Abraham Thomas Puthooran vs Manju Abraham on 3 January, 2022

[Cites 26, Cited by 4]

Kerala High Court

Abraham Thomas Puthooran vs Manju Abraham on 3 January, 2022

The appellant is the petitioner in Tr.P.(C)No.402 of 2021, a petition filed under Section 24 of the Code of Civil Procedure, 1908, seeking transfer of O.P.No.2364 of 2017 pending before the Family Court, Ernakulam, either to Family Court, Muvattupuzha or any other Family Court, as this Court may deem fit, for trial and disposal on merits. The 1 st respondent is the wife and the 2nd respondent is the daughter of the appellant. They filed O.P.No.2364 of 2017 against the appellant, under Section 7(1)(c) of the Family Courts Act, 1984, seeking a decree directing the appellant to return gold ornaments weighing 70 sovereigns given at the time of marriage to the 1st respondent or its present value with interest from the date of marriage till realisation. In the said original petition they sought various reliefs, including payment of a sum of Rs.50,00,000/- towards the marriage expenses of the 2nd respondent. In Tr.P.(C)No.402 of 2021, it is alleged that, on 07.07.2021, when O.P.No.2364 of 2017 came up for consideration, the Presiding Officer of the Family Court made certain observations against the appellant, as stated in Tr. Appeal (C)No. 10 of 2021 3 paragraph 7 of the Transfer Petition. The learned Single Judge called for a report from the Presiding Officer of the Family Court. Pursuant to that direction, the Presiding Officer submitted a report dated 03.09.2021. After considering the rival contentions, the learned Single Judge by the order dated 23.09.2021 dismissed Tr.P.(C)No.402 of 2021 with a cost of Rs.15,000/- and the appellant was directed to deposit cost before the Family Court, Ernakulam, within a period of two weeks from the date of the order, for payment to the respondents. Feeling aggrieved by the order dated 23.09.2021 of the learned Single Judge in Tr.P.(C).No.402 of 2021, the appellant is before this Court in this Transfer Appeal filed under Section 5 of the Kerala High Court Act, 1958.

2. On 21.10.2021, when this Transfer Appeal came up for admission, after hearing the arguments of learned counsel on both sides, this Court called for the records in O.P.No.2364 of 2017 pending before the Family Court, Ernakulam, including the memo filed by the Advocate Commissioner with the request to surrender warrant. The Presiding Officer of the Family Court has submitted a report dated 01.11.2021, wherein it is stated that, an Advocate Commissioner was Tr. Appeal (C)No. 10 of 2021 4 appointed in I.A.No.2700 of 2021 filed by the appellant herein to call upon the Manager, State Bank of India, M.G. Road Branch, Ernakulam, to produce certain documents relating to the safe deposit locker in the joint name of the appellant and the 1st respondent. The appellant was directed to pay the Commissioner's Batta and to file memo on 07.07.2021 and the case was posted to 12.07.2021 awaiting Commissioner's report. The appellant failed to pay the Commissioner's Batta and hence warrant could not be issued to the Commissioner. On 12.07.2021, I.A.No.2700 of 2021 was dismissed since the appellant failed to pay the Commissioner's Batta.

3. Heard the learned counsel for the appellant and also the learned Senior Counsel for the respondents.

4. The learned counsel for the appellant would contend that the conduct of the Presiding Officer of the Family Court, Ernakulam, referred to in paragraphs 7 to 10 of the statement of facts of the Transfer Petition has created a fear in the mind of the appellant that the court below is prejudiced against the appellant. The conduct of the Presiding Officer in meeting the 1st respondent in Chamber, in the absence of the appellant, made the appellant to believe that something seriously Tr. Appeal (C)No. 10 of 2021 5 prejudiced to the appellant dehors the merits of the case had happened. In the impugned order, while dismissing the Transfer Petition the learned Single Judge failed to appreciate the case of the appellant in the right perspective. The learned Single Judge traverse beyond the scope of a Transfer petition filed under Section 24 of the Code of Civil Procedure and entered an arena to which he was never invited or requested.

