Calcutta High Court (Appellete Side)
Kanakkanti @ Kanak Karmakar vs Sri Bholanath Roy & Ors on 12 August, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
C.O. 2260 of 2016
Kanakkanti @ Kanak Karmakar
-vs-
Sri Bholanath Roy & Ors.
For the petitioner : Mr. Debjit Mukherjee
Mrs. Susmita Chatterjee.
For the respondent Nos. 1 to 4 : Mr. Partha Sarathi Bhattacharyya,
Sr. Advocate.
Mr. Srikrishna Samanta, Mr. Raju Bhattacharya.
For the respondent Nos. 5 to 9 : Mr. Srijib Chakraborty Mr. Dipanwita Ganguly.
Heard on: : 09-08-2016 Judgment on: : 12-08-2016
Indrajit Chatterjee, J. :- This is an application under section 24 of the Code of Civil Procedure in which the petitioner who is the defendant no.6 before the Trial Court being the Civil Judge, Junior Division, 2nd Court, Arambagh, District Hooghly in Title Suit no.93 of 2014 has prayed for an order of transfer from Arambagh to any other Court within the district of Hooghly that is at Chandannagore or at Srirampur. The ground of filing for such application as I get from the application itself is that the plaintiff opposite party no.1 is one senior advocate of Arambag Court and as such this petitioner is not getting any legal assistance from any advocate at Arambag. The learned counsel Mr. Debjit Mukherjee, has referred to an unreported decision of Punjab and Haryana High Court (Nidhi Sharma-Vs-A.N. Bhardwaj) as decided on October 11, 2000 wherein in paragraph 11 the learned Single Judge of the High Court observed that Mr. A. N. Bhardwaj, being one senior advocate practicing at Ludhiana, the case of the person be transferred from Ludhiana Court to some other Court in Chandigarh.
On behalf of the opposite party nos. 5 to 9 Mr. Srijib Chakraborty, the learned advocate submitted that his clients are also facing the same problem on the same ground.
Mr. Mukherjee has filed the searching report dated 30.07.2016 to satisfy this Court that the advocate who filed the case on behalf of his client retired with effect from 25.02. 2016 and that the learned advocate representing the defendant nos. 1 to 5 also retired on 20.08.2015.
Mr. Mukherjee has also filed another searching slip dated 04.08.2016 to convince this Court that the order of stay as granted by this Court on 22.06.2016 was duly communicated to the Court below. He further contended that even after receipt of the stay order the learned Trial Court was pleased to allow one put up petition which will be apparent from the order dated 28.06.2016.
In counter to all theses, Mr. Partha Sarathi Bhattacharyya, the learned advocate appearing on behalf of the opposite party nos.1 to 4 submitted that the claim of the petitioner that he is not getting any advocate is one misnomer and is mere apprehension. He further submitted that mere apprehension cannot be a ground for transfer of one suit from one Court to another Court. He cited decision of the Apex Court as reported in AIR 1997 S.C. 1036 (Shib Kumari Devendra Ojha-Vs-Ramajor Shitala Prasad Ojha & Ors.) wherein the Apex Court declined to accept the contention that one transfer application is maintainable on the ground of non-availability of one advocate.
Apparently to say that this case cannot match with the facts and circumstances of this case as in that case before the Court of the Apex Court the petitioner aggrieved that he will bear the expenditure of transfer and stay of the petition whenever she attends Court and naturally that influence the Apex Court to arrive such a decision. In that decision, the transfer was asked for from Uttar Pradesh to Gujarat and in the present case before the floor of this Court the transfer has been prayed within the same district.
Mr. Bhattacharya has also cited another decision of a Single Judge of Gujarat High Court, as reported in AIR 1988, Gujarat, 63 (Rajkot Cancer Society-Vs-Municipal Corporation, Gujarat) where the Single Judge held that mere apprehension or assumption is not an actual cause of transfer of a proceeding unless the case before the Court. The apprehension of the petitioner or the opposite party nos.5 to 9 is not unfounded in view of the fact that even though one stay order was granted by this Court. The learned trial court was pleased to put up the record knowing fully well regarding the stay order of the Court not only that the trial court even passed order on 28.06.2016 violating the order of this Court. Thus, the Court is not unmindful of searching slip as filed by Mr. Mukherjee in support of the claim of the petitioner.
Thus, considering the argument put forward by the learned counsels appearing on behalf of the parties this Court is satisfied that the plaintiff/opposite party no.1 is one advocate of Arambag Court with a standing practice of several years. The conduct of the court below that he even allowed one put up petition and passed necessary order on that date knowing fully well that the order of stay was passed goes to show that how much influence the plaintiff has over the said court.
It is true that an order of transfer as contemplated under Section 24 of the Civil Procedure Code is one discretionary order and that discretion must be exercised if there is good and sufficient reason for transferring a case from one court to another. I admit that mere presumption or possible apprehension could not be and should not be the ground of transferring a case from one court to another. It is also true that some special circumstance is necessary to transfer a case from one court to another and the court must take due care and caution in considering the application in favour of the petitioner. It may be stated that justice should not also be done but it should seem to have been done. The Punjab High Court in its decision as reported AIR 1961 Punjab 560 (Jyotsna Raje Vs. Jagpal Singh) held that court dealing with such application must take into consideration the convenience of both parties and not only of one of them.
The plaintiff/opposite party no.1 being a renowned lawyer of the said Sub-divisional court I feel the interest of justice demands that the application under Section 24 is fit to be allowed as because if this petition is allowed the plaintiff will suffer nothing but by this order of transfer the defendants may not clamour that they will not get just and fair trial before the transferee court.
Thus, taking into consideration the overall picture of the case, I feel that in the interest of smooth, fair and speedy trial of the case let the Title suit no.93 of 2014 now pending before the Civil Judge (Junior Division), 2nd Court, Arambag be transferred to the court of Civil Judge (Junior Division), 1st Court, Srirampur, district-Hooghly for disposal. The Civil Judge (Junior Division), 2nd Court, Arambag is directed to place the record before the said transferee court within seven days from the receipt of this order.
The said Civil Judge on receipt of the record must inform the parties regarding the receipt of the record and dispose of the suit as early as possible.
Thus, this application under Section 24 of the Civil Procedure Code is answered in the affirmative and disposed of accordingly. There will be no order as to costs.
Office is directed to communicate this order to both the courts below along with a copy of this order.
The parties will be at liberty to communicate the order to both the courts below by producing server copy of the order.
(Indrajit Chatterjee, J.)