1. Heard learned counsel for the applicant and perused the record.
2. This is an application seeking transfer of Suit No. 531 of 2008, pending in the court of Civil Judge (Senior Division), Ballia to any other Court in the same district.
3. It is stated that respondent no. 2 has spread a rumour in the village that suit will be decided in his favour and he will get a favourable order. It is further stated that since the Presiding Officer is biased, therefore, the case should be transferred to another court. It is also stated that making similar allegations the applicant moved transfer application before District Judge, Ballia, which has been rejected vide order dated 24.09.2014 and on the same grounds this application has been moved. In para 4 of the affidavit applicant himself has said that respondent no. 2 is spreading a rumour in the village that suit will be decided in his favour.
4. The mere observations of Presiding Officer of the Court while hearing a case does not mean that he has made up his mind in a particular manner so as to justify an allegation of bias against such Presiding Officer and this would not justify transfer of case from one Court to another. A Judge is not expected to remain silent during course of hearing and not to express any opinion. A sphinx like attitude is not expected from a Presiding Officer. There has to be an effective discussion and effective attempt to conciliate or to clarify the misunderstanding or to get the issues clear, so that the issues can be settled or a just and proper decision can be arrived at. If in that process the Presiding Officer would make a statement it should not be misunderstood as an expression of decision. (Smt. Sangeetha S. Chugh vs. Ram Narayan V. and others, AIR 1995 Karnataka 112 and Official Assignee, Madras vs. Inspector-General of Registration, Bangalore and Anr., AIR 1981 Madras 54 or 24)
5. In one matter certain observations were made by a Judge in an earlier case. When a subsequent matter came up before him this was sought to be a ground for transfer but declined by the Court in G. Lakshmi Ammal vs. Elumalai Chettiar and Ors, AIR 1981 Madras 24.
6. The allegations of bias of Presiding Officer, if made the basis for transfer of case, before exercising power under Section 24 C.P.C., the Court must be satisfied that the apprehension of bias or prejudice is bona fide and reasonable. The expression of apprehension, must be proved proved/ substantiated by circumstances and material placed by such applicant before the Court. It cannot be taken as granted that mere allegation would be sufficient to justify transfer. In Smt. Sudha Sharma (supra) the Court observed that it is the duty of learned counsel to draft the application and made allegations with utmost care and caution. Hon'ble B.M. Lal, J. (as His Lordship then was), said:
"9. ......a foremost duty casts upon the counsel concerned while drafting and making allegations in the transfer petition against the Judge concerned with utmost care and caution, particularly in making wild allegations against the Presiding Judge. But, it appears that now-a-days it has become common feature to make allegations against the Court Presiding Judge. The counsel should realise that they are also officers of the Court. Introducing fanciful and imaginary allegations as grounds for transfer and harbouring apprehension such grounds that fair and impartial justice would not be done should always be deprecated.
10. Nonetheless, it is also important for all those who are engaged in the task of administering justice to remember that it is incumbent on them to create and maintain such confidence and atmosphere by giving every litigant an assurance by their judicial conduct that fair and impartial justice will be imparted. It is necessary to create such a confidence in the mind of the litigants so that their faith may not be shaken in Courts of law."
7. Mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. A judicial order made by a Judge legitimately cannot be made foundation for a transfer of case. Mere presumption of possible apprehension should not and ought not be the basis of transfer of any case from one case to another. It is only in very special circumstances, when such grounds are taken, the Court must find reasons exist to transfer a case, not otherwise. (Rajkot Cancer Society vs. Municipal Corporation, Rajkot, AIR 1988 Gujarat 63; Pasupala Fakruddin and Anr. vs. Jamia Masque and Anr., AIR 2003 AP 448; and, Nandini Chatterjee vs. Arup Hari Chatterjee, AIR 2001 Culcutta 26)
8. Where a transfer is sought making allegations regarding integrity or influence etc. in respect of the Presiding Officer of the Court, this Court has to be very careful before passing any order of transfer.
9. In the matters where reckless false allegations are attempted to be made to seek some favourable order, either in a transfer application, or otherwise, the approach of Court must be strict and cautious to find out whether the allegations are bona fide, and, if treated to be true on their face, in the entirety of circumstances, can be believed to be correct, by any person of ordinary prudence in those circumstances. If the allegations are apparently false, strict approach is the call of the day so as to maintain not only discipline in the courts of law but also to protect judicial officers and maintain their self esteem, confidence and above all the majesty of institution of justice.
10. The justice delivery system knows no caste, religion, creed, colour etc. It is a system following principle of black and white, i.e., truth and false. Whatever is unfair, that is identified and given its due treatment and whatever is good is retained. Whoever suffers injustice is attempted to be given justice and that is called dispensation of justice. The prevailing system of dispensation of justice in Country, presently, has different tiers. At the ground level, the Courts are commonly known as "Subordinate Judiciary" and they form basis of administration of justice. Sometimes it is said that subordinate judiciary forms very backbone of administration of justice. Though there are various other kinds of adjudicatory forums, like, Nyaya Panchayats, Village Courts and then various kinds of Tribunals etc. but firstly they are not considered to be the regular Courts for adjudication of disputes, and, secondly the kind and degree of faith, people have, in regular established Courts, is yet to be developed in other forums. In common parlance, the regular Courts, known for appropriate adjudication of disputes basically constitute subordinate judiciary, namely, the District Court; the High Courts and the Apex Court.