5. Per contra, the learned Senior Counsel for the respondents would contend that the order of the learned Single Judge dismissing the Transfer Petition filed by the appellant, for the reasons stated in the impugned order dated 23.09.2021 is neither perverse nor patently illegal warranting interference in this appeal. Since the appellant has not made out a case of bias on the part of the Presiding Officer, in order to seek an order of transfer under Section 24 of the Code, the learned Single Judge cannot be found fault with in rejecting the Transfer Petition by the impugned order dated 23.09.2021.

6. Section 24 of the Civil Procedure Code, 1908, deals with general power of transfer and withdrawal and Section 25 deals with the power of the Supreme Court to transfer suits, etc. As per sub-section (1) of Section 24, on the application of Tr. Appeal (C)No. 10 of 2021 6 any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the court from which it was withdrawn.

7. As per sub-section (2) of Section 24 of the Code, where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. As per sub-section (3) of Section 24, for the purposes of this section, (a) courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Tr. Appeal (C)No. 10 of 2021 7 Court; (b) 'proceeding' includes a proceeding for the execution of a decree or order. As per sub-section (4) of Section 24, the court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. As per sub-section (5) of Section 24, a suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it.

8. In Indian Overseas Bank v. Chemical Construction Co. [(1979) 4 SCC 358], the Apex Court held that the principle governing the general power of transfer and withdrawal under Section 24 of the Code of Civil Procedure is that the court should not lightly change the forum and compel the plaintiff go to another court, with consequent increase in inconvenience and expense of prosecuting the suit. A mere balance of convenience in favour of proceedings in another court, albeit a material consideration, may not always be a sure criterion justifying transfer. As compared with Section 24, the power of transfer of civil proceedings to another court, conferred on the Apex Court under Section 25 is far wider and so the amplitude of expression 'expedient in the interest of Tr. Appeal (C)No. 10 of 2021 8 justice' which furnishes a general guideline for the exercise of the power. Whether it is expedient or desirable in the interest of justice to transfer a proceedings to another court, is a question which depends on the circumstances of the particular case.

9. In Kulwinder Kaur @ Kulwinder Gurcharan Singh v. Kandi Friends Education Trust [(2008) 3 SCC 659] the Apex Court held that, Section 24 of the Code of Civil Procedure empowers a High Court or a District Court to transfer inter alia any suit, appeal or other proceeding pending before it or in any court subordinate to it to any other court for trial and disposal. The said provision confers comprehensive power on the court to transfer suits, appeals or other proceedings 'at any stage' either on an application by any party or suo motu. Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. On a reading of Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad Tr. Appeal (C)No. 10 of 2021 9 propositions as to what may constitute a ground for transfer have been laid down by courts. They are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; 'interest of justice' demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceedings. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the court feels that the plaintiff or the defendant is not likely to have a 'fair trial' in the court from which he seeks to transfer a case, it is not only the power, but the duty of the court to make such order.

10. In Jitendra Singh v. Bhanu Kumari [(2009) 1 SCC 130] the Apex Court observed that, the purpose of Tr. Appeal (C)No. 10 of 2021 10 Section 24 of the Code is merely to confer on the court a discretionary power. A court acting under Section 24 of the Code may or may not in its judicial discretion transfer a particular case. Section 24 does not prescribe any ground for ordering the transfer of a case. In certain cases it may be ordered suo motu and it may be done for administrative reasons. But when an application for transfer is made by a party, the court is required to issue notice to the other side and hear the party before directing transfer. To put it differently, the court must act judicially in ordering a transfer on the application of a party.

11. In Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation [(2009) 8 SCC 646] the Apex court reiterated that the power under Section 24 of the Code of Civil Procedure cannot be exercised to be ipsi dixit in the matter in which it has been done. The power to transfer a case must be exercised with due care, caution and circumstances.

