A transfer petition loses its basis when the alleged bias against a judicial officer is no longer applicable due to that officer's retirement.

JUDGMENT

Anil K.Narendran, J.

This appeal is one filed by the appellant under Section 5 of the Kerala High Court Act , 1958, challenging the final order of the learned Single Judge dated 31.05.2023 in Tr.P.(C)No.835 of 2022 and also the earlier order dated 10.04.2023 in that Tr.P.(C).

2. The appellant filed Tr.P.(C)No.835 of 2022 before the learned Single Judge, invoking the provisions under Section 24 of the Code of Civil Procedure , 1908, seeking transfer of O.P.Nos.367 of 2019 and 389 of 2019 from the Family Court, Thalassery to the Family Court, Vadakara, alleging bias against the Presiding Officer of the Family Court, Thalassery. In that Tr.P.(C), the appellant filed I.A.No.1 of 2023, invoking the provisions under Section 195 read with Section 340 of the Code of Criminal Procedure , 1973 and Section 209 of the Indian Penal Code, 1860 to take cognizance of perjury alleged to have been committed by the respondents and to award special damage of Rs.50 lakhs for defamation. In I.A.Nos.1 and 2 of 2022, the learned Single Judge granted an interim stay of the proceedings in O.P.Nos.367 of 2019 and 389 of 2019 pending before the Family Court, Thalassery. That interim order was vacated by the order dated 10.04.2023 (Annexure A2) for the reasons stated therein and the Family Court, Thalassery was directed to proceed with the trail and disposal of O.P.Nos.367 of 2019 and 389 of 2019, in accordance with law, as expeditiously as possible. By Annexure A2 order, the learned Single Judge directed Registry to post the transfer petition and I.A.No.1 of 2023 for disposal, immediately after summer vacation. On 31.05.2023, when the transfer petition came up for consideration, the learned Single Judge dismissed the same for the reason that the Presiding Officer of the Family Court, Thalassery, against whom bias was alleged, has already been retired from service on attaining the age of superannuation and a new officer has already assumed charge of that court. By Annexure A3 order dated 31.05.2023, the learned Single Judge dismissed the transfer petition since the matter has become infructuous for the aforesaid reason.

3. Challenging Annexure A2 order dated 10.04.2023, the appellant filed a writ appeal, invoking the provisions under Section 5 of the Kerala High Court Act . On 21.06.2023, when that writ appeal came up for consideration as unnumbered (Filing No.870 of 2023), a Division Bench of this Court passed the following order;

“The court finds that there is no need to consider the office objection since the Transfer Petition was disposed of on 31.05.2023.”

4. Now, the appellant is before this Court in this appeal challenging Annexures A2 and A3 orders of the learned Single Judge in the transfer petition.

5. Heard the learned counsel for the appellant- petitioner.

6. As held by a Full Bench of this Court in Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust [(2005) 4 KLT 865], when an application for transfer or withdrawal of a suit from one court is made under Section 24 of the Code of Civil Procedure , the court has to adjudicate that matter regarding transfer or withdrawal after issuing notice to the parties interested and after giving an opportunity of hearing. An order passed after such an adjudication is certainly appealable under Section 5 (i) of the Kerala High Court Act . The Full Bench held further that, even though an order passed at the instance of one party to the suit by the single Judge under of the Code is appealable under S.5(i) of the , a word of caution is also necessary. When an appeal is filed under (i) of the against the order passed under of the by a learned Single Judge, the Division Bench must be reluctant to interfere in the matter unless it is manifestly illegal and erroneous or carrying grave or substantial injustice.

7. In the instant case, the appellant filed transfer petition before the learned Single Judge, invoking the provisions under Section 24 of the Code of Civil Procedure , 1908, seeking transfer