D. K. JANAKI v. LINGA RAJU — 1989 DIGILAW 320 (KAR)

BALAKRISHNA, J. ( 1 ) THIS is a Civil Petition filed under Section 24 of the Civil Procedure Code seeking transfer of case No. M. C. 2 of 1989 which is pending before the Civil Judge, Hassan, to the Family Court at Bangalore for being tried along with P. Mis. No. 12 of 1989. ( 2 ) THE material facts of the case are as follows: the petitioner was married to the respondent on 12-6-1977 at Bangalore and, out of the wedlock, are born a son on 22-10-1978 and a daughter on 2-5-1985 at Bangalore. The parents of the petitioner have settled down in Bangalore since 1972, according to the petitioner. The respondent is a Surgeon who is working in a Hospital at Hassan being a Government employee. According to the respondent, he is a specialist in general surgery conducting 15 to 20 operations a week in the hospital at Hassan. The respondent preferred a petition for divorce against the petitioner under Section 13 of the Hindu marriage Act, 1955, in the Court of the Civil judge, Hassan, in M. C. No. 2 of 1989. It is further stated that the respondent and the petitioner last resided together only at Hassan. The petitioner also filed a case in p. Mis No. 12 of 1989 not at Hassan but before the family Court at Bangalore for maintenance at the rate of Rs. 5,000/- per month. ( 3 ) THE point which arises For consideration is whether this is a fit case for transfer of m. C. No. 2 of 1989 from the Court of the civil Judge at Hassan to the Family Court at bangalore for being tried along with P. Mis. No. 12 of 1989. ( 4 ) IT is contended on behalf of the petitioner that an objection has been taken belore the Trial Court at Hassan that it has no jurisdiction to try the case and that she has also filed an application under Section 151 of the C. P. C. supported by an affidavit seeking exemption from personal appearance. However, the Civil Judge at Hassan had posted the case for reconciliation proceedings on 20-7-1989 and also had called upon the petitioner to appear personally before the Court. Whereas the matrimonial case was filed at Hassan during february 1989 by the respondent, the maintenance petition was fried by the petitioner before the Family Court at Bangalore on 21-4-1989. However, the Civil Judge at Hassan had posted the case for reconciliation proceedings on 20-7-1989 and also had called upon the petitioner to appear personally before the Court. Whereas the matrimonial case was filed at Hassan during february 1989 by the respondent, the maintenance petition was fried by the petitioner before the Family Court at Bangalore on 21-4-1989. It is alleged that the respondent is a powerful person having both men and material at his command and his sole object is "to finish off the petitioner from any place other than the parental house of her". Another allegation is that the respondent filed M. C. No. 2 of 1989 at Hassan with the ulterior motive of dragging the petitioner from Bangalore to Hassan and to harass her. It is further alleged that the intention of the respondent is to liquidate the petitioner by taking advantage of her availability. . the court premises at Hassan or elsewhere in the course of the bus journey. A serious allegation is made that the respondent is a habitual drunkard with all kinds of vices and that both before and subsequent to the filing of M. C. No. 2 of 1989, the respondent has been threatening danger to the life of the petitioner if she did not consent to a divorce and, therefore, the petitioner cannot travel to hassan alone from Bangalore. That the father of the petitioner is aged and weak, unable to move freely and the condition of the mother of the petitioner is similar is also alleged. It is stated that her only brother is a class I officer in State Service and he is otherwise busy with his own avocation and family affairs. That the petitioner has to accompany her two minor children to the schools every day from the house since the schools are located at a distance of 1 to 2 k. Ms. That she has to stay in a hotel at Hassan in the absence of any residence whenever she visits Hassan for the Court appearance k. also alleged. The petitioner has expressed her apprehension that the respondent would make use of the opportunity to endanger her life. That it is extremely difficult for the petitioner to take her witnesses from Bangalore to Hassan for the purpose of adducing evidence is alleged by the petitioner. The petitioner has expressed her apprehension that the respondent would make use of the opportunity to endanger her life. That it is extremely difficult for the petitioner to take her witnesses from Bangalore to Hassan for the purpose of adducing evidence is alleged by the petitioner. Another allegation made by the petitioner is that both the petitioner and respondent were living together at Hassan til! 18-6-1986. Earlier on 15-6-1986 it is alleged that the respondent assaulted the petitioner and caused her both internal and external injuries and there- after on 18-6-1986 the respondent himself induced the petitioner to go over to Bangalore with the children to take treatment and rest assuring that they will lead a good marital life henceforth. According to the petitioner, until December 1986, the respondent used to visit the parental house of the petitioner periodically and, thereafter, stopped his visits. It is alleged that in 1989 the respondent clandestinely filed the matrimonial case at hassan before the Civil Judge. ( 5 ) ON the other hand, the respondent has stated that the petitioner and the respondent last resided at Hassan before the petitioner deserted him and went back to her parents at bangalore. The respondent has contended that he has to perform on the average about 15 to 20 operations per week and he cannot afford to leave Hassan for the purpose of attending the Court at Bangalore since it would dislocate the arrangements for treatment of his patients. He has stated that his services are required at the hospital round the clock irrespective of holidays and that he has an onerous responsibility of attending to post operational treatment of the patients. He has stated that he has hardly taken 8 days casual Leave varying from half a day to 3 days at a time between June 1986 and december 1986. He has also stated that during the leave period he visited his mother at native place and on other occasions visited bangalore along with wellwishers and friends in order to persuade the petitioner to go back to the respondent and to live with him. The respondent has also contended that he would be rendered helpless and forced to withdraw from the proceedings if the case is transferred from Hassan to Bangalore. The respondent has also contended that he would be rendered helpless and forced to withdraw from the proceedings if the case is transferred from Hassan to Bangalore. That the entire incident culminating in the matrimonial proceedings happened at Hassan and that the witnesses are only the neighbouring Doctors, staff and the public of hassan is emphasised by the respondent. According to the respondent, the attempt of the petitioner to have the case transferred from Hassan to Bangalore is to deter the witnesses of the respondent from coming to bangalore for the purpose of giving evidence not only on account of inconvenience and also on account of expenses involved. The respondent has also stated that the object of the petitioner is to harass him in all possible ways. It is alleged by the respondent that the father of the petitioner is a very rich person and that he is behind the litigation by poisoning the mind of his daughter and also to have a hold not only on his daughter but also on the respondent. It is alleged that "his wealth and vanity has over taken sanity. " That the petitioner's brother is K. A. S. Officer working at Bangalore who is actively supporting the petitioner is alleged. It is also stated that the unmarried sister of the petitioner is employed and is also living with her father and she is helping the petitioner. The respondent has stated in para 7 of his affidavit as follows:-"i submit to remove any suspicion of my bonafides, I am preferred to meet the travelling, staying and incidental expenses, the petitioner may be exposed to on each of her visit to Hassan, lest she should be inconvenienced even though petitioner ancestoral house is in Hassan Taluk and her two uncles staying besides a host of a relatives and all staying in Hassan city also. Sri Karigowda is having a large number of Houses at Hassan. It should cause petitioner no inconvenience as she has often visited Hassan alone and stayed with them. . . . . . . "in para 8, the respondent has stated as follows:"i also submit that the two proceedings do not together come within the ambit of section 24 of C. P. C. as the nature of relief grantable and jurisdiction to be exercised and enquiry to be made are entirely independent and cannot be blended at all. . . . . . . "in para 8, the respondent has stated as follows:"i also submit that the two proceedings do not together come within the ambit of section 24 of C. P. C. as the nature of relief grantable and jurisdiction to be exercised and enquiry to be made are entirely independent and cannot be blended at all. I am further advised to submit that the convenience of both the parties, circumstances, thereof relative hardship besides jurisdictional factors are to be considered in the absence of any allegations against the court. Inconvenience of the witnesses and their non-availability readily would be a clinching factor though not a concluding factor. . . . . . . . . . . . . . . . "it was further contended that the petitioner should have no grouse since, ac cording to her, the Court at Hassan has no jurisdiction to try the matrimonial case. Arguments were heard at length. ( 6 ) THE respondent who has instituted matrimonial proceedings before