has not bestowed due care and attention which has client's case deserves. His contention is that this apprehension in the mind or the petitioner is reasonable and bona-fide and as such there is sufficient ground for transfer of his suit from the learned trial Judge to some other learned Judge. He submitted that he has no choice of any particular court but that the suit should be transferred to some other court.
(3.)MR. Mukherji, learned Advocate, opposing this rule contended that the grievances made by the petitioner are not substantiated by any materials on record. According to him, in the absence of any petition being filed indicating that the learned Judge was not taking down the evidence correctly the petitioner cannot be allowed to make it a ground for transfer. Mr. Mukherji further contended that the explanation given by the learned trial Judge to the learned District Judge in connection with the petitioner's application for transfer of the suit is sufficient to demolish the petitioner's case which has been made out in this Court. He relies on certain statements made by the learned trial Judge in his aforesaid report to which we shall have occasion to refer hereinafter. Mr. Mukherji accordingly contended that the apprehension, even if there be any, in the mind of the petitioner in this case is merely fanciful or sentimental and that cannot be a ground for transfer of a suit. Mr. Mukherji further took the objection that the petitioner once having moved the learned District Judge for transfer of the suit under section 24 of the code of Civil Procedure the present application under the same section is not maintainable.

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