IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(C).No. 262 of 2009()
1. M.P.KAMALA BAI, D/O.KITTUNNI,
... Petitioner
Vs
1. JOSEPH THOMAS, ADVOCATE,
... Respondent
For Petitioner :SRI.M.SASINDRAN
For Respondent :SRI.P.S.SREEDHARAN PILLAI
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :02/12/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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Tr.P.(C).Nos.262 AND 263 OF 2009
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Dated this the 2nd day of December 2009
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ORDER
These two petitions are filed under Section 24 of
the Code of Civil Procedure. Petitioner is common in both
the petitions. She is the defendant in O.S No.294 of 2007
pending on the file of 1st Additional Sub Court, Kozhikode
which is instituted by the respondent/plaintiff for a decree of
specific performance on an agreement of sale. She is also
the plaintiff in O.S No. 330 of 2008 pending on the file of the
3rd Additional Sub Court, Kozhikode wherein she has sought
for setting aside two documents, a mortgage deed and also
an agreement of sale which are alleged to have been
collected from her by the respondent/defendant in the suit
by fraud, undue influence and misrepresentation.
Respondent is stated to be a practicing advocate in the
courts of Kozhikode. Petitioner is stated to be an old lady
aged 78 years permanently settled at Kannur. She seeks
Tr.P.(C).Nos.262
AND 263 OF 2009 Page numbers
transfer of both the suits to the Sub Court, Kannur
canvassing a case that she may not get justice if the cases
are tried at Kozhikode since the respondent is a practicing
advocate at that place. Her inconveniences and difficulties
in appearing before the courts at Kozhikode for
prosecuting/defending the suit are also canvassed for the
transfer requested for.
2. Notice given, the respondent has entered
appearance. The request for transfer is vehemently
opposed by the learned counsel appearing for the
respondent contending that the presence of the petitioner
for trial of the suits at the most may be required hardly for
one or two days and the plea canvassed that in view of her
old age she has to undergo a lot of difficulties to attend the
court at Kozhikode hardly merits any consideration.
Similarly, the other ground canvassed that since the
respondent is a practicing advocate in the courts at
Kozhikode, petitioner will not get justice, cannot be accepted
Tr.P.(C).Nos.262
AND 263 OF 2009 Page numbers
as a tenable and sustainable ground for transfer, according
to the counsel.
3. Having regard to the submissions made by the
counsel on both sides and taking note of the facts and
circumstances presented, I find, the fundamental principle in
dispensation of justice is that justice should not only be done
but appear to be done. Petitioner, an aged lady, it seems,
has an apprehension that she will not get justice if the
cases are tried in the courts at Kozhikode since the
respondent is a practicing advocate in the courts at that
place. May be her apprehension is baseless and unfounded,
but, still when such an apprehension is raised, it cannot be
brushed aside for the reason that she is unable to produce
any material to substantiate that ground canvassed for. The
age of the petitioner and also the apprehension canvassed
by her that being a practicing advocate the respondent will
have more access to the courts perhaps not of influencing
the presiding officer but in getting things done for
Tr.P.(C).Nos.262
AND 263 OF 2009 Page numbers
prosecution of the cases, I find it is better and appropriate to
transfer both the cases to a court outside Kozhikode district.
In the given facts of the case, I direct for transfer of both the
cases, O.S No.294/2007 of 1st Additional Sub Court,
Kozhikode and O.S No. 330/2008 of 3rd Additional Sub Court,
Kozhikode to the Principal Sub Court, Thalassery. The 1st
Additional Sub Judge and also 3rd Additional Sub Judge shall
transmit the records of the respective cases to the Principal
Sub Court, Thalassery without delay. Parties are directed to
appear before the Principal Sub Court, Thalassery on
06/01/2010. Subject to the above observations, the petition
is disposed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv