Calcutta High Court
Shrimati Nupur Agarwal vs Amit Agarwal on 24 April, 2000
Equivalent citations: (2000)3CALLT202(HC)
JUDGMENT P. K. Samanta, J.
1. This revislonal application is by the wire/defendant in Matrimonial Suit No. 244/98. The said suit is presently pending before the Court of Additional District. Judge, 3rd Court, Bafasat and in fact the examination in chief of the husband/plaintiff has been completed. This revisional application arises out of an order dated 24th March. 2000 passed by the said Additional District Judge rejecting the petition of the wife/ defendant under section 24 of the Code of Civil Procedure for transfer of the said Matrimonial Suit to any other Court of the Additional District Judge of 24-Parganas, (South) at Barasat.
2. The case made out by the wife/defendant in the said petition under section 24 of the Code of Civil Procedure is that the learned Court in course of recording evidence of the husband/plaintiff made comments that the wife should file an application under section 13B of the Hindu Marriage Act as otherwise the decree for divorce is inevitable in the suit, and that the learned Court did not grant adjournment of the hearing of the suit even when the learned advocate for the wife/defendant disclosed to the Court that one of his other matters was called on by the other Court and also refused to grant an adjournment of the hearing of the suit on 22nd March, 2000 even when such adjournment was prayed for on the ground that the wife/defendant was required to leave Calcutta on the said date for appearing in the M.B.A. Examination and would not be available in station till 6.4.2000. Further in support of the application under section 24 of the Code of Civil Procedure it was alleged that the learned Judge marked certain documents as exhibits which should not have been marked as such and even the application for expunctlon of the said documents from the records was rejected. Accordingly, it was contended that the wife/defendant has the reasonable apprehension of not getting a fair trial and justice from the Court.
3. It may be mentioned in this connection that in relation to alimony pendente lite and litigation costs in favour of the wife/defendant the matter came up before this Court in the revislonal jurisdiction. This Court apart from modifying the alimony pendenle llte and litigation cost upon agreement between the parties, disposed of the revislonal application with the direction upon the learned Judge to dispose of the suit as expedltiously as possible since it was otherwise ready and in no case beyond April 30, 2000. The suit was thereafter taken up for peremptory hearing on 21.3.2000, when all the troubles started.
4. Mr. Sudish Dasgupta, learned senior advocate appearing on behalf of the wife/defendant upon reference to the decision of this Court reported in 1982(2) CHN 49 (Shethia Mining & Mfg. Corpn. Ltd. v. Khas Dharmaband Colliery Co. Pvt. Ltd. contended that the order for disposal of the suit within a particular date was in the nature of an order in terrorem so that the disposal of the suit is not delayed unnecessarily and for an indefinite period but such an order fixing a deadline for disposal of the suit under no circumstances should be taken to mean that no adjournment of the hearing of the suit would be allowed even under compelling circumstances, which may even result in crossing the deadline fixed by this Court. Mr. Dasgupta, upon reference to the Division Bench decision reported in 80 CWN 777 (Gorachand Dos v. Dipall Das) and (Lalita Rajya Lakshmi & Ors. v. State of Bihar & Ors.) contended that each of the allegations made by the wife/defend ant such as, refusal of adjournment of hearing of the suit even on the grounds aforesaid, marking of certain documents as exhibits and the aforesaid remark advising the defendant/ wife to file a petition under section 13B of the Hindu Marriage Act as the decree of divorce is inevitable in the suit, should not be taken in isolation, and if taken together it has the cumulative effect of giving rise to a reasonable apprehension in the mind of the wife/petitioner. Since, justice should not only be done but it should manifestly and undoubtedly seem to be done, so far the administration of Justice and the parties to the proceeding to have confidence upon the Court trying the proceeding, the petition for transfer of the case should have been allowed.
5. Under section 24 of the Code there is no right vested on the defendant to get a case transferred from the Court competent to try the case because the plaintiff as dominus litis has the right to choose any forum the laws allows him. But the High Court or the District Court even at the Instance of the defendant in exercise of power under section 24 may transfer a case to any Court competent to try or dispose of the same and there is no doubt that transfer can be ordered when a party to the proceeding has the reasonable apprehension that justice will be denied to him. Therefore, it is to be seen in this case whether the wife/defendant has such reasonable apprehension on the allegation made by him.