12. In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant [(2001) 1 SCC 182 : AIR 2001 SC 24], a decision relied on by the learned counsel for the appellant, the Tr. Appeal (C)No. 10 of 2021 11 Apex Court held that, the word 'bias' in popular English parlance stands included within the attributes and broader purview of the word 'malice', which in common acceptation means and implies 'spite' or 'ill-will' [Stroud's Judicial Dictionary, 5th Edn., Vol.3] and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence available on record to come to the conclusion as to the existence of any element of bias which has resulted in the miscarriage of justice. In Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. [2000 QB 451] the Court of Appeal stated that it would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend upon facts which may include the nature of the issue to be decided.

13. In Kumaon Mandal Vikas Nigam Ltd. the Apex Court held that, the test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom

- in the event however the conclusion is otherwise inescapable Tr. Appeal (C)No. 10 of 2021 12 that there is existing a real danger of bias, the administrative action cannot be sustained. If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and in that context the Apex Court recorded its concurrence with the view expressed by the Court of Appeal in Locabail (U.K.) Ltd. [2000 QB 451].

14. In Lalita Rajya Lakshmi v. State of Bihar [AIR 1957 Pat 198] a decision relied on by the learned counsel for the appellant, a learned Single Judge of the Patna High Court held that the grounds of transfer under Section 24 of the Code of Civil Procedure is well established when the superior court is satisfied that the proceedings in one court constitute an abuse of the process of the courts; when it is clear that some prejudice has been created, and that a fair hearing, and an impartial adjudication, could not be reasonably expected, even though such a state of things has been brought about by the conduct of the very party applying for the transfer; where there is any reasonable ground for supposing that a prejudice Tr. Appeal (C)No. 10 of 2021 13 against a party's pleader has in any manner or measure affected the judicial attitude of the court towards the petitioner, or his case; and if a party feels that he is not likely to have a fair trial before a particular court. In such a case, however, it is true that the reasonable apprehension on the part of the litigant should receive consideration, but at the same time the apprehension must be such as a reasonable man might reasonably be expected to have. Therefore, if there are circumstances in a case, which raise a reasonable apprehension in the mind of the person applying for transfer, that he would not receive fair dealings at his trial, or, in other words, that he may not have a fair and impartial trial, and may not get justice in the court, where the suit is pending, the case should be transferred. In such a case, in order to decide whether the facts and circumstances are sufficient to raise such a reasonable apprehension in the mind of the party applying for transfer, the court should put himself in such a party's armchair; and then alone the court is at liberty to place himself in the position of, and, the same situation in which, the party himself stood, with the knowledge of all the facts with which the party was acquainted, and, then only the court can Tr. Appeal (C)No. 10 of 2021 14 see and judge for himself how these facts would have affected the party's mind, and, if they are reasonable and sufficient to raise the reasonable apprehension complained of in the mind of even a reasonable person.

15. In Lalita Rajya Lakshmi the learned Single Judge noticed that, as held in Rex v. Sussex Justices' [(1924) 1 KB 256] it is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly seem to be done. The learned Single Judge observed that, the pure fountain of justice must not only remain unsullied from within, but it must also, even on the surface and outside, appear and actually remain unpolluted, so that the confidence of the citizens of the country in the judicial administration of the country may remain unshaken. Confidence in the court administering justice on the part of both parties and of the public is a vital element in the administration of justice. If the admitted facts are apt or at least are capable of being used, to destroy this confidence, the supreme needs of justice are clearly such as not to allow the ordinary course of justice to be left untouched, but to transfer the cases from such court. It is, as such, not only Tr. Appeal (C)No. 10 of 2021 15 necessary that justice should be done; it is also necessary that it should be plain to all including those proceeded against that it is being done. See: Ram Prasad Mandal v. The King [AIR 1949 Pat 435].

16. In State of Punjab v. Davinder Pal Singh Bhullar [(2011) 14 SCC 770], on the scope of judicial bias the Apex Court observed that, there may be a case where allegations may be made against a Judge of having bias/prejudice at any stage of the proceedings or after the proceedings are over. There may be some substance in it or it may be made for ulterior purpose or in a pending case to avoid the Bench if a party apprehends that judgment may be delivered against him. Suspicion or bias disables an official from acting as an adjudicator. Further, if such allegation is made without any substance, it would be disastrous to the system as a whole, for the reason, that it casts doubt upon a Judge who has no personal interest in the outcome of the controversy. In Bhajan Lal v. Jindal Strips Ltd. [(1994) 6 SCC 19] the Apex Court observed that there may be some consternation and apprehension in the mind of a party and undoubtedly, he has a right to have fair trial, as guaranteed by Tr. Appeal (C)No. 10 of 2021 16 the Constitution. The apprehension of bias must be reasonable i.e., which a reasonable person can entertain. Even in that case, he has no right to ask for a change of Bench, for the reason that such an apprehension may be inadequate and he cannot be permitted to have the Bench of his choice.

17. Section 9 of the Family Courts Act, 1984 deals with duty of the Family Court to make efforts for settlement. As per sub-section (2) of Section 9, if, any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it think fit to enable attempts to be made to effect such a settlement.

18. In Jain Paul Kuriakose v. Asha Babu [2012 (4) KLJ 651 : ILR 2012 (4) Ker 839], in the context of Section 9 of the Family Courts Act, a learned Single Judge of this Court held that, since the family matters are sensitive in character the Judges of the Family Court have to play a greater participatory role. Parties will have to be called to the Chambers at times and this is only to achieve the object contemplated by the statute. Attempts to settle the matter by the court or mediators could only be taken as a part of Tr. Appeal (C)No. 10 of 2021 17 business of the court. Such sincere efforts by the Presiding Officer cannot be branded as prejudicial by the parties. As observed by this Court in Balachandran v. Meena [1999 (1) KLT 769], Family Courts Act constitutes the Judge to some extent also a conciliator of the dispute. In that process the Judge is forced to talk to the parties and try to bring them together. There is nothing wrong in the respondent's request to have the conciliation talk in the Chambers of the Judge. The very request of the respondent to advance the case and to post the same for counselling reveals her wish to have an early verdict, that too, through the path of peace and harmony.

19. In Anu Bhandari v. Pradip Bhandari [(2018) 6 SCC 389] in the context of Section 9 of the Family Courts Act, the Apex Court observed that under Section 9 of the Act, the court has a duty to make an endeavour to assist and persuade the parties in arriving at a settlement. Unlike many other legislations, the Legislature has cast a duty on the court in that regard. The jurisdiction is not just to decide a dispute, on the contrary, the court also has to involve itself in the process of conciliation/mediation between the parties for assisting them not only to settle the disputes but also to secure speedy Tr. Appeal (C)No. 10 of 2021 18 settlement of disputes. Such timely intervention of the court will not only resolve the disputes and settle the parties peacefully but also prevent sporadic litigations between the parties.

20. In Vishal G.Nair v. Sreedevi P.S. [2019 (5) KHC 323] a learned Single Judge of this Court reiterated the law laid down in Jain Paul Kuriakose, by holding that Section 9 of the Family Courts Act imposes a solemn duty on the Family Court to make efforts for settlement of matrimonial disputes, which are very sensitive and affects not only the parties to the matrimonial dispute, but the family members, relatives and the children. Attempt for settlement is definitely for an amicable settlement of disputes by way of reunion at the first instance and only in case of failure, for separation on mutually accepted terms. Though Section 9 imposes an onerous duty on the court to initiate process of settlement, the law does not prescribe the extent to which such efforts can be taken forward by the court. It only says that, the Judge can do so, consistent with the "nature and circumstances of the case" and for that, he can follow such procedure as he may think fit and proper. When the Judge deals with the dispute as a conciliator, he will have Tr. Appeal (C)No. 10 of 2021 19 to directly interact with both parties in the chamber. In the course of such attempt, definitely the Judge may have to express some views, may persuade the parties to express their respective opinion and in the course of such discussion it is very likely that factual scenario may be disclosed and the underlying interest of the parties may also be exposed unintentionaly. There is a further possibility that he may have to open up and make few bona fide comments or observations, which may be closely linked to the facts of the dispute, but are likely to be misunderstood by the parties, if the settlement does not take place. In case the attempt for settlement initiated by the learned Judge fails, that may tend to create an unwarranted impression in the minds of some parties as it happened in this case. This calls for striking a perfect balance between the obligation of the Judge to be an effective settler of dispute and to maintain the impartiality of an eventual adjudicator. Hence, it may be advisable that the Judge, while exercising his duties under Section 9 impress upon both parties the advantages of settlement and disadvantages of long drawn litigation and try to assist the parties and persuade the parties in arriving at a settlement of the dispute. If parties Tr. Appeal (C)No. 10 of 2021 20 arrive at a settlement, the settlement can be accepted by the learned Judge. Wherever Judge feels that highly contentious emotional issues are involved, or he feels that he may have to delve more into the depth of dispute, touching on the merits, it will always be better to refer parties to the mediation at that stage, rather than he himself further adorning the role of conciliator/mediator. Hence, duty cast on the Judge under Section 9, reconciled with the duty of the Judge to refer for mediation as held by the Apex Court, implies that the Judge shall initiate the parties into a settlement mood and his role shall not be one involving resolution of contentious facts, in the process of reconciliation or settlement.

21. In Buvan Mohan Singh v. Meena [(2015) 6 SCC 353] the Apex Court held that the Family Court Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and everestine bitterness. It leads to the cold refrigeration of the Tr. Appeal (C)No. 10 of 2021 21 hidden feelings, if still left. The delineation of the lis by the Family Court Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. The Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc.

22. In the Transfer Petition the case put forward by the appellant was that he has lost faith, trust and confidence in the court because the Presiding Officer is prejudiced. The Presiding Officer was not ready either to hear the submissions or look into the precedents pointed out by his counsel. The appellant apprehended that there will be no meritorious disposal of the cases. On 7.7.2021, when the counsel for the respondents insisted for a consideration of an application through the virtual court, the Presiding Officer directed the counsel and the parties to be present in the physical court on the same day at 1.00 p.m. Then the Presiding Officer pressurised the appellant Tr. Appeal (C)No. 10 of 2021 22 to pay the arrears of maintenance. When his counsel tried to oppose the direction, the Presiding Officer adjourned the cases to 12.07.2021 but observed that "if you are sticking onto your earlier stand even now, I will show you". The said observation was unwarranted, which reveals that the Presiding Officer is biased. After the sitting was over, an office staff made enquiries about the 1st respondent. The appellant told the staff that the 1st respondent had left. The staff said that the Presiding Officer wanted to meet the 1 st respondent in the chambers, which surprised the appellant, since meeting a party to a dispute in the chambers, without notice to the other side, was unfair. Therefore, the appellant was constrained to believe that something seriously prejudicial to him dehors the merits of the case is bound to happen. In Rajnesh v. Neha [(2021) 2 SCC 324] the Apex Court has observed that in maintenance cases the applicants should file a concise affidavit disclosing their assets, which has not been complied with by the respondents. The court is not paying heed to the non- compliance of the above direction. On 12.7.2021, when the cases were called in the virtual court, the Presiding Officer again directed both parties to be present in the physical court. Tr. Appeal (C)No. 10 of 2021 23 The Presiding Officer was reluctant to hear the submission of the appellant and insisted him to bring his counsel who was laid up. The Presiding Officer declared in the open court that she had not called the 1st respondent to meet her in the chambers, but later in the virtual court she admitted that she had enquired about the 1st respondent to explore the possibility of a settlement. The observations, acts and omissions of the Presiding Officer are neither judicial nor judicious. Hence the appellant seeks transfer of O.P.No.2364 of 2017 to the Family Court, Muvattupuzha or any other Family Court.

23. The learned Single Judge called for a report from the Presiding Officer of the Family Court, Ernakulam, who has submitted a report dated 03.09.2021, wherein it is stated as follows:

"When the matters came up for hearing on 07.07.2021 specific orders were passed by this Court in M.P.No.355 of 2021 filed by the respondent for summoning a witness and an Advocate Commissioner was appointed to inspect the joint bank locker of the couple. On that day, submissions were made from both sides to further explore the possibility of an amicable settlement in the matter and both sides requested the matter to be considered in Chamber counselling on a further date. That time regular pre-adalath talks were being chaired by Tr. Appeal (C)No. 10 of 2021 24 Smt.N.Leelamani, former Judge, Family Court, in respect of family court cases. Due to pressure of work, a chamber counselling on a near date was found impossible and instead, I thought it better to refer the parties for pre-adalath talks. So after retiring to chamber and on ascertaining that Smt.Leelamani was still conducting pre- adalath talk session, I sent my staff attached to pre- adalath matters to verify whether the parties left the premises so as to send them for pre-settlement talk on that day itself. As I was told that one of the parties has left the court premises, the matter could not be referred for pre-adalath talks on that day. This is what actually happened on 07.07.2021. The enquiry made by my staff about the presence of parties for enabling settlement talk by the Judicial member is twisted and misinterpreted by the respondent in such a way that I have called his wife, the petitioner to my chamber. There was no occasion for me to call any of the parties to my chamber and it is not needed at all. I did not do any act or omission either non- judicious or non-judiciary as alleged. In fact, it was the respondent/complainant who once sought permission to meet me in chamber when I very specifically directed the Commissioner to complete the recording of evidence and to submit report. Since he is a party litigant in the given case, permission was not accorded to him."

24. In the impugned order the learned Single Judge noticed that the trial in O.P.No.2364 of 2017 commenced on 13.02.2019 and the respondents' evidence was closed on 18.01.2020. RW2 was examined on 11.01.2021. Although the Tr. Appeal (C)No. 10 of 2021 25 appellant was cross examined on four postings, recording of his evidence was not completed. The appellant's evidence was closed on 06.07.2021. On 07.07.2021, that the appellant filed Annexure A10 application to summon additional documents and recall RW2. On the same day, the Court appointed an Advocate Commissioner to obtain the documents and directed the appellant to deposit commission batta. But the appellant failed to comply with that condition. Therefore, the Family Court dismissed that application on 12.07.2021. The appellant has not challenged that order.

25. In Shiju Joy A. v. Nisha [2021 (2) KHC 462], a decision relied on by the learned Senior Counsel for the respondents, a Division Bench of this Court issued various directions to the Family Courts for expeditious disposal of pending matters. As per the said decision, the Presiding Officers shall take immediate steps to refer all pending cases to mediation, if not referred so far.

26. In the impugned order, the learned Single Judge noticed that, the trial in O.P.No.2364 of 2017 commenced on 13.02.2019, i.e., 2½ years back, but the cases have not reached anywhere. Therefore, this is a fit case in which the Tr. Appeal (C)No. 10 of 2021 26 Family Court has to follow the special list system, as directed by this Court in Shiju Joy. A. The learned Single Judge noticed that, in Annexure A6 judgment dated 31.08.2016 in O.P.(Crl.)No.443 of 2016 this Court specifically directed the Family Court to refer the parties to mediation, in the event of both sides making a request for the same.

27. In Sini v. Suresh Jyothi [(1996) 1 KLT (SN) 13 : AIR 1996 Ker 160] a Division Bench of this Court observed that mere apprehension of the petitioner-appellant is not sufficient to transfer a case from the file of the court to another. A reading of the said decision would show that, in that case the ground raised for transfer of O.P. (HMA) No.395 of 1995 from the Family Court, Thiruvananthapuram to the Family Court, Kollam, was that the Presiding Officer of the Family Court, Thiruvananthapuram made certain comments adverse to the interest of the appellant and she apprehends that she will not get justice from that court. The learned Single Judge held that no personal bias or ill will is attributed against the Presiding Officer of the Family Court and on the basis of flimsy ground the case cannot be transferred to another court. Before the Division Bench, the learned counsel for the appellant Tr. Appeal (C)No. 10 of 2021 27 contended that the opposite party had telephoned to the appellant's father that the husband would secure favourable orders from the Family Court. The Division Bench noticed that the appellant had no case that the Presiding Officer of the Family Court passed any adverse order. Mere apprehension of the appellant is not sufficient to transfer a case from the file of the court to another. Before the Division Bench, the learned counsel for the appellant further contended that the Presiding Officer of the Family Court is pressurising the appellant to settle the criminal case pending between the parties and persuading her to stay with her husband. The Division Bench observed that, if any persuasion to settle the matter was made by the court, that could only be taken as a part of the business of the court. As regards every proceedings before the Family Court, it is the duty of the Presiding Officer to make earnest endeavour to settle the matter. If any such sincere effort is made by the Presiding Officer, parties shall not interpret it as a coercive step to come to some terms, and on that basis, the case pending before one court cannot be transferred to another court, especially when the parties on either side reside in the same city and the court is nearby to their residence. Tr. Appeal (C)No. 10 of 2021 28

28. In the impugned order, the learned Single Judge noticed that, on 07.07.2021, both parties made a request to the Presiding Officer to hold a chamber counselling. The Presiding Officer thought it fit to refer the parties to a former Judge, who holds pre-adalath talks within the court complex. After confirming the availability of the former Judge, the staff enquired whether the 1st respondent was present in court. In the impugned order, the learned Single Judge found nothing wrong in the procedure adopted by the court to refer the parties for conciliation, since Section 9 of the Family Courts Act and the law on the point mandate that the Presiding Officer of the Family Court shall at any time of the proceeding explore the possibilities of a settlement. The learned Single Judge noticed that, it is the above enquiry that has irked the appellant and been blown out of proportion. The appellant has not substantiated whether the Presiding Officer has actually spoken to the 1st respondent in her chambers between 07.07.2021 to 12.07.2021. Even otherwise, as held by this Court Sini [(1996) 1 KLT (SN) 13] and Jain Paul Kuriakose [2012 (4) KLJ 651], talking to a party in the chamber by the Presiding Officers of the Family Courts is part Tr. Appeal (C)No. 10 of 2021 29 of the business of that court.

29. The learned counsel for the appellant would contend that the observation by the Presiding Officer after hearing Annexure A7 petition in part, without reference to the decisions referred to in Pathumma v. Cholamarakkar [2008 (3) KLT 887], Yousuff v. Nafeesakutty [2020 (1) KLT 369] and Abhilasha v. Parkash [2020 (6) KLT 341 (SC)] in the context of Section 125(1)(c) of the Code of Criminal Procedure, 1973 was quite unwarranted and clearly reveals bias of the Presiding Officer of the Family Court, either in respect of the subject matter involved or in favour of the respondents herein.

30. The appellant has no case that the Family Court has passed any orders contrary to the law on the point. Passing of an erroneous order by a court is not a ground for transfer under Section 24 of the Code and it is for the aggrieved party to challenge that order before the appellate or revisional court by filing an appeal or revision or by invoking the supervisory jurisdiction under Article 227 of the Constitution of India.

