Citation Codes

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citation codes

Case Number

c .r .no .3159 of 197

Advocates

T.K.Chatterjee
Samir Mukherjee
N.K.Manna
J.N.Roy

Judges

Mr. Justice S.K. Bhattacharyya
Mr. Justice A.K. Janah

Acts

section 24 read with section 115 of the code
section 24 of the code

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Smart Summary

Structured Summary of the Opinion — Transfer Application under Section 24 read with Section 115

Factual and Procedural Background

This opinion concerns a rule issued on an application under section 24 read with section 115 of the Code of Civil Procedure seeking transfer of a suit pending before the 11th Court of the Additional District Judge, Alipore, to another court. The petitioner had instituted the suit seeking judicial separation and other reliefs. The petitioner advanced four specific grounds for transfer, summarized in the application: (i) the trial judge allegedly did not record explanations offered by the petitioner in cross-examination and used intemperate language during cross-examination; (ii) translations of vernacular answers into English were alleged to be inaccurate and prejudicial; (iii) material evidence that was not objected to by the defendant was allegedly not recorded; and (iv) a short adjournment requested to examine a witness resident in Darjeeling (consentingly unopposed by the other side) was refused and the judge purportedly threatened to close the petitioner's evidence. The petitioner had previously applied to the district judge under section 24; that application was refused and the present rule sought transfer before the High Court. The High Court considered the application, heard argument from counsel for both sides, examined the record of the earlier application to the district judge, reviewed relevant authority cited by counsel, and ultimately made the rule absolute, directing the district judge to transfer the suit to another learned judge and ordering each party to bear their respective costs. The court refused the petitioner's separate prayer for a trial de novo.

Legal Issues Presented

Whether the cumulative effect of the petitioner's grievances (alleged mis-recording/translation of evidence, omission of explanations and material evidence, refusal of a reasonable adjournment, and alleged use of intemperate language by the trial judge) gives rise to a reasonable apprehension that the petitioner will not obtain a fair trial and therefore justifies transfer of the suit under section 24 read with section 115 of the Code of Civil Procedure.
Whether a litigant who has earlier applied to the district judge under section 24 and been refused may file a fresh application for transfer before the High Court under section 24.
Whether the particulars relied upon by the petitioner (including allegations about what occurred in the trial court) can be considered by the High Court in support of a transfer application.
Whether, if transfer is ordered, the court should direct a trial de novo.

Arguments of the Parties

Petitioner's Arguments (Mr. Roy)

The petitioner claimed a reasonable and bona fide apprehension that he would not get a fair trial before the learned trial judge because the judge had not given due care and attention to the petitioner's case.
Specific grievances supporting that apprehension included: translations of vernacular testimony into English that altered meaning (example: "did not remember" recorded as "did not know"); failure to record explanations offered in cross-examination; omission of material evidence that had not been objected to by the defendant; and the refusal of a short adjournment (consented to by the other side) to secure a witness from Darjeeling together with a direction that the petitioner's evidence would be closed unless the witness was produced at a specified early hour the next day.
Mr. Roy explained why no petition had been filed in the trial court complaining about recording errors: the petitioner did not wish to "fence with the court" and expected the judge to give due consideration so as to avoid prejudice.
Mr. Roy sought transfer to "some other learned judge" without preference for any particular court, and prayed alternatively for a trial de novo if transfer were allowed (the latter prayer was refused by the High Court).

Respondent's Arguments (Mr. Mukherji / Mr. Mukherjee)

The respondent contended the petitioner's grievances were unsubstantiated by materials on the record; specifically, no petition was filed in the trial court pointing out alleged mis-recording, and there was nothing in the record to demonstrate omission of material evidence.
Counsel relied on a report by the learned trial judge to the district judge (submitted on the petitioner's earlier section 24 application) and argued that the explanation given by the trial judge demolished the petitioner's case for transfer.
It was argued that the apprehension claimed by the petitioner, if any, was fanciful or sentimental and therefore insufficient as a ground for transfer.
It was further argued that because the petitioner already moved the district judge under section 24 and was refused, the present application to the High Court under the same section was not maintainable.
Counsel relied on authorities (discussed before the court) to support propositions about the inadmissibility of detailed recounting of trial events and the High Court's approach to omissions in lower court records.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Associate Tubewell Ltd. v. R. B. Gujarmal Modi, A.I.R. 1957 S.C. 742	Disapproval of an advocate setting out in detail in a review application what allegedly happened in prior court proceedings and what judges said; caution against relying on detailed recital of court events in such proceedings.	The court found the cited decision to be different on its facts and therefore not helpful to the respondent's contention in the present case. The examplar passage (disapproving detailed recounting in review applications) was noted but the court treated the facts as distinguishable.
Basiruddin Asraf v. The Bihar Sutai Sunni Majlis & Anr., A.I.R. 1965 S.C. 1206	The Supreme Court ordinarily regards the details of arguments recorded in the High Court judgment as correct and will not re-open an enquiry into what was or was not argued unless an omission is admitted or demonstrably proved; a party should not reargue issues by asserting fresh arguments.	The court held this authority was based on facts different from the present case and thus did not assist the respondent. It concluded the principle did not preclude the High Court from considering the petitioner's present application under the circumstances before it.
Dr. Hardit Singh Jaswant Singh v. Bhagat Singh Jaswant Singh & Ors., A.I.R. 1964 Punjab 277	Even where averments in an application for transfer were excluded from consideration, the language used by a subordinate judge in comments that indicated he was upset by allegations could justify transfer.	The court cited this decision to illustrate that conduct and language of a trial judge, when they manifestly create an apprehension of prejudice, may justify transfer. The case supported the proposition that transfer can be ordered where a judge's remarks indicate he was upset by allegations against him.
Hari Nath Biswas v. Debendra Nath Biswas, 11 C.L.J. 218 (also reported in 5 I.C. 771)	Where a district judge refuses to transfer a case under section 24, the petitioner may make a fresh application for transfer to the High Court.	The court relied on this bench decision to hold that a prior unsuccessful application to the district judge does not preclude the petitioner from moving the High Court afresh under section 24.
Sheo Nandan Lal v. Mangal Chand, A.I.R. 1927 Pat. 383	Same view as to availability of fresh application to a higher court after refusal by district judge under section 24.	The court cited this authority as also supporting the proposition that the petitioner may seek transfer before the High Court despite an earlier refusal by the district judge.

Court's Reasoning and Analysis

The court proceeded by examining each of the petitioner's stated grievances and then considering their cumulative effect. The reasoning unfolded in the following steps, strictly as reflected in the opinion:

Identification of statutory basis and scope: The rule was under section 24 read with section 115 of the Code of Civil Procedure; the court framed the precise inquiry as whether facts and circumstances give rise to a reasonable apprehension in the petitioner's mind that he will not get justice if the suit is tried by the present trial judge.
Evaluation of evidentiary complaints about recording and translation: The court considered specific examples advanced by Mr. Roy (for instance where a witness's statement "did not remember" was recorded as "did not know") and accepted that, in context, such differences could make a substantial difference to the case's outcome. The court noted that objections to such mistakes were raised before the trial judge but were dismissed by him as trifling; the High Court found these concerns could be material.
Assessment of alleged failure to record explanations in cross-examination: The court considered the petitioner's explanation for why no formal petition was filed in the trial court (that he did not want to fence with the court and expected the judge to take points into account). While noting the absence of a contemporaneous petition in the lower court, the High Court stated that absence of such a petition did not necessarily prove the petitioner's allegations false, and it reviewed record passages (e.g., the testimony of P.W.1) that suggested an explanation might have been offered but not recorded.
Consideration of alleged omission of material evidence: The court observed that while depositions are taken in narrative form and not every question and answer is recorded verbatim, there was no material on record enabling the court to identify any specific omitted statement; accordingly, the court left this particular contention out of its consideration for the present rule.
Assessment of the adjournment refusal and courtroom language: The court examined the circumstances of the refused short adjournment (consented to by the other side) to enable production of a Darjeeling-based witness and the trial judge's direction that the petitioner's evidence would be closed unless the witness was produced the next morning; the court observed that an isolated refusal to grant an adjournment is not per se ground for transfer, but that taken together with the other incidents, including an instance where the judge used unbecoming language (as recreated in the petitioner's earlier section 24 application and the district judge's report which the High Court reviewed), these circumstances could contribute to a reasonable apprehension.
Consideration of opposing counsel's submissions and authorities: The court reviewed the respondent's submission that the petitioner's complaints were unsubstantiated and the respondent's reliance on authorities. It analyzed the cited cases and found them distinguishable on the facts or not directly helpful to the respondent's legal position in this context.
Application of the "reasonable apprehension" standard cumulatively: The court emphasized that the relevant question is the cumulative effect of the petitioner's grievances, recalling the principle that justice must not only be done but also be manifestly seen to be done. Applying that standard to the totality of the circumstances as presented, the court concluded that there existed a reasonable apprehension in the petitioner's mind that he would not get justice if the suit continued before the same judge.
On maintainability of a fresh High Court application: The court interpreted section 24 ("the High Court or the district court may, at any stage — transfer any suit") and cited bench and earlier authority to hold that a prior application to the district judge does not preclude a petitioner from moving the High Court afresh for transfer under section 24; therefore the present High Court application was maintainable despite an earlier district judge refusal.
Relief shaped by fairness and practicality: While satisfied that transfer was appropriate in the interests of justice, the court declined the petitioner's request for a trial de novo, observing that ordering a de novo trial at that stage would cause considerable hardship to the parties. Instead the court directed transfer for continued hearing by another learned judge and ordered the parties to bear their respective costs.

Holding and Implications

Core Ruling: The High Court made the rule absolute and directed transfer of the suit from the 11th Court of the Additional District Judge, Alipore, to some other learned judge who can hear the suit expeditiously.

Direct consequences and practical implications as stated in the opinion:

The district judge is directed to transfer the case from the 11th Court of the Additional District Judge to another learned judge able to hear the suit expeditiously.
The petitioner's request for a trial de novo was refused by the High Court on grounds of potential hardship to the parties.
The parties were ordered to bear their respective costs in the rule.
The court directed that the records be sent down forthwith.

The court expressly clarified that its order should not be taken as casting any aspersion on the integrity or impartiality of the learned additional district judge; the transfer was ordered because of the peculiar and special circumstances of the case and the cumulative effect of the petitioner's complaints.

No new legal precedent was declared: The decision applied existing principles governing transfer under section 24 and the concept of reasonable apprehension; it did not purport to lay down a novel rule of law beyond applying established tests to the facts of this case.

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Gorachand Das v. Dipali Das

Janah, J.:-

(1) This rule was issued on an application under section 24 read with section 115 of the code of civil procedure for the transfer of a suit from the 11th court of the additional district judge, alipore, to some other court. The petitioner instituted the suit claiming a decree for judicial separation and also for other reliefs. The grounds on which the transfer of the suit has been asked for are four in number. It is stated that the cumulative effect of all these grounds for transfer has resulted in a reasonable apprehension in the mind of the petitioner that he will not get a fair trial from, and his case will not be considered properly, by the learned judge before whom the suit is pending. The four grounds urged on behalf of the petitioner for transfer of the suit are: i) not only that the learned judge did not record the explanation given by the petitioner in support of his answers in cross - examination but the learned judge used intemperate language against the petitioner during his cross - examination ; ii) some of the answers given by the witnesses in the vernacular have been translated into english in a manner which has resulted in incorrect recording of the evidence and such recording of evidence has caused serious prejudice to the petitioner's case ; iii) evidence considered very material for the petitioner's case and which was not objected to by the other side was not recorded; and iv) a prayer for adjournment made on behalf of the petitioner to examine one of his witnesses who was in darjeeling and which prayer was not opposed by the other side was turned down by the court and the court directed that unless the said witness was brought before the court at the first hour on the next day the petitioner's evidence will be closed and the evidence on behalf of the defendant will be taken.

(2) Mr. Roy, learned advocate who appeared on behalf of the petitioner in the trial court has made it perfectly clear before us at the very outset that he has nothing to complain against the learned judge regarding his fairness, honesty and integrity. He submitted that in the facts and circumstances of the present case the petitioner before us has a reasonable apprehension that he will not get a fair trial before the learned judge in view of the fact, that the learned judge has not bestowed due care and attention which has client's case deserves. His contention is that this apprehension in the mind or the petitioner is reasonable and bona - fide and as such there is sufficient ground for transfer of his suit from the learned trial judge to some other learned judge. He submitted that he has no choice of any particular court but that the suit should be transferred to some other court.

(3) Mr. Mukherji, learned advocate, opposing this rule contended that the grievances made by the petitioner are not substantiated by any materials on record. According to him, in the absence of any petition being filed indicating that the learned judge was not taking down the evidence correctly the petitioner cannot be allowed to make it a ground for transfer. Mr. Mukherji further contended that the explanation given by the learned trial judge to the learned district judge in connection with the petitioner's application for transfer of the suit is sufficient to demolish the petitioner's case which has been made out in this court. He relies on certain statements made by the learned trial judge in his aforesaid report to which we shall have occasion to refer hereinafter. Mr. Mukherji accordingly contended that the apprehension, even if there be any, in the mind of the petitioner in this case is merely fanciful or sentimental and that cannot be a ground for transfer of a suit. Mr. Mukherji further took the objection that the petitioner once having moved the learned district judge for transfer of the suit under section 24 of the code of civil procedure the present application under the same section is not maintainable.

(4) Let us, therefore, examine whether the grievances made by the petitioner in the present application can reasonably give rise to an apprehension in the mind of the petitioner that he will not get a fair trial and that justice will be denied to him if his case is tried by the learned judge from whose court the suit is sought to be transferred. One of the grounds for such apprehension is that the evidence adduced on behalf of the petitioner is not being correctly recorded. For instance, when one witness said that he "did not remember" it was translated as "he did not know". According to mr. Roy who was personally conducting the case before the trial court such mistakes were pointed out to the learned judge but the learned judge summarily dismissed such objection on the ground that those are of a trifling nature and it did not matter whether an exact rendering into english was made or not. In the context in which such a statement was made by the witnesses it would, in our view, make a substantial difference in the ultimate decision of the case. Then again, the petitioner has made a grievance that the explanation offered by him and his witnesses in cross - examination were not recorded by the learned judge upon the view that this had little bearing on the points in issue in the suit. It was pointed out by mr. Mukherji on behalf of the respondent that in the absence of any petition having filed before the trial court there is material on record to substantiate such an allegation. Mr. Roy on behalf of the petitioner who personally appeared before the trial court has explained to us the circumstance under which such a petition was not filed. His explanation is that the petitioner did not want to fence with the court and he was expecting that the points raised on his behalf would be given due consideration by the learned judge so that no prejudice might be caused to him. It is true that no such petition was filed in the present case but that does not necessarily mean that what the petitioner is complaining of in the present rule is not true. From the records it appears that the evidence was taken down at some length but it also appears from the evidence of p. W. 1 who is the elder brother of the petitioner that a statement has gone down in his cross - examination to the effect that "i was present when there was a quarrel between my brother and his wife upto 12 midnight". Mr. Roy contended that such a statement would obviously indicate that the petitioner's elder brother" was present in the bed room where the petitioner and his wife was quarrelling upto 12 midnight. Naturally this would be an impossible statement to believe. Accordingly to mr. Roy this witness wanted to explain his statement that he was present in the house but not in the room where his brother and his wife were quarrelling. But this explanation was not recorded by the learned judge.

(5) The next grievance made by mr. Roy on behalf of the petitioner is that some evidence which was considered very material for the purpose of proving the petitioner's case and which was not objected to on behalf of the defendant was not recorded at all. In so far as this objection is concerned mr. Mukherji contended that the petitioner has failed to mention what was the material evidence which was not recorded. He further submitted that there is nothing in the records of the court below from which such an allegation can be substantiated. It is no doubt true that the records of the court below do not contain any petition filed on behalf of the petitioner to this effect but the deposition in the courts below are taken down in a narrative form and all the questions and answers do not find place in the deposition of the witnesses. Therefore, it is not altogether impossible that some of the statements made by the witnesses have not gone down in the records verbatim. But since there are no materials on record to indicate whether there has been any such omission at all, or if there has been any, what were the statements which were not recorded we might leave out this point from our consideration for the purpose of the present rule.

