Essar Power Transmission Co.Ltd. vs Bhagvatbhai Chimanbhai Mody on 20 March, 2020

[Cites 22, Cited by 1]

Gujarat High Court

Essar Power Transmission Co.Ltd. vs Bhagvatbhai Chimanbhai Mody on 20 March, 2020

1. The revisionist seeks to assail the order dated 13.03.2020 rendered by the learned District Judge, Bharuch, Page 1 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT in Civil Misc. Application No. 123 of 2019 rejecting the application moved under Section 24 of the Code of Civil Procedure (for short "CPC").

2. Civil Misc. Application No. 3 of 2017 and other allied matters were instituted by as many as 139 farmers for compensation aggregating to Rs.932 crores against the user of their portion of land for commissioning transmission wire for the supply of electricity to the large number of villages. The merits of the case although have been highlighted in this revision application pointing out the orders made by this court in Letters Patent Appeal as also by the Apex Court which orders the petitioner herein was found on the wrong feet as it deviated from the original line of commissioning the transmission as sanctioned by the Central Government, this Court as such is not concerned with the said litigation in this revision application.

3. Civil Misc. Application No. 3 of 2017 and allied matters were consolidated and were being heard by the learned nd 2 Additional District Judge, Ankleshwar, at one point of time the hearing of the same was expedited by this court, it appears from the rival submissions the case was fully heard by outgoing learned Judge who was transferred and thus the judgment was not delivered.

th The case was then listed with the learned 5 Additional District Judge, Ankleshwar, on the same being transferred to him on 19.09.2018. The daily proceedings recorded since the said date would indicate the smooth conduction of the proceedings at various stages in Page 2 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT absence of the objections and reservations. What can be seen from the daily proceedings record the arguments were concluded by the claimants and the matter was thereafter adjourned from time to time at the instance of one party or the other without any objection or without any grievance or attribution to a party of delaying the matter.

4. From the averments made in the application for transfer of the case under Section 24 of CPC, it appears that the cloud of suspicion commenced obsessing the mind of the authorised representative of the petitioner company Mrs. Parul Desai who was present on the said date in the court. As, according to her, despite the matter being fixed for the arguments from the petitioner and despite the advocate for the petitioner being present in the court for arguments, it came to be adjourned on the ground that the court fee, which was once the matter of controversy under Order 7 Rule 11 of CPC, was not affixed on the application.

5. The petitioner also stated in Civil Misc. Application No. 123 of 2019 wherefrom this case arises that the applicant was approached by some unknown person who offered securing of the favourable orders to the company for gratification to which the applicant did not agree.

6. The cloud of suspicion, according to the applicant, strengthened further on 18.10.2019 when she was present in the court representing the company, the advocate for the opponent was also present and were Page 3 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT waiting for the learned Judge concerned to adorn the dais and call out the matter. However, according to her, the peon of the court informed the advocate on record for the claimants that the learned Judge concerned wanted to meet him in his chamber whereupon the advocate for the opponents went inside the chamber of the learned Judge concerned and came out after more than half an hour or 40 minutes and then the learned Judge adorned the dais and the bench clerk informed the said authorised signatory of the company as also its advocate that the hearing has been adjourned with the consent of the advocate of the opponent. Principally the said incident i.e. the incident dated 18.10.2019 particularly summoning of the advocate in his chamber; his being there for half an hour or 40 minutes and then adjournment of the matter involving a huge stake i.e. 932 crores is cited as a pivot of suspicion and the apprehension that no justice would be done. Under the above circumstances the issue was raised in the transfer application calling upon the learned Principal District Judge concerned to exercise the jurisdiction vested in him by Section 24 of CPC in the interest of justice. The learned Judge, however, after hearing the parties, felt that the apprehension of bias was ill-founded and on that ground refused to transfer the case to other court. It is in the light of the said facts and circumstances this court is required to examine the jurisdiction of the court below in rendering the impugned order. The question that is sought to be raised is whether the learned Principal District Judge has appreciated the concept of bias in true judicial perspective.

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7. It is also required to be noted that after the said incident, the vigilance department of this court was moved by the petitioner with an application on 16.12.2019 requiring the probe in the conduct of the learned Judge concerned as also his personal details as regards financial strength and the properties of the learned Judge concerned were also solicited in the said application as also C.C.T.V. footage of the camera installed outside the chamber of the learned Judge; the fate of this vigilance complaint is not known as on date.

8. The aspect of vigilance did not emerging the pleadings of the applicant but was comprehended on the basis of inquiry made by the learned Principal District Judge. The learned District Judge also inquired from the concerned registrar of the subordinate court to know whether the bench clerk attached to the learned Judge concerned was on leave, as that seems to be one of the controversy and the act of adjournment is sought to be protected on the ground that, in absence of bench clerk, the required assistance was not available to the learned Judge.

9. From the impugned order it appears that the learned Principal District Judge examined the merits of the case on the basis of the apprehension vouched by the petitioner. As to visit of unknown person with an offer of securing favourable order for gratification; It was held that, in absence of substantial material, the aspect was not proved, and the averments in that regard were malicious and vexatious as also were aimed at maligning the reputation of the presiding officer. Although the applicant averred in her application that the advocate Page 5 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT for the claimants was summoned by the learned Judge in his chamber on 18.10.2019, the learned Principal District Judge in para 18 has recorded that "the advocate on record of the opponent had gone inside the chamber of learned Judicial Officer". The phraseology would make a mark difference inasmuch as, summoning would necessarily imply the requirement of the advocate in the chamber with some purpose; whereas, going into the chamber of the learned Judge without being summoned would mean that the purpose lay with the advocate concerned and not the Judge. The learned Principal District Judge therefore ought to have correctly and precisely recorded the pleadings.