6. In this case though marking of the documents as exhibits in the suit was contended by Mr. Saktinath Mukherjee, learned senior advocate for the husband/opposite party, to be absolutely in accordance with law in the facts and circumstances under which the concerned documents came into being, but without going into such controversy it can safely be said that such marking of exhibits could at best be alleged to have been made Improperly, at this stage. Impropriety thereof, if any, has not yet been established by any Court of law nor such impropriety was alleged by the wife/petitioner in any other forum. This revlslonal application being not against marking of any documents as exhibits in the above matrimonial suit, there is also no scope for making any probe thereof. Therefore an alleged improper order of procedural irregularity simpliciter, cannot and should not under any circumstances be taken to mean and include that the judge and/or the Presiding Officer trying the suit acted with a bias and/or malice towards the party against whom the same was made. The decision of the Supreme Court (Pushpa Devi Saraf & Anr. v. Jat Narain Parasrampurta & Ors.) cited by Mr. Dasgupta for the proposition that because of the application made by the wife/petitioner for transfer of the case, the Presiding Officer may be duly affected by the allegations made therein, so to justice seem to have been done in this case, the suit should be transferred to any other Court as has been done by the Supreme Court, went to the extent of laying down the proposition that correctness or otherwise of orders passed by a Court should not form the basis of an order for transfer of a case. The Supreme Court accordingly held that report of the Presiding Officer, if and when called for, should normally be confined to the allegation made against the Impartiality or fairness of the Judge and not with respect to the correctness or otherwise of the orders passed by him. Thus, in all possible views 'an Improper or an Incorrect order or in other words the procedural irregularity which may effect the orders and/ or the decision that may be made in the suit cannot be the grounds for transfer of a case. Therefore, such grounds cannot be taken into account for the purpose of having a cumulative effect on the allegations so as to give rise to the reasonable apprehension in the mlnd-of the wife/petitioner of not getting a fair trial and justice in the suit.
7. Therefore, there remains only the allegations of refusal of the adjournment of hearing of the suit and the remark, if therebe any, made by the Presiding Officer suggesting the defendant/wife to make an application under section 13B of the Hindu Marriage Act as decree of divorce would be Inevitable in this case. So far as the remark and/or the suggestion put to the wife cannot on its face creat a reasonable apprehension in the mind of the wife/defendant. Because the remark and the suggestion to the wife as aforesaid taken together would certainly go against the interest of the husband. If a decree of divorce is Inevitable in the suit, then an application by the wife under section 13B of Hindu Marriage Act by taking the suit off from the board of hearing would certainly delay the process for a decree of divorce. Again if the remark, that the decree of divorce is Inevitable in the suit, is taken Independently, and exclusively then also the same cannot form the foundation of a reasonable apprehension in the mind of the defendant/wife because Court while taking evidence in the suit may under certain circumstances have some Impression on the merit of the case and therefore to say that the judge is biased if he expresses some opinion on the merits of the case after hearing the case for a day is certainly mala fide, if not even presumptuous. Reference may be drawn to the Division Bench Judgment of Kerala High Court reported in AIR 1972 Kerala 263 (MM. Joha v. State of Kerala).
8. On the question of refusal of adjournment of the hearing of the suit, though I am not Inclined to entertain the allegations made on behalf of the husband that it has transpired in the meantime that the letters Inviting the defendant/wife/petitioner to appear in the M.B.A. examination, produced to get an adjournment in the suit, were fabricated by the wife/defendant, as all those Institutions have replied in writing to the husband/opposite party that no such letters were Issued to the defendant/wife, but 1 am of the view that whether High Court had directed or not for disposal of the case within a particular date, a mere refusal of an adjournment simpllciler while day to day evidence was going on in the suit, by no means can be stretched to have the Imputation of bias and malice against the Presiding Officer of deciding the case against the party to whom such adjournment was refused. No Court is under any compulsion under law to grant an adjournment at the peremptory hearing stage of the suit. Such an adjournment at the peremptory hearing stage of the suit is prejudicial to both the parties and the administration of justice.
9. Thus when each of the allegations as aforesaid Independently and separately do not constitute a ground for transfer of a case under section 24 of the Code then their cumulative effect will not also create any apprehension in the mind of the litigant that the Justice will not be done nor it will seem in any manner that justice will not been done. Because the basic element of the disposition of the Presiding Officer in favour of a litigant in a contest was missing in each of the allegations. The missing element is each of the allegations/grounds cannot be brought into being by more putting together the allegations and/or the grounds. Therefore the decisions cited by Mr. Dasgupta reported in 80 CWN 772 and do not come in his aid.
10. I am therefore of the view that the defendant/wife/petitioner on the pleas as aforesaid was not at all entitled to a transfer of the case. There is no Illegality and/or material irregularity in the exercise of Jurisdiction by the learned District Judge in dismissing the application by the wife/ petitioner under section 24 of the Code. However, considering the facts and circumstances of this case, I observe that the suit be disposed of by 30th June, 2000 instead of 30th April, 2000 as directed by the Court.
This Revisional Application is accordingly dismissed.
11. Application dismissed