11. The hierarchy gives appellate and supervisory powers in various ways. The administrative control of subordinate judiciary has been conferred upon High Court, which is the highest Court at provincial level and is under constitutional obligation to see effective functioning of subordinate Courts by virtue of power conferred by Article 235 read with 227 of the Constitution. No such similar power like Article 235, in respect to High Court is exercisable by Apex Court, though it is the highest Court of land. Its judgments are binding on all. Every order and judgment of any Court or Tribunal etc., in the Country, is subject to judicial review by Apex Court. This is the power on judicial side.
12. In Ajay Kumar Pandey, Advocate, In Re:, (1998) 7 SCC 248, the Court said that superior Courts, i.e. High Court as also the Apex Court is bound to protect the Judges of subordinate Courts from being subjected to scurrilous and indecent attacks, which scandalise or have the tendency to scandalise, or lower or have the tendency to lower the authority of any court as also all such actions which interfere or tend to interfere with the due course of any judicial proceedings or obstruct or tend to obstruct the administration of justice in any other manner. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is necessary for the courts to enable them to discharge their judicial functions without fear.
13. If there is a deliberate attempt to scandalize a judicial Officer of subordinate Court, it is bound to shake confidence of the litigating public in the system and has to be tackled strictly. The damage is caused not only to the reputation of the concerned Judge, but, also to the fair name of judiciary. Veiled threats, abrasive behaviour, use of disrespectful language, and, at times, blatant condemnatory attacks, like the present one, are often designedly employed with a view to tame a Judge into submission to secure a desired order. The foundation of our system is based on the independence and impartiality of the men having responsibility to impart justice i.e. Judicial Officers. If their confidence, impartiality and reputation is shaken, it is bound to affect the very independence of judiciary. Any person, if allowed to make disparaging and derogatory remarks against a Judicial Officer, with impunity, is bound to result in breaking down the majesty of justice.
14. I cannot ignore the fact that much cherished judicial independence needs protection not only from over zealous executive or power hungry legislature but also from those who constitute, and, are integral part of the system. Here is a case where an Advocate has drafted a petition since the litigants, namely petitioners, hereat does not appear to understand the legal complexity much. The Advocate forgetting the higher status conferred upon him, making him an Officer of the Court, has chosen to malign Judicial Officer of the Subordinate Court, based on caste consideration as also the nature of his appointment over which he himself has no control. In any case, that, by itself, has no connection with his performance and function as Presiding Officer of the Court.
15. An Advocate's duty is as important as that of a Judge. He has a large responsibility towards society. He is expected to act with utmost sincerity and respect. In all professional functions, an Advocate should be diligent and his conduct should also be diligent. He should conform to the requirements of law. He plays a vital role in preservation of society and justice system. He is under an obligation to uphold the rule of law. He must ensure that the public justice system is enabled to function at its full potential. He, who practices law, is not merely a lawyer, but acts as moral agent. This character, he cannot shake off, by any other character on any professional character. He derives from the belief that he shares sentiment of all mankind. This influence of his morality is one of his possession, which, like all his possession, he is bound to use for moral ends. Members of the Bar, like Judges, are the officers of the Court. Advocacy is a respectable noble profession on the principles. An Advocate owes duty not only to his client, but to the Court, to the society and, not the least, to his profession.
16. I do not intend to lay down any code of conduct for the class of the peoples known as "Advocates", but certainly I have no hesitation in observing that no Advocate has nay business to condemn a Judge merely on the basis of his caste, creed or religion or for any other similar trait or attribute. If there is something lacking on the part of a Judicial Officer touching his integrity, Advocates, being Officers of the Court, may not remain a silent spectator, but should come forward, raising their voice in appropriate manner before the proper authority, but there cannot be a licence to any member of Bar to raise his finger over the competency and integrity etc. of a Judicial Officer casually or negligently or on other irrelevant grounds. Here the competence and capacity of the concerned Judicial Officer has been attempted to be maligned commenting upon his integrity and honesty. It deserves to be condemned in the strongest words. No one can justify it in any manner. Thinking of intrusion of such thought itself sounds alert. It is a siren of something which is not only very serious, but imminent. A concept or an idea which should not have cropped up in anybody's mind, connected with the system of justice, if has cropped up, deserves to be nipped at earliest, else, it may spreads its tentacles to cover others and that would be a dooms day for the very institution.
17. This Court also made similar observations in Smt. Munni Devi and others Vs. State of U.P. and others, 2013(2) AWC 1546 and in para 10, said:
"10. Be that as it may, so far as the present case is concerned, suffice is to mention that the Constitution makers have imposed constitutional obligation upon the High Court to exercise control over subordinate judiciary. This control is both ways. No aberration shall be allowed to enter the Subordinate Judiciary so that its purity is maintained. Simultaneously Subordinate Judiciary can not be allowed to be attacked or threatened to work under outside pressure of anyone, whether individual or a group, so as to form a threat to objective and independent functioning of Subordinate Judiciary."
18. In the present case the transfer of original suit is being sought on the ground of alleged bias of Presiding Officer of the court, which is founded admittedly on sheer heresay, as is evident from para 4 of the affidavit in which the applicant himself has said that respondent no. 2 is spreading a rumour in the village. Moreover, the allegations have not been substantiated at all. The application, therefore, has been filed in a very careless and reckless manner just to malign the image and reputation of a judicial officer and cannot be taken lightly by this Court.
19. Besides the fact that I do not find any ground to transfer the aforesaid case I am also of the view that here is a case where the applicant should fail with exemplary costs.
20. In view of above, I do not find any reason to transfer the case. The application is accordingly dismissed with costs, which I quantify to Rs. 3500/-.
Order Date :- 28.10.2014 AK