10. The learned Principal District Judge was also of the opinion that the purpose of application was to malign and demoralize the learned Judge concerned. The learned Principal District Judge also doubted the statement of the applicant in the pleadings when she stated that the bench clerk of the learned Judge had informed the authorised signatory of the applicant company as well as its advocate that hearing of the application has been adjourned on the ground that on inquiry by him from the Registrar of the Ankleshwar rd Court; he learnt that the bench clerk of the learned 3 Additional District Judge was on leave on that day. According to the learned Principal District Judge, thus the bench clerk being on leave, the statement afore- mentioned stood belied and affidavit was untrue. It also appears from the impugned order that the learned Judge was not satisfied about the attribution to the learned Page 6 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT advocate for the opponents - claimants having gone inside the chamber of the learned Judge concerned in absence of explanation of the manner of going inside as also in absence of explanation as to what demeanor of the learned advocate or the learned Judge has caused reasonable apprehension as to prejudice and bias in the mind of the applicant. According to the learned Principal District judge, in absence of pleadings to that effect the apprehension was ill-founded.

11. According to the learned Principal District Judge, the petitioner did not come to the court with clean hands but was masking the evil intention of the company to derail the process of law and adjudication. The learned Principal District Judge has also attributed the impunity to the petitioner for moving the vigilance department of the High Court and soliciting several information as indicated above and dispelled the contention of the petitioner that the learned Judge concerned was not being targeted but the transfer was asked for only on the principle of bias without attributing any ill-intention to the learned Judge concerned. The learned Principal District Judge also attributed to the applicant the intention to protract the trial by making the application under Section 24 of CPC and finally the learned Principal District Judge has expressed the gratitude to the High Court for having posted the judges with impeccable integrity and unblemished character in the District of Bharuch. The learned Principal District Judge was of the view that under the loco parental jurisdiction, he was obliged to protect the judicial Page 7 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT officer, and in support thereof, the learned Principal District Judge has relied upon K.P. Tiwari v. State of M.P. [1994 Supp (1) SCC 540] where the Apex Court has pointed out the charged atmosphere under which the trial judges are functioning.

12. It can be noticed from the impugned judgment that the learned Principal District Judge has focused principally on the merits of the statements and pleadings constituting bias rather than focusing the legal proposition as to bias. It is therefore required to be examined whether the learned Judge was within its jurisdiction to draw inferences he did while passing the impugned order. Before that it will be apt at this stage to understand the concept/doctrine of bias. The doctrine of bias can be categorised broadly in two categories:

(1) motivated favouritism sans justice:- In such a case the malafides or a misconduct would actuate the bias. In such cases the obvious target would be the person or the officer concerned.

(2) the apprehension or certain perception of the circumstance or mental state may obsess the mind of a person to vouch a reasonable apprehension that he may not get justice or he is not likely to get justice. In such a case his target would not be a person or officer concerned but the quest for justice would be his consideration. Unfortunately the afore-mentioned thin line of distinction which is forgotten more often than not and the cases pleading bias without targeting the officer Page 8 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT or a person are construed as if bias always mean the malice, motive or malafides. When it comes to protection, in the opinion of this court, the former category of cases do not require protection or the protection in such cases would be unwarranted and illegal, and in later category of cases, the question of protection of the person or the officer would not arise in absence of his being targeted;

the question would be only of justice. Be it not forgotten that bias is antithesis to the principles of natural justice; in such cases quest for justice being consideration behind the attribution of bias to the person or the officer. What is required to be seen is whether the apprehension is reasonable and there is likelihood of a bias. True it is that while considering the reasonableness of the attribution, the courts would always be on their guards in order to separate genuine apprehension from the apprehension by a motive to misuse the process of law where the party pleading bias may not have a genuine case to plead but its motive may be to capitalize on the doctrine of bias. Barring such cases, in the opinion of this court, it would be the duty of the court or the learned District Judge to pass appropriate orders sub-serving the interest of justice; for grant or rejection the application under Section 24 of CPC, the interest of justice would be the sole consideration. In other words, if interest of justice demands the grant of application, the district court shall not hesitate in doing so, and if the interest of justice requires rejection of the application, again obligatory it would be for the district court to do so.

12.1 The learned counsel for the petitioner has relied Page 9 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT upon the following decisions.

Manak Lal vs Prem Chand Singhvi and others [AIR 1957 SC 425] para 4 and 5.

"4. Shri Daphtary contends that the tribunal appointed by the learned Chief Justice of the High Court of Rajasthan to enquire into the alleged misconduct of the appellant was improperly constituted and all proceedings taken before the tribunal, the report made by it and the subsequent order passed by the High Court pursuant to this report are all invalid. This point arises in this way. The tribunal consisted of three members with Shri Changani as it,-, Chairman. It is common ground that Shri Chhangani had filed his vakalat on behalf of Dr. Prem Chand in proceedings under s. 145 of the Code of Criminal Procedure on August 23, 1952, and had in fact argued the case on that date. Shri Daphtary contends that since Shri Chhangani had appeared in the criminal proceedings in question for the opponent he was disqualified from acting as a member of the tribunal and this disqualification introduces a fatal infirmity in the constitution of the tribunal itself There is some force in this argument. It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not Whether in fact a bias has affected the judgment; the test always is and must be whether a, litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it, is often said that justice must not only be done but must also appear to be done. As Viscount Cave L. C. has observed in From United Brewerses Co. v. Bath Justices (1) " this rule has been asserted not only in the case of Courts of Justices and other judicial tribunals but in the case of authorities which, though in no sense to be called Courts, have to act as judges of the rights of others ". In dealing with cases of bias attributed to members constituting tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest, however small it may be in a Page 10 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT subject-matter of the proceedings, would wholly disqualify a member from acting as a judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant, or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. " The principle says Halsbury, "nemo debet esse judex in causaproprta sua precludes a justice, who is interested in the subject matter of a dispute, from acting as a justice therein " (2). In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties.