the Civil judge, Hassan, enjoys the status of "dominus litis" and, therefore, is endowed "with the right to sue" in any forum permitted by the civil Procedure Code and in the absence of compelling reasons, he cannot be diverted to seek relief in a remote Court. There is no convincing reason which persuades me to drive the respondent from Hassan to Bangalore. Personal inconvenience and hardship of securing witnesses and transporting them to the Court confronting the petitioner who is seeking transfer of the case from Hassan to Bangalore is as much applicable to the respondent as it is to the petitioner. The pleading of harassment is common to both. It is subsequent to the laying of the matrimonial case by the respondent at Hassan that the petitioner preferred a miscellaneous case at Bangalore claiming maintenance of Rs. 5,000/- per month. The respondent has come forward before this court offering material help to defray the expenses of travel to and fro for every hearing at Hassan besides meeting the expenses of an escort to accompany the petitioner on every date of hearing. This seems to be a fair and reasonable gesture which the petitioner would be illadvised to repudiate. The respondent has come forward before this court offering material help to defray the expenses of travel to and fro for every hearing at Hassan besides meeting the expenses of an escort to accompany the petitioner on every date of hearing. This seems to be a fair and reasonable gesture which the petitioner would be illadvised to repudiate. Furthermore, the respondent through his counsel has voluntarily assured before this Court at the time of arguments that he would never venture to cause harm or annoyance to the petitioner at any time either during her travel or during her visits to Hassan for appearance before the Court or otherwise. The submission of the learned Counsel for the respondent that there is a significant fall in the backlog of cases in the Court of the Civil judge at Hassan attributable to the expansion of jurisdiction of the District Court and the consequent greater possibility of early disposal of matrimonial cases which are few in number before that Court cannot be lost sight of. In these circumstances, it would not be illogical to presume that the balance of convenience does not tilt in favour of the petitioner. The grievance of the petitioner is less than reasonable in the aforesaid circumstances. ( 7 ) WANT of jurisdiction of the Court at hassan to try the case, as alleged by the petitioner, cannot be a basis for transfer to bangalore nor a bar for trial at Hassan unless after hearing on merits, the trail Court at hassan rules that it has no jurisdiction to try the case. Mere allegation cannot take away the jurisdiction unless it is a proved fact. ( 8 ) THAT the children of the petitioner were admitted to school at Hassan prior to the institution of matrimonial proceedings at hassan is an admitted fact. That the children would be affected during the occasional absence of the petitioner whenever she travelled to Hassan which is 115 miles away from Bangalore in order to attend the court, is an untenable argument. The inconvenience or adverse effect is so fleeting and so trivial that no reasonable person of ordinary sense and temper would complain of. That the children would be affected during the occasional absence of the petitioner whenever she travelled to Hassan which is 115 miles away from Bangalore in order to attend the court, is an untenable argument. The inconvenience or adverse effect is so fleeting and so trivial that no reasonable person of ordinary sense and temper would complain of. There are numerous K. S. R. T. C. buses which ply between Hassan and Bangalore and vice versa with such a frequency, day in and day out, that it is reasonably possible for the petitioner to return to Bangalore on the same night. Law is intended to care for reasonable possibilities and not extraordinary or fantastic possibilities. ( 9 ) IN a matrimonial case filed by the respondent before the Court at Hassan, ordinarily the burden is mainly on the respondent in discharging the onus and comparatively there is little burden on the petitioner. However, in regard to her miscellaneous case pending before the Court at Bangalore, since she has chosen to sue at bangalore, her onus is capable of discharge by producing the witnesses at Bangalore. On an over all assessment of the facts and circumstances of the case, I am convinced that the balance of convenience docs not tilt in favour of the petitioner. No rigid principle could cater to the facts and circumstances of all cases matrimonial or otherwise, without amenability to a rational distinction. Nor can it be said that the rule of immunity negatives the rule of liability to the transfer of any case. Susceptibility to transfer is to be guided by broader consideration for, the life of law is common-sense, and not entirely logic or experience. