PALLAKKAN ABDULSALAM Vs. THOTTEN SAVITHRI AND ORS.

JUDGEMENT

(1.) The petitioner herein is the plaintiff and the respondents herein are the defendants in O.S.No.157/2011 on the file of the Sub Court, Payyannur. The suit was one for specific performance and in the alternative for return of money. It is further averred that the subject matter of the suit was in respect of 40.75 cents of land @ Rs. 6,75,000/- per cent and the total amount involved in the sale transaction was about Rs. 3 crores. That when the matter was posted for trial on 4.10.2017, the learned Sub Judge had said in a threatening manner that the petitioner/plaintiff should settle the matter by accepting Rs. 25 lakhs and that when the petitioner was not willing for the said arrangement, the learned Sub Judge threatened the petitioner stating that he would not grant a decree for specific performance and that he has got discretionary power, etc., and that the learned Sub Judge also immediately appointed an Advocate Commissioner for taking evidence of the defence on 10.10.2017 and the matter was posted to 11.10.2017 for submitting report of the Advocate Commissioner. That none of the parties has got any difficulty in appearing before the court to adduce evidence and inspite of that without assigning any reason an Advocate Commissioner was appointed prescribing a time schedule and that there was no opportunity in the schedule for examining the witnesses cited by the petitioner in the witness list and no summons was issued, etc. It is further stated that the learned Sub Judge has acted in a biased manner and that the above said context had created serious doubts in the mind of the fairness of the learned Sub Judge, etc. It is in the light of these aspects that the petitioner has filed the present Transfer Petition (civil) with the following prayers:

(2.) Heard Sri. M. Sasindran, learned counsel appearing for the petitioner/plaintiff and Sri.Philjo Varughese Philips, learned counsel appearing for the respondents/defendants.

(3.) In the course of the submissions made by both sides, the learned Advocate appearing for the respondents has pointed out that there is major divergence in the very case set up by the petitioner. In furtherance of this submission, it is argued that the case set up by the petitioner in para 4 of the averments in this Transfer Petition is substantially divergent from the case projected in para 3 of Anx.A-4 petition dated 6.10.2017 filed by the petitioner before the court below. It is pointed out in para 4 of the present Transfer Petition that the case is projected as if the incidents in question had happened in the court on 4.10.2017. It is averred in para 4 of the Transfer Petition that the suit was listed on 4.10.2017 and the plaintiff was present with a proof affidavit and an application was filed for the defendants to adjourn the case to a date after 3 days and the said request was allowed. That earlier the matter was mediated between the parties as per the direction of the court through the mediation efforts of an Advocate (Sri. C. Narayanan Nair) and the matter was settled and that on coming to know about that on 4.10.2017, on which day, the plaintiff was present in the court for adducing evidence, the learned Sub Judge called the plaintiff and directed in a threatening manner to accept the amount paid by the plaintiff and settle the matter and told the plaintiff that he would grant a decree for specific performance stating that he has got discretionary power. When the learned Sub Judge exceeded his limit unbecoming of a judicial officer, the learned counsel for the petitioner/plaintiff had interfered and the counsel for the petitioner/plaintiff had pointed out that if the court takes a decision even before commencement of the evidence, there is no point in conducting the case before such a Judge and the counsel also stated that he and his party have lost faith with the Judge in view of the above said behaviour on the part of the Judge, etc. Whereas Anx.A-4 is the application filed by the petitioner/plaintiff on 6.10.2017, wherein he has requested the learned Sub Judge to transfer the case to another court as per the reasons stated in para 3 of the application dated 6.10.2017. It is stated in Anx.A-4 dated 6.10.2017 that "today" (viz, 6.10.2017) when the case had come up for consideration, the learned Sub Judge has called the plaintiff as well as the Advocate for the defendants and had discussed the case and had pointed out to the petitioner/plaintiff that he has no scope for succeeding the litigation and that this has led to his loss of faith in the fairness of the court and that the learned Sub Judge may refrain himself from the hearing of the case, etc. On that basis, it is argued by the learned counsel for the respondents/defendants that the very case projected by the petitioner is full of embellishments and contains untrue and incorrect factual versions and that the petitioner has made out a credible case for urging the plea for transfer of the case. The learned counsel appearing for the respondents would also point out that even in para 3 of the reply affidavit filed by the petitioner, he has chosen to specify as to whether the alleged incidents had happened in the court on 4.10.2017 as alleged in para 4 of the Transfer Petition or on 6.10.2017 as alleged in para 3 of Anx.A-4 application dated 6.10.2017, etc., and that the petitioner's version lacks credibility, etc. Whereas the learned counsel appearing for the petitioner would point out that even in para 8 of the counter affidavit filed by the respondents it is clearly admitted that the incident of that nature had happened in the court on 6.10.2017 and the counsel for the petitioner has taken the attention of this Court to the para 8 of the counter affidavit filed. In para 8 it is stated that the matter was successfully mediated on 4.10.2017 on which day the case was adjourned to 6.10.2017, that since the matter was settled, the learned Sub Judge asked as to the reasons for arriving a settlement in the suit quite casually and the respondents/defendants had then appraised that they were ready for reasonable settlement and even mentioned that the amount that they had offered to the petitioner instead of Rs. 25 lakhs, which they have received as advance, etc., and that the petitioner/plaintiff was prepared for any reasonable settlement for any amount below Rs. 1.5 crores and that the counsel for the plaintiff had then responded by stating in the court that if the settlement is effected for any amount below Rs. 1.5 crores the petitioner's counsel will lose his client and that respondents were prepared to accept such unfair demand made on behalf of the plaintiff, etc. It is further stated in para 8 of the counter affidavit of the respondents that, while so, the petitioner without any provocation said that he lost confidence in court and wanted the suit to be transferred, etc.