Calcutta High Court (Appellete Side)
2251/2010 on 20 January, 2011
C. O. 2251 of 2010
(Assigned)
20.1.2011
Sl.34 Mr. Utpal Basu Mallik
--- for the petitioners.
Seen affidavit of service and notice upon all the opposite parties through registered post with A/D. Service is accepted.
None on behalf of the opposite parties appears on repeated calls though the matter is running in the list for hearing as Contested Application. Therefore, the same is taken up for consideration in presence of the learned lawyer for the petitioner.
Heard learned lawyer for the petitioners. The instant revisional application is directed against order no. 22 dated 7.4.10 passed by the learned District Judge, South 24-Parganas in Misc. Case No. 936 of 2009.
By such order the learned District Judge has allowed an application under section 24 CPC filed by the defendants for transfer of Title Suit No. 60 of 2009 pending before the learned Civil Judge (Junior Division), 3rd Court, Baruipur and transferred the same to the court of learned Civil Judge (Junior Division), 5th Court at Alipore for disposal in accordance with law.
Being aggrieved by and dis-satisfied with such order the instant revisional application has been preferred by the plaintiffs/petitioners. Learned lawyer for the petitioners herein contends that in their application under section 24 CPC the defendant-club has prayed for transfer of the said suit on the ground that Mr. Tamal Banerjee, son of plaintiff no.1 is an influential practising advocate of Baruipur Court and as such plaintiff no.1 can manipulate the entire scenario adverse to the interest of the defendants who are now unable to engage any competent learned lawyer from the Baruipur Bar as they are refusing to accept the brief on behalf of the defendants petitioners. But in their counter affidavit against the objection filed by the opposite parties/plaintiffs they have pleaded a new ground in para.4 of the petition to the effect that the said Tamal Banerjee is practising at City Civil Court at Calcutta and it would be convenient for him to 2 pursue the case at a nearer place and as such the case may be transferred to Alipore Judges Court. After due consideration of all the materials on record and the rulings referred to and relied upon by the contending parties mentioned in the order under challenge the learned District Judge has allowed the prayer and passed the order, the gist of which is quoted below:
"So, upon consideration of the above stated prevailing circumstances at Baruipur court, I think that the importance of securing the confidence of the parties in the fairness and impartiality of the court and assurance of a fair trial are the first prime consideration of dispensation of justice. Besides, the paramount consideration must; be to see that justice according to law is done, if for achieving that objective, the transfer of the case is imperative. Besides it, I have perused the entire chapter including the provisions of Sec. 24 of CPC. The perusal of the entire provisions of Sec. 24 of CPC provides exception to the procedural law that a court having territorial jurisdiction can only try a suit, a competent court of pecuniary jurisdiction even, if having no territorial jurisdiction, can try a suit or hear an appeal or deal with and dispose of other proceedings, if transferred to that court and such disposal can not be regarded as without jurisdiction. If that be not the legal position of Sec. 24 of CPC., no suit or appeal can be transferred to any other court even having no territorial jurisdiction. So, I am in the view that there is such contemplation behind the introduction of such provision of sec. 24 of C. P. Code."
After careful consideration of the submissions made by learned lawyer for the petitioners as well as the said order I find that the apprehension that the son of the plaintiff no.1 is an Advocate and as such able to manipulate the situation in his favour is equally applicable to any court where the suit is to be disposed of. There is serious aspersion upon the trial court that such a lawyer can manipulate the court also which is apprehended and unfortunately without any valid and reasonable grounds the District Judge has conceded to such apprehension at the risk and dignity of the court at Baruipur. Obviously for the purpose of fair trial and dispensation of justice the case can be transferred to any other court but when there is aspersion upon the learned court that he may be influenced by any lawyer who happens to be the son of the plaintiff no.1 it does not appear to be the outcome of any judicial conscience after application of mind without fear or favour for which judges are committed. Therefore, I hold that unless the court trying the case places on record his dis-satisfaction or embarrassment in dealing with the case such presumption while considering application under section 24 CPC will not only be unfortunate but opposed to the letter and spirit of the provisions of section 24 CPC.
Merely refusal by two learned lawyers of the Baruipur Bar cannot be also a valid ground for transfer since from the records it appears that there are several 3 Advocates at Baruipur Bar and in fact the defendants are contesting some criminal cases at Baruipur Court by engaging learned lawyers of Baruipur Bar.
Considering all these aspects, I hold that the impugned order is not sustainable in law and as such the same is set aside. The Ttile Suit No. 60 of 2009 in question is withdrawn from the file of learned Civil Judge (Junior Division), 5th Court, Alipore and shall be transferred to any civil court at Baruipur to be chosen by the learned District Judge at Alipore, South 24- Parganas.
The revisional application is, thus, disposed of.
Let a photocopy of this order be sent to the learned District Judge at Alipore.
Urgent certified photocopies of this order, if applied for, shall be given to the parties subject to compliance with all requisite formalities.
(Syamal Kanti Chakrabarti, J.) rnr.