The High Court, by the single order of 9th June 2011, dismissed four connected transfer petitions (Tr.P(C) Nos. 150 to 153). The petitioner alleged bias and judicial misconduct regarding witness examination in underlying civil suits, which was dismissed without comment on the allegations.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.T.SANKARAN
THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933
Tr.P(C).No. 150 of 2011()
--------------------------------OS.188/2009 of MUNSIFF MAGISTRATE, ERATTUPETTA ....................
PETITIONER/ 1ST DEFENDANT
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LORENCE JOSEPH, S/O.JOSEPH, NAMBUDAKATH HOUSE, MELUKAM VILLAGE, EDAMARUKU P.O.
BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SAJU.S.A SRI.K.C.KIRAN
RESPONDENT(S): PLAINTIFF & 2ND DEFENDANT
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1. MARYKUTTY GEORGE, W/O.GEORGE, PERUBLAKKUNNEL, P.O.KULATHUKADAVU, MOONNILAVU, KOTTAYAM DISTRICT-686586.
2. KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ENVIRONMENTAL ENGINEER, KOTTAYAM-686001.
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/06/2011, ALONG WITH Tr.P.(C) 151 OF 2011 AND CONNECTED CASES THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
smt
K.T.SANKARAN, J .
---------------------------------------------Tr.P(C)Nos.150, 151, 152 & 153 OF 2011
Dated this the 9th day of June, 2011
ORDER
The petitioner is the first defendant in O.S.No.188 of 2009, the defendant in O.S.No.64 of 2009, the 5th defendant in O.S.No.138 of 2009 and the defendant in O.S.No.204 of 2009 on the file of the Court of the Munsiff of Erattupetta. The petitioner prays for transferring the aforesaid four suits to either the Munsiff's Court, Palai or the Munsiff's Court, Thodupuzha.
“4). The above suit has already come up for trial. Recording of the evidence has already been commenced. The evidence on the side of the plaintiff has already been closed. The defendant is partibly examined. There are other suits pending before the very same court in connection with the conduct of the above said query. The learned Munsiff, without any valid reason,
Tr.P(C)Nos.150, 151, 152 & 153 OF 2011
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refuses to record certain answers elicited by the counsel for the petitioner during the course of the examination of witnesses. Those questions and answers are very much relevant as far as the contentions of the petitioner are concerned. Even though the counsel for the petitioner insisted for recording those answers, the Munsiff said that he will not record the same. When the witnesses concerned gave answers in favour of the petitioner to some questions put by the counsel of the petitioner, the learned Munsiff clarified and explained the questions to the witnesses enabling them to retract from the earlier answers and give answers in accordance with their contentions. Various comments made by the learned Munsiff during the course of examination of witnesses make the petitioner honestly believe that he has already pre-judged the matter. It is evident from the way in which the trial is being conducted that the learned Munsiff is prejudiced against the petitioner. There are various instances of not recording the answers given by the witnesses and also allowing them to retract from earlier answers. The petitioner honestly believes that if the case is tried before the said Judge, he will not get justice. When petitioner wanted his lawyer to take necessary steps to avoid this situation, he told the petitioner that he is helpless in this matter and the only remedy available to the petitioner to approach this Hon'ble Court to get the trial of the suit transferred either to Thodupuzha court or Palai court.”
3. When the Transfer Petitions came up on 26.5.2011
Tr.P(C)Nos.150, 151, 152 & 153 OF 2011 3
for admission, the learned Munsiff was directed to file a report with respect to the averments contained in paragraph 4 of the Transfer Petitions. In compliance with the direction the learned Munsiff, through proper channel, submitted a report. The relevant portion of the report reads as follows:
“The above suit was listed to 11/3/11 on 28/1/2011. On 11/3/11, the plaintiff was present and examined as PW1. Exts.A1 to A6 were marked and evidence of plaintiff was closed on the very same day. The plaintiff was cross examined in length by the counsel for D1 and it runs upto nine pages. All the questions put to the witness were recorded by me and I have not interfered in the cross examination in any way, as alleged by the petitioner in the aforesaid Tr.P.C. The allegation is baseless and untrue. I have not made any comments during the course of examination of witnesses, as alleged by the petitioner. This allegation is also false and are not correct. On 11/3/11, after closing the evidence for the plaintiff, the case was posted to 18/3/11 for the evidence of defendant. On that day, the defendant was absent and filed an application stating that, the defendant is hospitalized and requested for an adjournment. I allowed the request and adjourned the case to 1/4/11. On that day, it was submitted that, the counsel for the defendant is hospitalized and requested further time for defence evidence. On that
Tr.P(C)Nos.150, 151, 152 & 153 OF 2011
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day also, the request was allowed and the case was posted to 28/5/11. On 28/5/11, the counsel for the defendant submitted that, the petition is pending before the Hon'ble High Court of Kerala and further proceedings of this case was stayed by the Hon'ble High Court of Kerala. These are the proceedings in the aforesaid case before this Court.
It is humbly submitted that, the allegations of the petitioner are not correct. The defendant never appeared before this Court for examination in this case, even though he was given several chances. I have not approached the case in a prejudiced manner. The allegations in the aforesaid petition in such a way, is baseless and is not correct. It is humbly submitted that, your lordship may take appropriate decision in the aforesaid petition.”
In the facts and circumstances mentioned above, without expressing any remark on the conduct of the petitioner, I am inclined to dismiss the Transfer Petitions. Accordingly, all the Transfer Petitions are dismissed.
K.T.SANKARAN, JUDGE .
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1 issue framed by the court
Whether the transfer petitions challenging the conduct of the trial and alleging bias of the Munsiff should be allowed.
Lorence Joseph
Marykutty George
Kerala State Pollution Control Board
K. T. Sankaran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