31. In paragraph 30 of the impugned order, the learned Single Judge observed that, though for the last five years the Tr. Appeal (C)No. 10 of 2021 30 appellant had reposed faith and trust in the court it was only due to the alleged two incidents on 07.07.2021 and 12.07.2021 he cries out the foul of bias. The learned counsel for the appellant would point out that the present Presiding Officer of the Family Court took charge much after the filing of O.P.No.2364 of 2017. In paragraph 26 of the impugned order, the learned Single Judge observed that, despite this Court passing Annexure A6 judgment dated 31.08.2016, directing the appellant to pay interim maintenance to the respondents at the rate of Rs.25,000/- per mensum, not a single Rupee has been till the date of the impugned order. Instead the appellant has raised untenable objections to Annexure A7 execution petition filed by the respondents to realise an amount of Rs.4,80,000/- due towards arrears of interim maintenance. The learned counsel would further point out the observation made by the learned Single Judge in paragraph 32 of impugned order as to the antecedents of the appellant and non-compliance of Annexure A6 judgment, etc. As rightly pointed out by the learned counsel for the appellant, the 1 st respondent in Annexure A7 petition has admitted that she had received Rs.7,70,000/- after Annexure A6 order. The appellant Tr. Appeal (C)No. 10 of 2021 31 has stated in Annexure A8 counter affidavit that he had paid Rs.8,84,910/- as on 12.10.2020. Therefore, Annexure A8 would reveal substantial payments made by the appellant to the 1st respondent. Therefore, we find that the above observations made by the learned Single Judge in the impugned order dated 23.09.2021 are unwarranted.

32. When transfer of a case is sought on the allegation of bias of the Presiding Officer of a court or on the ground of fear of not getting justice, it becomes the bounden duty of the court to ascertain as to whether the ground of transfer has been substantiated by the litigant or not, since transfer of a case on such grounds casts aspersion upon integrity and competence of the Presiding Officer. A petition filed under Section 24 of the Code seeking transfer of case shall not be based on conjectures and mystic maybes. The onus is on the person who alleges bias to substantiate that his apprehensions are reasonable genuine and justifiable.

33. In the instant case, the appellant filed the Transfer Petition invoking the provisions under Section 24 of the Code, without a reasonable apprehension of bias. The learned Single Judge, in the impugned order dated 23.09.2021, found that Tr. Appeal (C)No. 10 of 2021 32 the aspirations are without bona fides or substantial materials, which are only a ruse to further protract the proceedings. Therefore, the learned Single Judge dismissed the transfer petition with cost of Rs.15,000/-.

34. In Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust [(2005) 4 KLT 865] a Full Bench of this Court held that, when an application for transfer or withdrawal of a suit from one court is made under Section 24 of the Code of Civil Procedure, the court has to adjudicate that matter regarding transfer or withdrawal after issuing notice to the parties interested and after giving an opportunity of hearing. An order passed after such an adjudication is certainly appealable under Section 5(i) of the Kerala High Court Act. The Full Bench held further that, even though an order passed at the instance of one party to the suit by the single Judge under Section 24 of the Code is appealable under S.5(i) of the Kerala High Court Act, a word of caution is also necessary. When an appeal is filed under Section 5(i) of the Kerala High Court Act against the order passed under Section 24 of the Code of Civil Procedure by a learned Single Judge, the Division Bench must be reluctant to interfere in the matter unless it is manifestly Tr. Appeal (C)No. 10 of 2021 33 illegal and erroneous or carrying grave or substantial injustice.

35. Viewed in the light of the law laid down in the decision referred to supra, we find no reason to interfere with the impugned order of the learned Single Judge, since the appellant has not made out a case warranting interference in exercise of the appellate jurisdiction of this Court under Section 5 of the Kerala High Court Act.

In the result the appeal fails and the same is accordingly dismissed, subject to the observation in paragraph 31. No order as to costs. Registry to return the LCR.

Sd/-

ANIL K. NARENDRAN, Judge Sd/-

P.G. AJITHKUMAR, Judge bkn/-

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