Final Order 1

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IN THE COURT OF SESSIONS FOR GR.BOMBAY
Transfer Application No.20 of 2019
Boman P. Irani
(Deleted since deceased)
through legal heirs ..Plaintiffs
V/s.
1(a) Manoj Manilal Gala
& Ors. ..Defendants
Coram : H.H.THE PRINCIPAL JUDGE
SHRI V.G. BISHT
Dated : 25th March,2019
(C.R.No.19)
Advocate Mr.Zubin Dalal with advocate Mr.N.C. Parekh for
applicant/defendants.
Advocate Mr.N.N. Amin for respondent/plaintiff.
O R A L O R D E R
Read application. Read affidavit in reply (Exh.3). Read
affidavit of rejoinder to the affidavit of plaintiff no.2 (Exh.4).
2 On going through the application it appears that suit no.9070
of 1995 is pending before the 4th Additional Sessions Judge (HHJ Shri S.A.
Kazi) presently presiding in C.R. No.4. It further appears that during the
course of recording of crossexamination, certain questions were not
allowed to be taken on record by the Learned Presiding Officer on the
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ground that the preliminary issue of jurisdiction has decided everything.
3 It further appears that during the pendency of the suit,
Chamber Summons No.1544 of 2017 was taken out by the plaintiff to
amend the plaint and accordingly it was allowed. During the course of
argument on the said Chamber summons, it was pointed out by the learned
counsel for the defendant that the plaintiff had also requested deletion of
defendant no.2 and 2(b) and also requested to read such reasoning. The
Hon'ble Court refused to look into the said reasoning and informed the
counsel that it is only the final order that is to be read and not the
reasoning.
4 It then appears that during the course of arguments, the
plaintiff placed reliance on the order passed by the earlier Judge which
reads as under:
“The court has jurisdiction to try and decide the suit.”
According to the applicant, the present court pointed out and as also
asserted by the learned counsel for the plaintiff that the reasoning given by
the court while holding jurisdiction, the reasonings are also required to be
seen.
5 In view of the above, the applicant apprehends that if the
matter is further heard by the present Court, he will not get fair trial and
justice inasmuch as the court is heavily prejudiced.
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6 The above contentions are opposed by plaintiff no.2 by
denying all the averments. According to him the present application is
completely unreasonable, imaginary and is based on conjectures and
surmises and too nebulous for claiming transfer of case from the court.
There being no merit, the same is liable to be dismissed.
7 By way of rejoinder (Exh.4) to the present say, the applicant/
defendant no.1(b) denied all contentions and reiterated the contentions
raised in the transfer application.
8 Mr.Zubin Dalal, learned counsel for applicant, vehemently
submitted that the approach of the learned Presiding Officer is not proper
in not allowing the applicant to put the relevant questions in the cross
examination. Moreover, according to the learned counsel, there is no
proper interpretation of the order passed by the predecessor of the learned
Presiding Officer and then submitted the transfer of the case to any other
court. The learned counsel also urged that contentions of the application
be also taken into consideration while deciding the present application.
9 Mr.N.N. Amin, learned counsel for respondent, on the other
hand, opposed the submissions on the ground that the so called
apprehensions of the applicant are not well founded and are quite
unreasonable and imaginary. Since the sufficient grounds are not made
out, the application deserves to be rejected, argued learned counsel.
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10 The grievances of the applicant appear to be twofold: Firstly,
during the course of crossexamination the relevant questions are not
allowed to be put by the Learned Presiding Officer to the adversary and,
secondly, there is no proper interpretation of the order of the earlier
Presiding Officer which had held that the court has jurisdiction to try and
decide the suit. It appears that it is the second objection which weighed
most in the mind of the applicant compelling him to approach this court.
11 So far as the first grievance is concerned, merely because the
Presiding Officer had objected to certain questions being taken on record
by way of crossexamination does not mean that, in absence of anything
cogent and convincing material, the learned Presiding Officer is having
biased approach against the applicant. If at all it was so, then the care can
be taken by requesting the Presiding Officer to allow the applicant to put
the question to the adversary and if there is any objection, then the same
can be recorded and after hearing both sides on the objection, it be decided
in accordance with law.
12 Coming to the next grievance, in my considered opinion, it
appears not to be well founded and the apprehension aired by the
applicant is not absolutely justified. Even if it is so that the learned
Presiding Officer stated that the whole reasoning is required to be seen in
order to find out the conclusion of his Predecessor that the court has
jurisdiction to try and decide the suit, does not in any manner indicates his
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bias mind or that he is heavily prejudiced. Mere apprehension would not
suffice the purpose. Therefore, the second ground which is heavily relied
on does not in any manner satisfy the conscience of this court.
13 For the reasons stated herein above, I do not find any merit in
the application. Hence, the following order:
O R D E R
Transfer Application No.20 of 2019 is rejected.
However, the Learned Presiding Officer is directed to record
the objection of the either party, if any, in response to any question
putforth in the evidence and so also the answer given and then decide after
hearing both sides in accordance with law.
25/03/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 25/03/2019
Transcribed on : 25/03/2019
Signed by HHJ on : 25/03/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 26/03/2019 (12.30 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 25th March,2019
Order signed by P.O. on 25th March,2019
Order uploaded on 26th March,2019
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