No Judicial Officer is expected to sit with mouth shut in open court - No Transfer Petition Maintainable on that ground alone - Trail Judge - opined that Or.38, rule 5 C.P.C. is a proper petition rather than Or.39, rule 1 and 2 C.P.C. - adjourned the case several times as the respondent absent despite of allegations that the respondents are going to alienate the properties - their lordships held that expressing an opinion is not an advise to the party and further held that A Judge, who is presiding the Court, cannot be expected to be a mere silent spectator. In fact, Judges have to play an active role. They should not and need not allow the parties or advocates to argue for hours together on the same points or on an issue when it is clear that in an application or a suit or a proceeding is not maintainable. There is nothing wrong if a Judge openly says that a particular petition is not maintainable. It cannot be treated as an advise to a party. Sometimes, Judges may be seeking further information, clarification or assistance from the advocates while arguing the matters. Knowing or unknowingly, sometimes, they may even go to the extent of expressing their view about the maintainability or otherwise of a petition or a suit. If the request of the petitioner is accepted, it amounts to giving a direction to all the Presiding Officers to shut their mouth while conducting the Court proceedings and this cannot be allowed - 2015 A.P. (2013) MSKLAWREPORTS




The first respondent filed a detailed counter.
The remarks of the Officer were also called for.  The Presiding Officer observed
as follows:
"On 25.07.2012 while the petitioner was submitting reply arguments, the Court
sought for clarification about the maintainability of the petition since the
suit O.S.No.14/2012 is filed for recovery of money with interest and no breach
of obligation by the respondents 1 to 9 existing in his favour is averred in the
petition and since the same point was argued by the respondents 1 to 9 besides
taking several pleas about the maintainability of the petition and in that
context there is an interlocution that normally in a suit for recovery of money
no injunction petition is maintainable without alleging breach of obligation
existing in favour of petitioner by the other side and it is usual practice of
filing petition under Order-38, Rule-5 seeking attachment of properties and even
in that case also no ex parte order shall be made without issuing notice to
other side to show cause why attachment should be ordered and the clarification
was sought from the petitioner with honest intention to knowing maintainability
of petition filed under Order 39 Rule 1 of CPC seeking temporary injunction
against the respondents 1 to 9 and this Court never tried to give advice the
petitioner in I.A.No.24/2012 to file a petition for attachment."

As seen from the letter of VII Additional District and Sessions Judge (FTC),
Vijayawada, he has simply observed that no injunction petition is maintainable
and further he seems to have observed that it is a usual practice of filing
petition under Order 38 Rule 5 seeking attachment of properties. Mere
observation that it is a usual practice of filing the petition under Order 38
Rule 5 cannot be attributed as an advise to a party.  Admittedly, the entire
proceedings and conversation took place in the open Court in the presence of
both the counsel.  It has to be seen that neither in the affidavit of the
petitioner nor in the affidavit of the learned counsel appearing for the
petitioner before the lower Court, no specific allegations have been made
against the Presiding Officer and no motives have been attributed to him.  The
petitioner only contends that the observations created a doubt in his mind.  The
advocate appearing for the petitioner in the lower Court ought to have guided
the petitioner that it is a normal and usual practice in the Court.  The
advocate must know the Court craft and also the usual practices adopted while
conducting the Court proceedings.
A Judge, who is presiding the Court, cannot be expected to be a mere silent
spectator.  In fact, Judges have to play an active role. They should not and
need not allow the parties or advocates to argue for hours together on the same
points or on an issue when it is clear that in an application or a suit or a
proceeding is not maintainable.  There is nothing wrong if a Judge openly says
that a particular petition is not maintainable.  It cannot be treated as an
advise to a party. Sometimes, Judges may be seeking further information,
clarification or assistance from the advocates while arguing the matters.
Knowing or unknowingly, sometimes, they may even go to the extent of expressing 
their view about the maintainability or otherwise of a petition or a suit.  If
the request of the petitioner is accepted, it amounts to giving a direction to
all the Presiding Officers to shut their mouth while conducting the Court
proceedings and this cannot be allowed. Though the learned counsel for the
respondent submitted that he has no objection to allow the application and
though the Presiding Officer of the Court has also expressed his view that the
matter may be transferred from his Court to some other, but in the interest of
justice and in the interest of judicial administration and to give a free hand
to the Presiding Officers and to function effectively while conducting the
Court, I am of the considered view that the applications of this kind should not
be encouraged and it will give a wrong impression to the society.-2015 A.P.(2013) MSKLAWREPORTS

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