5. In support of his argument, Shri Daphtary referred us to the decision in Rex v. Sussex Justices, Ex parte McCarthy (3). In this case, the Court was dealing with a case &rising out of a collision between a motor (1) [1926] A.C. 586, 590. (2) Halsbury's Laws of England, Vol- XXI, P- 535, para 952. (3) [1924] 1. K. B. 256, vehicle belonging to the applicant and one belonging to W. At the hearing of the summons the acting clerk to the justices was a member of the firm of solicitors who were acting for W in a claim for damages against the applicant for injuries received in the collision. After the evidence was recorded the justices retired to consider their decision and the acting clerk also retired with them in case they should desire to be advised on any point of law. The applicant was convicted in the case. This conviction was challenged by the applicant on the ground that it was vitiated by the improper conduct of the justices in allowing the acting clerk to be associated with them when they deliberated about the merits of the case. An affidavit was filed on behalf of the justices that they reached their decision without consulting the acting clerk and that the acting clerk had in fact abstained from referring to the case. This affidavit was accepted as true by all the learned judges who heard the case and yet the conviction was quashed. "The question is" observed Lord Hewart C.J. whether the acting clerk was so related to the case in its civil aspect, as to be unfit to act as a clerk to the Page 11 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT justices in the criminal matter" and the learned judge added that "the answer to that question depends not upon what exactly was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference in the course of justice." Lush J. who agreed with Lord Hewart C.J. likewise accepted the affidavit made on behalf of the justices but observed, "that they have placed themselves in an impossible position by allowing the clerk in those circumstances to retire with them into their consultation room." The same principle was enunciated. with equal emphasis in Rex v. Essex Justices, Ex parte Perking (1). This was a dispute between a husband and his wife and it appeared that the wife had consulted the solicitor's clerk in their office about the preparation of a deed of separation from her husband and the lawyer acted in the matter for a time after which she ceased to consult him. No mention of (1) (1927] 2 K.B. 475. the matter was made to the solicitor himself except one very short reference to it in a weekly report from his clerk. Subsequently the solicitor acted as a clerk to the justices who tried the case. He stated in his affidavit that, when acting as a clerk to the justices on the occasion in question, he had no knowledge that his firm had acted for the wife and that he was in no way adverse to the husband. It was urged that the decision of the justices should be set aside as the justices were not properly constituted and it appears also to have been suggested that the decision might, perhaps, have been influenced by a prejudice though indirectly and to a very small extent. Rejecting the argument that the decision of the justices had been influenced even remotely by the impropriety alleged, Avory J. stated that "though the clerk to the justices and the 'justices did not know that his firm had acted for the applicant's wife, the necessary, or at least the reasonable, impression, on the mind of the applicant would be that justice was not done seeing that the solicitor for his wife was acting with the justices and advising' them on the hearing of the summons which she had taken against him."

Satish Jaggi vs State Of Chhattisgarh & Ors [(2007) 3 SCC 62] para 3, 5 and 6.

"3. Learned counsel for the appellant submitted that ultimately administration of justice rests on many principles and one of the fundamental principles is that justice should Page 12 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT not only be done but it should be seen to be done. The present case is not one where a mere allegation is made. There is no dispute that the brother of the present Sessions Judge is a sitting MLA belonging to a particular party of which respondent no.3's father was earlier the leader and the Chief Minister.

5. The law with regard to transfer of cases is well settled. This Court in the matter of Gurcharan Dass Chadha v. State of Rajasthan (AIR 1966 SC 1418) held that a case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. This Court said that a petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. This Court further held that it is one of the principles of the administration of justice that justice should not be done but it should be seen to be done. The court has further to see whether the apprehension is reasonable or not. This Court also said that to judge the reasonableness of the apprehension, the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained, but must appear to the court to be a reasonable apprehension.

6. It was further held by this Court in Maneka Sanjay Gandhi v. Rani Jethmalani that assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or availability of legal services or any like grievance. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. This Court, in the facts and circumstances of the case, said that the grounds for the transfer have to be tested on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. It further said that even so, the process of justice should not harass the parties and from that angle the court may Page 13 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT weigh the circumstances."

Gurcharan Dass Chadha vs. State of Rajasthan [(1966) 2 SCR 678 : AIR 1966 SC 1418] para 13.

"13. With regard to the Home Minister the petitioner has given five instances in which he apparently crossed the minister's path and gave him room for annoyance. In regard to the two Police Officers he has averred that the Deputy Inspector General of Police, Ajmer Range (Hanuman Prasad Sharma) and he had some differences on three occasions. He has also given similar instances of hostility towards him entertained by Sultan Singh, Deputy Inspector General of Police. On the basis of these he says that he entertains an apprehension that he will not receive justice in the State of Rajasthan. The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not office. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the State of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension."

Kulwinder Kaur Alias Kulwinder Gurucharan Singh vs. Kandi Friends Education Trust & Ors. [(2008) 3 SCC 659] para 23 and 25.

"23. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a Page 14 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT 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 proceeding. 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.

25. Similarly in Subramaniam Swamy v. Ramakrishna Hegde, (1990) 1 SCC 4, dealing with power of this Court to transfer a case under Section 25 of the Code, A.M. Ahmadi, J. (as His Lordship then was) stated;

Under the old section the State Government was empowered to transfer a suit, appeal or other proceeding pending in the High Court of that State to any other High Court on receipt of a report from the Judge trying or hearing the suit that there existed reasonable grounds for such transfer provided the State Government of the State in which the other High Court had its principal seat consented to the transfer. The present Section 25 confers the power of transfer on the Supreme Court and is of wide amplitude. Under the present provision the Supreme Court is empowered at any stage to transfer any suit, appeal or other proceeding from a High Court or other Civil Court in one State to a High Court or other Civil Court of another State if it is satisfied that such an order is expedient for the ends of justice. The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one court has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the Court and the Page 15 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT defendant cannot demand that the suit be tried in any particular court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. The Parliament has therefore, invested this Court with the discretion to transfer the case from one Court to another if that is considered expedient to meet the ends of justice. Words of wide amplitude- for the ends of justice-have been advisedly used to leave the matter to the discretion of the apex court as it is not possible to conceive of all situations requiring or justifying the exercise of power. But 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, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner's plea for the transfer of the case must be tested on this touchstone.

(emphasis supplied)"

Julie Jayesh Shah vs. Jayesh Trilok Kumar Shah [2013(1) Mh.L.J.] 719] para 10.

"10. If an application is made seeking transfer of a case from one Court to another under section 24 of the Civil Procedure Code, the said application can be entertained and allowed as held by the High Court of Patna in Lalita Rajya Lakshmi v. State of Bihar, AIR 1957 Pat 198 on the following grounds:

"(1) When superior Court is satisfied that proceedings in one Court constitute an abuse of process of Courts;

(2) 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 conduct of very party applying for transfer;

(3) where there is any reasonable ground for supposing that a prejudice against a party's pleader Page 16 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT has in any manner or measure affected Judicial attitude of Court towards Petitioner, or his case; and (4) if a party feels that he is not likely to have a fair trial before a particular Court."

The Patna High Court, in the said case, also held that this apprehension must be such that a reasonable man might reasonably be expected to have."

State of West Bengal, Represented by Fisheries Development Corporation vs. Bansilal Leisure Parks Limited [(2014) High Court Cases (Cal) 626] para 4.

"4. I have considered the respective contentions of the parties and the materials on record. The suit was for declaration and injunction filed by the opposite party against the petitioners. The opposite party applied for temporary injunction which was granted by the Trial Court on May 17, 2013. Being aggrieved, the petitioners preferred an appeal. In course of the hearing of the appeal the opposite party sought transfer of the appeal by an application under Section 24 of the Code of Civil Procedure, 1908 being C.O. 1961 of 2013. The opposite party narrated incidents in course of hearing of the appeal alleged to have taken place between the learned District Judge and the District Magistrate at Barasat which according to the opposite party gave rise to justifiable apprehensions as to the impartiality of the justice delivery system at Barasat. The learned Judge considering such apprehensions expressed on behalf of the opposite party proceeded to transfer the appeal on the principle that, Justice should not only be done but it should also be seen to be done. That principle was canvassed on behalf of the opposite party at the hearing as would appear from the judgment and order dated July 1, 2013 passed in C.O. 1961 of 2013. The relevant portions of the judgment and order dated July 1, 2013 read as follows: -

"..............The petitioner is the plaintiff in a suit for declaration and injunction. The property involved in the dispute is popularly known as Nalban Boating Complex. It is not necessary for this Court to go into the merit of this suit at this stage. However, after filing of the suit the petitioner filed Page 17 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT an application for injunction and the said application for injunction was contested by the defendants in the suit and ultimately the learned Trial Court allowed the said application for temporary injunction and the defendants were directed not to disturb the petitioner's occupation and lawful actions over the suit property till the disposal of the suit.

Being aggrieved by such order of the learned Trial Court, the respondent nos. 2 and 3 filed Misc. Appeal No. 107 of 2013 before the learned Judge, North24-Parganas at Barasat. It appears that the appeal was filed on 22nd May, 2013. On the same day, i.e., on 22nd May, 2013 the petitioner moved an application for adjournment of hearing of the stay application and/or injunction application which was filed by the respondent nos. 2 and 3. It further appears that the petitioner had moved such application as because the petitioner was not furnished with the copies of the documents, which were referred to in the application for stay and/or injunction. There were two applications, in fact, which were filed by the petitioner on 22nd May, 2013. The learned District Judge, North 24-Parganas at Barasat fixed the hearing of the stay application and/or the injunction application on 28th May, 2013 but no direction was given with regard to the two applications which were filed by the petitioner. It also appears from the allegations made in a subsequent application under Section151C.P.C. filed by the petitioner before the learned District Judge, North 24- Parganas at Barasat that certain incidents took place on 2.5.2013. It has been stated by the petitioner in the said application under Section 151 C.P.C. which appears at pages 165 to 170 of the present application that the District Magistrate of the District concerned was present in Court on 22.05.2013. The petitioner has stated in the aforesaid application that the learned District Judge while sitting in Court had requested the District Magistrate, North 24- Parganas to go to the former's chamber but in spite of repeated requests the District Magistrate, North 24- Parganas continued to remain present in Court. It also appears from paragraph 8 of the said application that the District Magistrate, North 24-Parganas started making submissions before the learned Court concerned whereupon the learned Court requested the District Magistrate, North 24-Parganas to be seated in the Chamber of the learned District Judge. The petitioner has raised a grievance that the District Magistrate, North 24- Page 18 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020

C/CRA/115/2020 JUDGMENT Parganas/Collector is a party to the proceedings and the learned Court should not entertain such matter in which the party to the proceedings is personally known to the said learned Court. In paragraph 9 of the said application the petitioner has stated that after completion of submissions made by both the parties, the said District Magistrate, North 24-Parganas at the instance of the learned District Judge went to the latter's chamber and the petitioner has felt that such act was not desirable. The petitioner has stated in the said paragraph of the said application that the learned District Judge, North 24- Parganas, should not have entertained the District Magistrate/Collector in such manner in the chamber of the said learned District Judge when the said District Magistrate/Collector is directly or indirectly involved in the matter in dispute and such treatments towards the District Magistrate/Collector have cast a doubt in the mind of the petitioner as to whether the petitioner would get at all justice from the court of the said learned District Judge. The said application under Section 151 C.P.C. was filed on 24.05.2013 with a prayer for adjournment of hearing of the application and grant of time to enable the petitioner to move the High Court. It appears that the Assistant Secretary, Fisheries Department, who described as one of the appellants, has filed a written objection against the said application under Section 151 C.P.C. wherein the deponent of the said affidavit has practically described all the allegations made by the petitioner as false one. The relevant paragraphs in the said affidavit have been verified by the deponent of the said affidavit as true to his knowledge. It appears from one of the Annexures to the said supplementary affidavit that the learned District Judge took up the matter on 28.05.2013 wherefrom it appears that the District Magistrate, North 24- Parganas was indeed present in Court on 22.05.2013 and the learned District Judge concerned had requested him to take his seat in the chamber of the learned District Judge but it also appears from the order dated 28.05.2013 that the learned District Judge had thought it to be a matter of protocol. However, in the said order dated 28.05.2013 the learned District Judge has made certain observations against the petitioner as the learned District Judge has observed that the petitioner had mala fide intention and the aim and object of the petitioner should be treated as unscrupulous trick and strategy and the petitioner has done such act with malfeasant attitude etc. etc. Page 19 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT After making such observations against the petitioner, the learned District Judge transferred the Misc. Appeal to the Court of the learned 3rd Additional District Judge at Barasat. It appears that on the very same day i.e., on 28.05.2013, the matter was placed before the learned 3rd Additional District Judge, Barasat and the transferee court fixed the matter on the next day i.e., on 29.05.2013. It further appears from the copy of the order dated 29.05.2013 that on the same day the learned 3rd Additional District Judge, Barasat with the consent of the parties took up both the earlier applications filed by the petitioner but disposed of such applications without passing any order on the basis that the learned Advocate for the appellants had submitted that the appellants are not going to rely upon the documents than what have already been relied upon before the learned Trial Court and the learned 3rd Additional District Judge, Barasat fixed the matter on 10.06.2013. The effect of the order of the learned 3rd Additional District Judge is that the petitioner did not have the opportunity to file any written objection against the application for stay and/or injunction and the petitioner was not furnished with the copies of the documents which were annexed to the application for stay and/or injunction. In spite of such fact, the application had been fixed for hearing on 10.06.2013.

The learned senior Advocate appearing on behalf of the petitioner submits that considering the facts and circumstances of this case, the Misc. Appeal concerned should be transferred to any Court of the learned District Judge outside North 24-Parganas. The said learned senior Advocate further submits that in the facts and circumstances of this case, there is a reasonable apprehension in the mind of the petitioner that the petitioner will not get justice from the learned District Judge, Barasat and also the learned Court to which the matter has been transferred by the learned District Judge, Barasat and, therefore, it should be transferred to a competent court of a learned District Judge outside North 24-Parganas. The said learned senior Advocate also submits that justice should not only be done but it should also be seemed to be done. He has cited a judgment reported in AIR l957 Patna 198 in support of his contention.

The learned Advocate appearing on behalf of the respondents submits that even if it is assumed that the petitioner may have some reasonable apprehension if the Page 20 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT matter had been taken up by the District Judge, North 24- Parganas, the petitioner cannot have any grievance if the Misc. Appeal is heard before the learned 3rd Additional District Judge, Barasat.

This Court is of the view that the learned senior Advocate for the petitioner has some substance while he contends that the matter has been transferred by the learned District Judge to the Court of the learned 3rd Additional District Judge after the learned District Judge had made those observations against the petitioner and such observations are now before the learned 3rd Additional District Judge of the same district. It is needless to say that the learned 3rd Additional District Judge is within the Judgeship of the learned District Judge, North 24-Parganas. As far as proceedings before the learned 3rd Additional District Judge is concerned, this Court is of the view that the learned 3rd Additional District Judge for ends of justice should have allowed the petitioner to have the copies of the documents which were made annexures to the application for stay and/or injunction and the petitioner should have been given an opportunity to file written objection against such application for stay and/or injunction.

Be that as it may, this is not in question as to whether any of the aforesaid learned Courts below i.e., the learned District Judge, Barasat and the learned 3rd Additional District Judge, Barasat does actually have any bias against the petitioner; the question is whether the petitioner, in the facts and circumstances of this case, has a reasonable apprehension in his mind and the further question is whether justice would seem to have been done in the present case if the matter is tried before the said learned District Judge and/or the learned 3rd Additional District Judge.

Considering the facts and circumstances of this case, this Court is of the view that keeping in mind the principle that justice should not only be done but it should also seemed to have been done and also the principle that if a party has a reasonable apprehension in his mind that he will not get justice from any particular court the matter should be transferred from that Court to any others competent court......"

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C/CRA/115/2020 JUDGMENT P.D. Dinakaran (1) vs. Judges Inquiry Committee and Ors. [(2011) 8 SCC 380] para 30, 41, 57 and 62.

"30. In the backdrop of the relevant constitutional and statutory provisions, we shall now consider whether participation of respondent No.3 in the seminar organised by the Bar Association of India where he made speech opposing the petitioner's elevation to this Court and also drafted a resolution to that effect can lead to an inference that he was biased against the petitioner and he ought not to have been appointed as a member of the Committee in terms of Section 3(2)(c) of the Act.

41. In this case, we are concerned with the application of first of the two principles of natural justice recognized by the traditional English Law, i.e., Nemo debet esse judex in propria causa. This principle consists of the rule against bias or interest and is based on three maxims: (i) No man shall be a judge in his own cause; (ii) Justice should not only be done, but manifestly and undoubtedly be seen to be done; and (iii) Judges, like Caesar's wife should be above suspicion. The first requirement of natural justice is that the Judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to the parties to the controversy. He cannot act as Judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. He must be in a position to act judicially and to decide the matter objectively. A Judge must be of sterner stuff. His mental equipoise must always remain firm and undetected. He should not allow his personal prejudice to go into the decision-making. The object is not merely that the scales be held even; it is also that they may not appear to be inclined. If the Judge is subject to bias in favour of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as a Judge, and the proceedings will be vitiated. This rule applies to the judicial and administrative authorities required to act judicially or quasi-judicially.

57. It is, thus, evident that the English Courts have applied different tests for deciding whether non-pecuniary bias would vitiate judicial or quasi judicial decision. Many judges have laid down and applied the `real likelihood' formula, holding that the test for disqualification is whether the facts, as assessed by the court, give rise to a real Page 22 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT likelihood of bias. Other judges have employed a `reasonable suspicion' test, emphasizing that justice must be seen to be done, and that no person should adjudicate in any way if it might reasonably be thought that he ought not to act because of some personal interest.

