SUDALAIKANNAN AND SORNAKALA Vs. LAKSHMIPRIYA

JUDGEMENT

(1.) The Defendants 2 and 3 in O.S. No. 128 of 2008 are the Petitioners herein. The suit is filed by the Respondents 1 and 2 herein as the Plaintiffs 1 and 2 therein for the relief of partition and the suit was seriously contested by the Defendants 2 and 3. After pleading is completed and issues are framed, the suit stood adjourned for trial and after the examination of the Plaintiffs' side witnesses, the second Defendant entered the witness box as D.W.1 and in the course of his chief-examination, he sought to produce one document and the same was objected to on the ground of payment of insufficient stamp duty. The Defendants 2 and 3 have also filed I.A. No. 211 of 2010 to receive the document as one of exhibits with 10 times stamp duty penalty and the said I.A was seriously contested by the Plaintiffs and the trial court has, after due contest, passed a detailed order on 13.09.2010 thereby directed the Petitioners/Defendants to pay a sum of Rs. 11,25,641/- as stamp duty penalty within one month. Aggrieved against the same, the Defendants preferred C.R.P. No. 2054 of 2010 before this Court and this Court by order, dated 07.01.2011, partly allowed the Civil Revision Petition by confirming the order of the trial Court with regard to the nature of the document with further direction issued to the trial Court to collect the stamp duty penalty on the basis of extent of right of executant of the document in question. The trial court has in compliance with the order of the High Court calculated the stamp duty penalty but wrongly at Rs. 6,95,819/- and the same was subsequently at the instance of the Plaintiffs and on the basis of the memo filed by the Plaintiffs, corrected as Rs. 10,07,063/-. The trial Court has also by order dated 17.02.2011 granted time till 24.02.2011 to comply with payment and thereafter extended the time upto 03.03.2011 to deposit the stamp duty penalty.

(2.) In the meanwhile, the Defendants have come forward with this Transfer Civil Miscellaneous Petition on 01.03.2011 on the ground that the stamp duty penalty calculated lesser on earlier occasion was enhanced by way of correction without calling upon the Petitioners to file their own calculation memo. It is their further case that after the stamp duty penalty is arrived at on 17.02.2011, the learned Counsel on record for the Defendants 2 and 3 sought reasonable time to prefer Special Leave Petition before Apex Court. Their requests made for adjournment on that ground on 17.02.2011 and 03.03.2011 are declined by refusing to receive the petition for adjournment and by passing oral remarks in the open Court that the matter will not be further adjourned and the matter will be disposed of on merits if the deficit stamp duty is not paid within the stipulated time. The Defendants 2 and 3 as Petitioners in this present Transfer Civil Miscellaneous Petition and in the additional affidavits dated 04.03.2011 and 17.03.2011 contended that the failure on the part of the trial court in granting adjournments as sought for and the refusal of the Presiding Officer to receive the adjournment petition and in returning it raises genuine apprehension that they are not likely to get justice in the hands of the Presiding Officer and the same compelled them to approach this Court to transfer the same from the Court concerned.

(3.) It may be true that the Petitioners have raised specific averments against the Presiding Officer in their original and additional affidavits particularly in the additional affidavits. In the second additional affidavit, the averments raised by the Petitioners are that the suit proceedings were stayed by the High Court during the pendency of the Transfer Petition on 08.03.2011 and the Petitioner was in treatment from 04.02.2011 to 09.02.2011 and was discharged from the hospital on 09.02.2011 and he filed an application for adjournment on health ground on 07.03.2011 and the petition was taken up for hearing on 08.03.2011 on which date the Presiding Officer made some open comments in the Court Hall to the effect that she is not bothered about the pendency of the Transfer Petition and by the time the Transfer Petition is disposed of, she will dispose of the suit on merits and by making such comments, the matter stands adjourned to 09.03.2011 for cross-examination of the Defendant side witnesses, on which date DW1 could not attend the Court and he filed an application for appointment of an Advocate Commissioner for recording his cross-examination and when the same was presented in open court, it was refused to be received by the Office and that when the same was insisted to be received, the same was received and returned. It is further stated therein that despite representation made to the Court concerned about the stay order granted by this Court till 22.03.2011, the suit stood adjourned to 19.03.2011 before the expiry of the stay order and the conduct of the Presiding Officer in refusing to receive the adjournment petition and in adjourning the matter to future date of hearing much before the expiry of the stay order would to great extent justify the apprehension expressed herein in support of the transfer sought for.