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Bench: JUSTICE V.P. Mohan Kumar


Law Point:
Civil Procedure Code, 1908 — Sec. 24 — Transfer petition — Allegations against Presiding Officer — Held that it cannot be expected that Judges should be silent without expressing any opinion — Spinex like attitude not expected from Presiding Officer especially when trying a matrimonial case or litigation between very near relations.





The petitioner herein is the respondent-wife in M.C. No. 106/93 on the file of the Additional Family Judge, Bangalore. The Ist-respondent herein, the husband, moved the aforesaid matrimonial case under Sec. 13(1)(i) and (ia) of the Hindu Marriage Act. It is alleged by the petitioner that the application is made reckless and vexatious allegations attributing to the life of the petitioner and that of her sister. It is averred that the petitioner is residing in Bombay and, according to her, she is made to travel to Bangalore for the purpose of conducting the case. She filed that present civil petition seeking transfer of M.O. No. 106/93 from the file of the Additional Family Judge, Bangalore, to any other Court having competent jurisdiction in the interests of justice and equity.

2. The 1st respondent has opposed the application and has brought to the notice of this Court several facts. The allegation made in the transfer petition is that the Presiding Officer is showing undue haste and interest in the case which creates a reasonable apprehension in the mind of the petitioner that she will not receive a fair trial at the hands of the Presiding Officer. She has referred to certain uncharitable remarks made by the Presiding Officer at para-6 of her transfer petition, wherein it is alleged that the Presiding Officer stated that “since the party is young, he is taking up the matter and the old cases are dead and, therefore, he will proceed to the case.” According to her, these remarks of the Presiding Officer have given an impression in her mind that she will not get fair treatment at the hands of the Presiding Officer. Besides this, the petitioner has alleged in para-8 of the transfer petition, the conduct of the 1st respondent and his father in the matter of their habit of trying to influence the Presiding Officer. She says that a suit was filed by the 1st respondent and his father; that the 1st respondent and his father had approached the then Presiding Officer Shri Umesh Shetty and that the 1st respondent and his father were admonished by the said Presiding Officer. According to her they adopted the same method with another Presiding Officer Shri T.S. Lakshminarayana Rao. The petitioner alleges that the 1st respondent’s father was admonished by a sitting Judge of this Court in the open Court for having attempted to influence him by meeting him at his residence. Like that, in another case an attempt was allegedly made by the 1st respondent and his father to influence the Presiding Officer Shri Linga Reddy. The petitioner alleges that she saw the 1st respondent near the Chambers of the Presiding Officer trying the M.C. case and this circumstance coupled with the remarks made by the Presiding Officer in the open Court has given an impression in her mind that she will not get justice in the case.

3. The respondent has stated that the intention of the petitioner is to protract the matter unduly. He has also stated that the 2nd respondent did not at all appear before the Court and that he was set ex-parte. Thereafter the ex-parte was set aside. He then filed an application to delete him from the party array. This application was dismissed. Challenging this order, he filed a writ petition before this Court which was also dismissed. Against the said order, he has filed an appeal which is pending. It is averred that the 1st respondent has appeared only thrice before the Family Court. According to the 1st respondent, the method now adopted by the petitioner shows that she has an intention to protract the matter.

4. In view of the allegations made by the petitioner in this case, I called for the remarks of the Presiding Officer. A detailed reply has been submitted by the Presiding Officer in which every allegations made by the petitioner has been denied. As regards the alleged statement made by the Presiding Officer in the open Court, he has clearly denied the same. He has stated in particular as follows :

“…There was no occasion or provocation for me to make any derogatory remarks against the parties to the proceedings as attributed to me such as :

“I do not care whether your lives as a destitute or as a princess. If your party was not coming from Bombay, I would not have even granted Rs. 500/- as maintenance…”

“Old cases are dead. This party is young and hence I am taking up the matter.

I have not made such statements. As I have submitted earlier when the learned Advocate for the respondents repeatedly said that old cases are pending and why the new cases are being taken up, said that because the old cases are pending, the interest of the parties in the new cases should not be ignored.”

The further allegation regarding the attempt being made to influence the Presiding Officer by the 1st respondent and his father, has been totally denied by the Presiding Officer. It is categorically stated by the Presiding Officer that he has absolutely no personal interest in the case nor in any other cases in his Court. He has stated that he has disposed of all the cases in accordance with law and on the basis of the materials placed before him. It is asserted by the Presiding Officer that he does not permit any of the parties to meet him in the Chambers, He has also pointed out that the conciliation proceedings were taken by him only on Saturdays after-noon in all cases. He has categorically stated that he has no preconceived notion about the case as well.

5. I have heard the Counsel for the petitioner as also the respondents and also perused the letters from the Presiding Officer regarding the allegations. It is patently clear that this is an attempt on the part of the petitioner to protract the case. None of the allegations made in the transfer petition can be substantiated. The transfer of the case is sought on four grounds : (i) the case is being listed to near dates unlike in other cases (i) remarks made by the Presiding Officer from the Bench; (iii) refusal to summon documents desired by the petitioner; and (iv) likelihood of the Presiding Officer being influenced by the respondents. As regards the 1st point, it is clear from the explanation offered by the Presiding Officer that he has not shown any undue preference to the case. All he seems to have intended to convey was that since in the old cases there is no scope of any sort of settlement, that will have to be disposed off on merits. To this expression, no motive can be attributed. Further, such allegations can be made against any Presiding Officers. As regards the second point, in the course of the trial of any case, when the matter is being heard; the Presiding Officer might express some opinions so as to elicit further information from the contestant. It does not mean that he would have made up his mind with respect to the decision to be taken in the case. The discussions are held and arguments are heard, a Presiding Officer is entitled to disclose his mind so that the respective Counsels can follow the trend of the Court and offer an appropriate explanation or reply. Such discussion only helps to clear the disputed questions in the case. It is too much to say that if any statements are made, it means that the Presiding Officer has made up his mind with respect to the decision in the case. If this be the position, no case can be heard by any Court. It cannot be expected that the Judges should be silent without expressing any opinion. A spinx like attitude is not expected from the Presiding Officer especially when he is trying a matrimonial case or litigation between very near relation. There should be an effective discussion, an effective attempt to conciliate and effective attempt to clarify the misunderstanding so that the disputes can be settled or a just and proper decision can be taken by the Presiding Officer. If in that process, the Presiding Officer takes any comments on merits of the case, it cannot be misunderstood as an expression of the decision. As regards the order refusing to summon a document, it is a judicial exercise of power. That cannot be a ground for transfer. The story regarding the attempt to influence the Presiding Officer has to be rejected in view of the denial of the same by the Presiding Officer. The following paragraph in his reply is sufficient to reject this allegation :

“10. I do not permit any of the parties to see me in the chambers. If both the parties insist that the Court shall take up the matter for reconciliation, then I take up for reconciliation only on Saturdays afternoon in view of Sec. 23 of the Hindu Marriage Act and Sec. 9 of the Family Courts Act. In this case, there was no such submission and hence there is no question of the petitioner having seen me in my chambers of outside. During the course of the entire proceedings, the respondent No. 1 appeared before the Court only twice or thrice.”

6. In this case, I am satisfied that the allegations made against the Presiding Officer are untenable and uncharitable. I am not prepared to accept any of the grounds set out by the petitioner in the transfer petition. Perhaps, on a stern view of the matter, it would have resulted in initiating action against the petitioner with respect to the allegation made in the transfer petition. I do not intend to do so at this stage. It will meet the ends of justice if the petition is dismissed with costs. The O.P. is dismissed accordingly.

Petition dismissed.

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