62. In India, the Courts have, by and large, applied the `real likelihood test' for deciding whether a particular decision of the judicial or quasi judicial body is vitiated due to bias. In Manak Lal v. Dr. Prem Chand Singhvi (supra)(AIR p.429, para 4), it was observed:

"....every member of a tribunal that sits to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and the essence of judicial decisions and judicial administration is that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done."

12.2 Learned counsel for the respondents has relied upon the following decisions:

Rajkot Cancer Society Vs. Municipal Corporation of Rajkot [1988 AIR (Guj) 63] para 4.

"4. It must be stated that neither of the possible grounds urged by Mr. Tanna is convincing. There is absolutely no reason whatsoever for transferring the case from one Court to another. It must be borne in mind that transfer of a case from one Court to another is a pretty serious matter because it casts indirectly doubt on the integrity or competence of the Judge from whom the matter is transferred. This should not be done without a proper and sufficient cause. If there are good and sufficient reasons for transferring a case from one Court to another, they must be clearly set out. Mere presumptions or possible apprehension could not and should not be the basis of transferring a case from one Court to another. Only in very special circumstances, it may become necessary to transfer a case from one Court to Page 23 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT another. Such a power of transfer of a case from one Court to another has to exercised with due care and caution bearing in mind that there should be no unnecessary, improper or unjustifiable stigma or slur on the Court from which the case is transferred Hence, the submission of Mr. Raval deserves to be upheld. The order of the learned Assistant Judge with regard to transferring the case from the Court of 2nd Joint Civil Judge (J.D.) Rajkot, to the Court of 1st Joint Civil Judge (J.D) Rajkot, is set aside. The matter will be heard by the 2nd Joint Civil Judge (J.D.) Rajkot, before whom the matter was pending before transfer. Rule made absolute. In the circumstances of the case there shall be no order as to costs."

Sri Jayendra Saraswathy Swamigal (II), T.N. Vs. State of T.N. and Others [(2005) 8 SCC 771] para

22.

"22. Learned counsel for the petitioner in support of his submission has placed reliance on the following observations made by this Court in Gurcharan Dass Chadha vs. State of Rajasthan AIR 1966 SC 1418.

"A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained, but must appear to the Court to be a reasonable apprehension."

Imtiazkhan Saeedkhan Pathan Vs. State of Gujarat [2010(4) GLR 3512] para 5, 9 and 16.

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C/CRA/115/2020 JUDGMENT "5. The grievance on the part of the petitioners is that certain behaviour and conduct of the judicial officer is such that the petitioners feel that the learned Sessions Judge is having bias against the victim and the witnesses and it is further case of the petitioners that such has transpired during the course of conducting the trial, therefore, they have the apprehension that they will not get justice, hence the prayer for transfer of the sessions cases to another judicial officer who may be in a position to conduct the sessions cases.

9. All the aforesaid grounds, as such, can be broadly classified under two heads; one is for exercise of judicial power and the other is the behaviour and conduct of the learned Sessions Judge while conducting the trial. The third aspect which may be required to be considered is as to whether such could be termed as bias, or can it be said that the apprehension, in the mind of the petitioners is reasonable or just an apprehension having no reasonable basis applying the test of prudence at par with the other litigant. Incidentally, the aspect may also be required to be considered as to whether lenient exercise of the power in a matter of transfer accepting the allegation of bias against the presiding officer of the Court would result into tinkering with the impartiality of a judge and/or would result into having any demoralising effect upon a judge who is otherwise required to discharge the duty with all strength of power in order to render justice, may it be against either party, to which he would not be concerned.

16. The exercise of judicial power by any judge or the presiding officer of the Court if considered as bias or a basis of bias, it would not be in the larger interest of system of administration of justice. No judge or the presiding officer would be in a position to discharge his duty with all strength or the power vested to him if his decision in either way is to be treated as a valid base for inferring bias on the part of the learned judge. At this stage, we may refer to the decision of this Court in the case of Gautam Devjibhai Rathod Vs. State of Gujarat reported at 2005(0) GLHEL-HC 214219 (decided by one of us on the Bench, Jayant Patel, J.), wherein the question arose as to whether the exercise of the judicial power by the learned Judge for issuance of non-bailable warrant against the District Superintendent of Police and other witnesses could be termed as a valid ground for Page 25 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT transfer of the case or not? This Court at para 3 observed thus -

"3. Further, merely because the coercive process is issued against some of the witnesses is hardly any ground for justifying the transfer of the case from one Sessions Court to another Sessions Court. It needs to be recorded that the Court of law with a view to enforce the presence of any witness may exercise the power. It is also true that in normal circumstances, the Court may first issue summons. Thereafter if the summons is not honoured after service, the Court may issue bailable warrant and if the same is also not respected the Court may also issue non-bailable warrant. But all such aspects are procedural aspects and the learned Judge conducting the trial has to exercise the discretion, keeping in view the sound principles of judicial discipline. Merely because there is error in exercising judicial discretion of issuance of process against certain witnesses, the same cannot be a sufficient ground for transferring the case to another Court, more particularly when as observed earlier, no comments/remarks whatsoever were called for by the learned District and Sessions Judge before exercise of the power. Under the circumstances, the order passed by the District and Sessions Judge for transfer of the case cannot be maintained in the eye of law."

(Emphasis supplied) We may also refer to another decision of this Court (Single Judge) (Decided by one of us on the Bench, Jayant Patel, J.) in the case of Krishnalal Ratanji Sorathia Vs. State of Gujarat in Criminal Revision Application No.118/03 and allied matters decided on 08.08.2003, more particularly the observations made at paras 5 and 8 which reads as under:

"5. Having considered the aforesaid submissions made on behalf of petitioner, it is required to be taken note that there can not be any dispute to the principle that whenever any litigant finds a reasonable apprehension that there are chances of any bias decision from the presiding officer of the court, it becomes a good ground for transferring the matter from the presiding officer to any other court or any other presiding officer, but at the same time, it is also required to be taken note of that the morale of a judge or presiding officer can not be put down or lowered down by baseless Page 26 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT apprehension. Therefore, the crucial aspect would be as to whether there any reasonable apprehension or is the material sufficient for alleging bias against the presiding officer who adjudicates the matter.

8. When any order is passed by any presiding officer of a competent court while discharging his judicial functions, no litigant can be heard to say that the matter should be transferred merely because the learned judge has rejected the application. If such contentions are entertained and accepted no presiding officer will be able to discharge his duties and administer the law without any fear. Liking or disliking by the litigant while discharging duties as a judge or presiding officer is not to be considered and what is required to be considered is whether the presiding officer or judge has discharged his functions as a judge/presiding officer in accordance with law and in the interest of justice. Even in the revisional jurisdiction when this court found it prima facie not to interfere with the orders passed by the learned judge and if the petitioner himself has also not chosen to challenge the order passed by the learned judge in my view as such can not be said to be a valid ground for making out a case of bias at all and if such is the basis for the petitioner to apprehend that he will not get justice and injustice will be caused, then in that case it will have to be observed that such apprehension is not genuine but is thoroughly misconceived.

(Emphasis supplied)"

Vikas Kumar Roorkewal Vs. State of Uttarakhand and others [(2011) 2 SCC 178] para 23:

"23. It is true that there must be reasonable apprehension on the part of the party to a case that justice may not be done and mere allegation that there is apprehension that justice will not be done cannot be the basis for transfer. However, there is no manner of doubt that the reasonable apprehension that there would be failure of justice and acquittal of the accused only because the witnesses are threatened is made out by the petitioner."

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C/CRA/115/2020 JUDGMENT State of Punjab vs Davinder Pal Singh Bhullar reported in (2011) 14 SCC 770 para 10, 11, 12, 13 and

24. "10. 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.

11. In respect of judicial bias, the statement made by Frank J. of the United States is worth quoting:-

"If, however, `bias' and `partiality' be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions ....... Much harm is done by the myth that, merely by....... taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine." [In re: Linahan, 138 F. 2nd 650 (1943)] (See also: State of West Bengal & Ors. v.

Shivananda Pathak & Ors., AIR 1998 SC 2050).

12. To recall the words of Mr. Justice Frankfurter in Public Utilities Commission of the District of Columbia v. Franklin S. Pollak, 343 US 451 (1952) 466: The Judicial process demands that a judge moves within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that, on the whole, judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self- discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted.

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C/CRA/115/2020 JUDGMENT

13. In Bhajan Lal, Chief Minister, Haryana v. M/s. Jindal Strips Ltd. & Ors., (1994) 6 SCC 19, this 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 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. The Court held as under:-

"Bias is the second limb of natural justice. Prima facie no one should be a judge in what is to be regarded as `sua causa', whether or not he is named as a party. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject-matter, from a close relationship or from a tenuous one."

In Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167], this Court stated: (SCC p. 169 para 2).

"2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case.

(emphasis supplied)

13. The principle deducible from the case law need not require elaboration; suffice it to emphasise that the real test to be applied in cases where the officer or the person is not on target is that the apprehension should Page 29 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT be reasonable or real as distinguished from unreasonable or artificial; a prudent man should be able to affirm or dispel the apprehension, the fact that the officer or a person had no ill-will, ill-intention or motive or that he did not know the existence of the facts apprehended and made the ground for entertaining the bias would not be relevant. The consideration for exercise of powers under Section 24 of CPC would be whether the justice would be done by retaining the matter with the court concerned or by transferring it on the principle that justice should not only be done but should be seen to be done. Mere bald allegation lacking bonafides or reasonableness would not lead to inference of bias. It would not be necessary for a person entertaining the apprehension of bias to demonstrate that the justice will inevitably fail. The conscience of a person entertaining the apprehension of bias must be satisfied that he is put to a fair trial.

14. The observations in para 4 of Rajkot Cancer Society (supra) were in the context of facts narrated in para 2 and 3; in that case for no reason the case was transferred from one court to another presumably for expeditious hearing. Such a transfer was disapproved by making observations in para 4 (supra). Such fact situation is not available on record and therefore the ratio cannot be applied to the facts of the present case.

15. However the proposition that abrupt transfer of the case without justification would cast indirect doubt on the integrity or confidence of a judge from whom the matter Page 30 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT is transferred cannot be disputed. There also cannot be a dispute on the proposition laid in State of Punjab v. Davinder Pal Singh Bhullar (supra) that acting on the unsubstantiated unreasonable allegation would be disastrous to the judicial system as a whole. There also cannot be any dispute that compelling imperiling circumstances, attendant environment is indispensable for exercise of powers under Section 24 of CPC (Maneka Gandhi v. Rani Jethmalani (supra).

16. Applying the above principles to the facts of the case and to the approach by the learned Principal District Judge, it clearly appears that instead of adhering to the above principles and inquiring into the fact as to whether apprehension raised by the complainant was reasonable, the learned Judge misdirected himself to an inquiry with an attempt adjudicate upon bias.

17. Having regard to the legal position discussed above, the learned Principal District Judge was required to consider the pleadings as a whole but certainly not the isolated statements. The petitioner had given three sequences whereupon her apprehension was based:

(1) She was contacted by some unknown person as indicated above.

(2) That on the date (supra) the matter was unnecessarily adjourned.

(3) That there was unwarranted meeting of an advocate of the claimants with the learned Judge concerned.

Amongst the three circumstances the last one was the Page 31 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT serious one though not casting aspersion on the learned Judge but serious in the sense that it qualified as a reasonable apprehension that the justice may not be done. Pertinently on the former two circumstances, no action was taken by the petitioner as and when they occurred. The action was taken only when the third incident occurred i.e. meeting (supra). Thus the former two circumstance were not treated as serious as the third one by the petitioner herself, and may be rightly so, because, in the first circumstance, the learned Judge was not involved at all, and the second circumstance, mere adjournment on the ground specified was accepted. It is only after the third circumstance that the applicant reckoned all the three circumstances for making out a case for apprehension. Can this be said to be unreasonable approach by her. In the opinion of this court, the approach was reasonable.

18. It appears that the learned Principal District Judge unfortunately messed up two different issues for criticising the conduct of the applicant without noticing that the application to the vigilance department of the High Court followed two months of the incident and whether or not there was a substance in what the petitioner was asking in the said application is altogether a different aspect but it cannot be disputed that a party apprehending the untoward on the third circumstance was justified atleast making an application and moving the vigilance department of the parent court. This fact was adversely taken by the learned Principal District Judge to find fault with the conduct of the applicant, unnecessary. In the opinion of this court Page 32 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT the only jurisdiction vested in the learned Principal District Judge under Section 24 of CPC was to apply mind to the three circumstances particularly the last one to find whether the apprehension seeking transfer of the case was reasonable or not. All other considerations were irrelevant.

19. Although in the affidavit the respondents disputed the assertion as to the three circumstances (supra).; the fact remains that the presence of the authorised signatory of the company in the court; the presence of the lawyer for the claimants and presence of the learned Judge concerned in the chamber and his adorning the dais late by some time and deputing the peon for summoning the advocate is not disputed. However it is stated that Mrs. Parul Desai; the complainant was also summoned by the learned Judge on the ground that the court will adorn to dais little late due to non-availability of staff on that day, and the advocates desiring adjournment may make such request to the learned Juydge in Chamber. Pertinently, it is an admitted position that the learned Judge did adorn the dais late. In the opinion of this court, since he was to adorn the dais; he ought to have heard the adjournments on dais more particularly in the present case which involved a huge stake as indicated above, as the tendency to raise doubts in the cases involving heavy stakes, cannot be ruled out. In cases involving huge stake, if the allegation is that indoor meeting was held in privacy; in the opinion of this court, no more evidence would be necessary for sustaining the apprehension that injustice is likely to be Page 33 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT done.

20. The reasonableness of the apprehension can be reckoned from the conduct of the petitioner from the inception. At no point of time, except during the course of the disputed incident, the petitioner was attributed with the delay which is now made a ground for defending the prayer in the application under Section 24 of CPC. The daily proceedings recorded does not reflect any such objection or reservations by the opponents. The arguments in fact concededly were concluded before the previous judge who was transferred and thus could not deliver the judgment; this fact itself would show that the applicant had no intention to delay the case. Even thereafter on several occasions without any objection or reservation from the opponent the case was adjourned from time to time and was pending for argument from the applicant since quite few occasions. The question is what was the basis for the learned Principal District Judge to attribute the motive of causing delay in the matter, to the complainant. It is rightly argued by learned counsel Mr. Shah that the delay would be a curse for the petitioner itself in the event of grant of compensation as by delay, the interest would mount to the huge amount. This aspect the learned Principal District Judge failed to appreciate; rather could not see through and there is nothing on record to attribute ill-motive or ill-intention to petitioner, for transfer of the case. As noted from the judicial precedents the petitioner was not even required to establish that his apprehension would necessarily come Page 34 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT true; what she was required to show was that the apprehension is reasonable, and in the opinion of this court, having regard to the totality of the circumstances, the apprehension cannot be said to be unreasonable. The case seems to be totally misconceived by the learned Principal District Judge on surmises and conjectures. The pleadings do not cast any motive or aspersions on the conduct or character of the learned Judge concerned, and therefore, it was unnecessary for the learned Principal District Judge to presume that the target was the learned Judge while failing to see that the purpose was to get justice without casting aspersion on the learned Judge concerned. May be on the subsequent occasion the frustrated applicant moved the High Court with a vigilance application; that could not be a ground to show that the apprehension was not reasonable; it could not be a ground to criticise the conduct of the applicant as that was wholly irrelevant.

21. This court does not find any discussion on the principles of law discussed above in the entire judgment. May be that the learned Judge concerned has blotless career and if it is so this case would be incapable of casting any aspersion on the conduct of the learned Judge which of course is not under the scrutiny in the present case; in the light of the settled law the transfer of the case can still be effected not for the reason that the conduct or character of the learned Judge is under scrutiny but on the ground that the litigant has reasonable apprehension of injustice. When there was no threat to the character or conduct of the learned Page 35 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT Judge concerned; there was no question of learned Principal District Judge acting as loco parentis seeking to exercise the jurisdiction as a guardian of the learned Judge.

21. For the foregoing reasons, this revision application which is finally heard by consent of the learned advocates for the parties at the admission stage deserves to be allowed. The impugned order is quashed and set aside.

It is clarified that this court has not at all dealt with the case lodged against the learned Judge concerned by the applicant with the vigilance department, this court is concerned only with the occurrences prior to the lodgment of the said case. Learned counsel Mr. Savjani is right in contending that the facts of this case would not warrant the probing the conduct of the learned Judge concerned as, the petitioner has contended that the petitioner has not intended to question the character and conduct of the learned Judge. Although learned counsel Mr. Savjani submitted that the case may be remanded in view of the findings rendered by this court, in the opinion of this court, by transfer what all will happen is that some other learned Judge would hear the case. In the opinion of this court it will be in the interest of the opponents as also the petitioner that the case is expeditiously decided as already directed by this court in other proceedings since if the opponents are entitled to succeed, they must get the compensation expeditiously rather than investing their time in seeking adjudication of other subsidiary issues. Therefore instead of remanding the case it is desirable that the learned Principal District Judge should nominate any Page 36 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020 C/CRA/115/2020 JUDGMENT other Judge of the competent jurisdiction for deciding the main case as also other subsidiary applications pending with the main case on merits, preferably within the period of four weeks from the receipt of this order. Accordingly directed.

Considering the fact that stake involved in the main case is huge and what all will happen while transferring the case is that it would be heard by some other learned Judge which should not be concern of the opponent and also considering the interest of the opponent that if at all they are entitled to succeed they should get the compensation expeditiously, the oral application by learned counsel Mr. Balram Jain to put in abeyance this order is rejected.

(G.R.UDHWANI, J) syed/ Page 37 of 37 Downloaded on : Tue Sep 22 23:17:05 IST 2020

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Gujarat High Court