Calcutta High Court (Appellete Side)
Usharani Paul & Anr vs Jahar Lal Paul & Ors on 19 September, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1
19.09.2019
suman 03
Ct.25
C.O. 2551 of 2019
With
CAN 8943 of 2019
Usharani Paul & Anr.
Vs.
Jahar Lal Paul & Ors.
Mr. Partha Pratim Roy
Mr. Shibaji Kumar Das
...for the petitioners
Mr. Debjit Mukherjee
...for the opposite party
Defendant Nos.1(a) and 1(b) in Money Suit No.346 of
2015 presently pending before the learned Civil Judge
(Senior Division) , 3rd Court at Barasat have sought for
transfer of the said suit to a Court of competent jurisdiction
at Alipore in the District of South 24 Parganas mainly on the
ground that the plaintiff No.1 Jahar Lal Paul is a senior
advocate practising in Barasat Court. He has commendable
standing in the Bar. Other members of the Bar generally
respect him. As a result of such respect to plaintiff No.1
Jahar Lal Paul, other members of the Bar are not willing to
accept the brief for the defendant Nos.1(a) and 1(b) /
petitioners and refused to represent them at Barasat. As a
2
result, the petitioners have prayed for transferring the said
suit to any Court of competent jurisdiction at Alipore.
In course of hearing of the instant application
submissions are made at length by the learned counsels. It
is also learnt from the submissions made by the learned
counsels that a partition suit is now pending between the
parties. However, I think it prudent to confine myself on the
ground taken by the petitioners in support of their prayer for
transfer of the suit from Barasat to Alipore, viz., the
petitioners are not getting assistance of any advocate at
Barasat to defend their case specially against the plaintiff
No.1 Jahar Lal Paul, a senior practising advocate of Barasat
Court.
Mr. Partha Pratim Roy, learned advocate for the
petitioners draws my attention to pages 62 and 64 being part
of Annexure -(E) and Annexure-(F) to the application
respectively.
The said applications were filed on behalf of
respondent Nos. 1(a) and 1(b) /petitioners before the
learned trial Court praying for time to appoint a fresh advocate in the suit on their behalf to proceed with then case. It was averred in both the said two applications that 3 the learned advocate who used to conduct the case on behalf of the petitioners fell seriously ill and stopped attending the Court and Court proceedings. In the second application for time filed by the petitioners on 15th July, 2019 it was stated specifically that since Jahar Lal Paul, plaintiff/opposite party No.1 is one of the authors of the suit, no other advocate of local Bar is willing to accept the brief on behalf of the petitioners to show respect and solidarity on Mr. Jahar Lal Paul, plaintiff No.1. Mr. Roy candidly submits that the petitioners have not made out a ground that the plaintiff/opposite party No.1 has been influencing other advocates of the Court by virtue of his standing in the Bar. In other words, the petitioners have no allegations against the opposite party No.1. The fact remains that the petitioners are not getting assistance of any advocate practising at Barasat Civil Court because of the fact that the opposite party No.1 is a senior practising advocate of Barasat Civil Court and he commends great respect of his colleagues.
Mr. Debjit Mukherjee, learned advocate for the opposite parties, on the other hand, has raised serious objection against praying for transfer of the suit. In order to substantiate his contention he first submits and draws my 4 attention to certain orders passed by the trial Court in Money Suit No.346 of 2015 from the certified copy of the entire order sheets. It is pointed out by Mr. Mukherjee that the suit was filed on 11th August, 2015. The petitioners entered appearance in the suit on 28th November, 2016 within the statutory period of time. After appearance the petitioners filed written statement through their learned advocate. On the basis of the pleadings of the parties date was fixed for framing of issues. The petitioners filed suggested issues on 28th November, 2018. The Court also framed issues in the suit on 28th November, 2018 itself. Subsequently the suit was posted for recording evidence. At the stage of trial the petitioners filed an application under Order VI Rule 17 of the Code of Civil Procedure praying for amendment of written statement. The prayer for amendment of written statement was allowed by the learned Court below on 30th May, 2019 upon hearing both the parties. In the meantime a Co- ordinate Bench of this Court passed order in C.O. No.693 of 2019 directing that learned trial Court to dispose of the suit as expeditiously as possible without granting any unnecessary adjournment to either side positively within eight months from the date of communication of the order. 5
According to Mr. Mukherjee, when the petitioners found that the suit would be going to be disposed of at an early date, they took the plea of non-availability of any advocate from Barasat Civil Bar, resulting in filing of the instant application.
Relying upon a decision of this Court in the case of Smt. Monalisa Koley -vs.- Sri Sourav Sasaru reported in (2019) 1 CAL LT 76 (HC), it is submitted by Mr. Mukherjee that simply by making an allegation against some practising lawyers or apprehending bias of a Court, the petitioner cannot seek transfer of the Money Suit No.346 of 2015. On factual score, it is pointed out by Mr. Mukherjee that the petitioners did not disclose the names of the learned advocates to whom they had approached and who denied to represent the petitioners. In the absence of such specific allegation, omnibus statement is not at all sufficient and cannot be accepted as a ground for transferring the suit from one Court to another. On this score, Mr. Mukherjee also refers to a decision of Andhra Pradesh High Court in the case of G. Chinaswamy Naidu vs. K. Padmanabaiah reported in 2001 AIHC 1036 (A.P.). In the said report the petitioner prayed for transfer of a suit at execution stage on the ground 6 that the father of the decree holder is a leading practioner before the execution Court and there is every chance that the learned Judicial Officer may be biased and partitioned against the petitioner /judgment debtor.
In my considered opinion, the decision in G. Chinaswamy Naidu (supra) is not applicable under the facts and circumstances of this case because the petitioner has not made out any allegation that the trial Judge was biased and influenced by the presence of a senior advocate of a local Bar as plaintiff of the suit. Similarly, the principle laid down in Smt. Zohra Begum and others vs. VIIth Additional District Judge, Bareilly and others reported in 2001 A I H C 1310 and relied upon by Mr. Mukherjee in support of his contention is not applicable under the facts and circumstances of the case as it was held in the said decision that subjective suspicion in the mind of litigant that he would not get justice since opposite party of the local Bar Association cannot be said to be a ground for transfer of the case.
In the instant case, however, the petitioners have not pleaded that the trial Judge was influenced by the presence 7 of the plaintiff No.1 who is a practising advocate of that Court.
Mr. Mukherjee also submits an unreported decision of this Court delivered by a Co-ordinate Bench in the case of Chaitanya Dev Nandi vs. Somdev Maiti & Anr. (C.O. 2671 of 2017) on 6th February, 2018. In this judgment a Co-ordinate Bench of this Court held on satisfaction of the stage of the suit up to which it proceeded that there was no ground to transfer the suit to any other Court.
In fine, the ratio of the aforesaid decisions clarifies the following principles:-
(i) If a suit is proceeded with towards its culmination and in such process both parties are properly represented, the suit should not be transferred.
(ii) Mere allegation that a party of a suit is an advocate practising in the local Bar where the suit is pending or that he is a close relative of a party to the suit, cannot be a ground for transferring the suit until and unless it is found that there is a chance for the trial Judge of being biased and influenced as a result of 8 very presence of such learned advocate as a party to the suit.
(iii) Such apprehension that the petitioner may not get assistance of any advocate in a particular bar of a particular Court where the suit is pending cannot be assessed on the basis of objective allegation.
I am in conformity with Mr. Mukherjee that the petitioner has not made any subjective averment stating the names of the learned advocates to whom the petitioners had approached and were refused.
At this stage, Mr. Roy submits that, if necessary, the petitioners will make all such subjective averments by supplementary affidavit.
For proper adjudication of the matter and specially when the instant application cannot be rejected altogether on the basis of citations submitted by the learned advocate for the opposite parties I am of the view that the petitioners should be directed to file supplementary affidavit for better narration of paragraph 8 of their application.
9
The petitioners are at liberty to file such supplementary affidavit by 5th November, 2019 after serving copy of the same to the learned advocate for the opposite parties. The opposite parties are at liberty to file counter affidavit, if necessary, against such supplementary affidavit within one week from the date of receipt of such supplementary affidavit.
The matter be listed under the heading 'Contested Application' on 14th November, 2019.
Interim order which is in force in the instant proceeding be extended till 14th November, 2019.
Certified copy of order sheets of the Money Suit be kept with the record.
(Bibek Chaudhuri, J.)