(6) It was next contended on behalf of the petitioner that at the conclusion of the hearing on the 6th june, 1973 a prayer was made on behalf of the petitioner, with the consent of the other side, for a short adjournment till the 9th of that month to enable the petitioner to examine one dr. Brahmananda panigrahi who treated the petitioner for sometime. It was stated that inspite of his best efforts the petitioner could not serve summons on the said witness as he was staying at that time at darjeeling and he was due to come to calcutta on the 8th which was a sunday. Although this prayer was not objected to on behalf of the defendant the learned judge refused to allow this short adjournment and gave out to the learned advocate for the petitioner that unless the said witness was brought at 10 - 30 a. M. On the next day he will treat the evidence on behalf of the plaintiff as closed and will ask the defendant to adduce evidence on her behalf. Mr. Roy submitted that this was not a reasonable attitude for a court to take in the circumstances of the case and this fact taken along with other facts has given rise to an apprehension in the mind of the petitioner that this case will not receive due consideration from the learned judge before whom the suit is pending. There can be no doubt that mere refusal to grant an adjournment by itself can never be a ground for transfer. But in the present case from what have been said hereinbefore and from what will be noticed hereinafter the possibility of the petitioner's having such an apprehension cannot be ruled out altogether. The other incident which took place in the court below and which was strongly relied upon by mr. Ray is the use of unbecoming language by the learned judge to the petitioner when the latter was trying to offer an explanation to an answer given by him in cross - examination. The exact language has been quoted in the application under section 24 which was moved by the petitioner before the district judge in the 3rd ground taken by him in the said application. We sent for the records of the miscellaneous case arising out of the said application under section 24 and have gone through the report submitted by the learned additional district judge to the district judge. In the order which has been passed by the learned district judge on the said application the said report has also been quoted almost verbatim. On a reading of the said report it appears to us that some incident as alleged by the petitioner took place during the trial of the suit although the learned judge might not have used the exact words alleged to have been used by him. It was contended that such an incident taken along with what happened in course of heating of the suit as noted hereinbefore was sufficient to give rise to an apprehension in the mind of the petitioner and if that be so, it would be a sufficient ground for transfer of the suit mr. Mukherji contended that the application for transfer has been filed by the petitioner for the purpose of harassing his client and he alleged lack of the bona - fides on the part of the petitioner in making the applications for transfer. The records of the case however show the contrary. It shows that most of the adjournments were prayed for by the defendant herself and it cannot be said that the petitioner is responsible for the delay in the hearing of the suit. Moreover it is difficult to see how the petitioner who is not a very well paid employee and who has to pay alimony pendent elite to the opposite party under the orders of the court would be benefited by having the hearing of the suit delayed. About 3 years have already elapsed from the date of filing of the application under section 10 of the hindu marriage act. We, therefore, see no reason to make the petitioner responsible for the suit not having been disposed of for all these years.

(7) Mr. Mukherjee relied upon the decision in associate tubewell ltd. V. R. B. Gujarmal modi, a. I. R. 1957 s. C. 742, and contended that the petitioner should not be permitted to refer to what happened in the trial court and make it a ground in support of this application. The decision cited by mr. Mukherjee is quite different on facts, inasmuch as, that was a case where in a review application certain statements were made and those were relied upon in support of the review application. As would appear from a passage occurring in the said judgment, which is as follows :

"we cannot, however, part from this matter without placing on record our very strong disapproval of the course that the advocate - a very senior counsel of this court - has adopted in making this application. In the review application he has referred in detail as to what, according to him, happened in court on the prior occasion and what each judge said in the course of the argument. The review application sets out at length what the presiding judge said and expressed in the course of the arguments and what his views were and what the other judges of the bench said and expressed and what the view of each was. These statements are far lowed by a confident assertion how and why this application was dismissed."

The other decision on which mr. Mukherjee has relied is reported in a. I. R. 1965 s. C. 1206, basiruddin asraf v. The bihar sutai sunni majlis - a waqf and anr. In that case an application for removal of the appellant from the mutawaliship was made by the appellant's step - brother, as a result of which he was removed from mutawaliship by the statutory authority under the bihar waqfs act 1947. Against that order the appellant made an application to the district judge for setting aside the said order under section 27 (3) of the said act. The learned district judge found against the appellant on all the issues except one. This decision was affirmed by the patna high court. Against this decision of the patna high court the appellant contended before the supreme court that some of the points which were urged on his behalf before the high court had not been noted in the judgment. In that context of the appellant's arguments advanced before the supreme court the supreme court observed as follows :

"this court will ordinarily regard the details of the arguments given in the judgment of the high court as correct and will not enter upon an enquiry as to what was or was not argued there. The high court is a court of record and unless an omission is admitted or is demonstrably proved this court will not consider an allegation that there is an omission. The appellant has had a very fair trial and it is plain that the appellant cannot be allowed to have the whole issue debated again because he has thought out fresh arguments."

It will be seen, therefore, that the observations made by the supreme court in that case were made on the basis of facts which were completely different from the facts of the present case. The two decisions cited by mr. Mukherjee does not, therefore, help him in this case.

(8) In the present case the different points raised by the petitioner may not be sufficient to give rise to an apprehension in the mind of the petitioner if those points are taken in isolation. The question, however, is what is the cumulative effect of those points in the mind of a litigant. It is well established that justice should not only be done but it must also manifestly end undoubtedly seen to have been done. In the case of dr. Hardit singh jaswant singh v. Bhagat singh jaswant singh and others, a. I. R. 1964 punjab 277, dua j. Had taken the view that the avernments made in the application. For transfer could not be accepted and the affidavit was excluded from consideration. But even then his lordship allowed the prayer for transfer on the ground that the language used by the learned subordinate judge in his comment indicated that the allegations made against him had to some extent upset him.

(9) In the present case what we are required to consider is whether facts and circumstances exist which give rise to a reasonable apprehension in the mind of the petitioner that he will not get justice if the suit is tried by the court before which it is pending. We have given our anxious consideration to the questions involved in this rule and have come to the conclusion that in the interests of justice the suit should be transferred to some other court. Mr. Mukherjee appearing on behalf of the opposite party very fairly contended before us that his client has no objection if the suit is transferred but he opposed this application on principles of law. Before we conclude we must however, make it clear that we do not mean or imply that we entertain any doubt about the integrity and impartiality of the learned additional district judge and it should not be taken to cast any aspersion or adverse remarks on him in this respect. It is the peculiar and special circumstance disclosed in this case which have induced us to take the view which we have taken.

(10) In the last place the contention of mr. Mukherjee on behalf of the opposite party has been that the present application is not maintainable on the ground that no revision lies against the order passed by a district judge refusing to transfer a case under section 24 and further that the petitioner once having made an application under section 24 before the district judge and that application having failed he is not entitled to move a fresh application under section 24 before the high court we are unable to accept this contention of mr. Mukherjee. The language used ed in section 24 is :

"the high court or the district court may, at any stage - transfer any suit. "

On a plain reading of the section, therefore, it cannot be said that moving an application before the district court will preclude the petitioner from moving a fresh application before the high court. In the case of hari nath biswas v. Debendra nath biswas 11 c. L. J. 218 also reported in 5 i. C. 771, which is a bench decision of this court, it has been held that if the district judge refuses to transfer a case under section 24 the petitioner may make a fresh application for transfer to the high court. The same view was taken in sheo nandan lal v. Mangal chand, a. I. R. 1927 pat. 383. In this view of the matter we need not concern ourselves with the question as to whether a revisional application under section 115 of the code is maintainable against the order passed by a district judge refusing to transfer a suit under section 24 of the code.

(11) Mr. Roy made a prayer before us that in case we allow the transfer application we should direct a trial de novo. We are not however inclined to allow this prayer made by mr. Roy at this stage as it will cause considerable hardship to the parties concerned. This rule is accordingly made absolute and we direct the learned district judge to transfer this case from the 11th court of the additional district judge to some other learned judge who will be in a position to hear out the suit expeditiously. In the circumstances we direct the parties to bear their respective costs in this rule. Let the records be sent down forthwith. Rule made absolute.

Gorachand Das v. Dipali Das

Structured Summary of the Opinion — Transfer Application under Section 24 read with Section 115

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (Mr. Roy)

Respondent's Arguments (Mr. Mukherji / Mr. Mukherjee)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gorachand Das v. Dipali Das

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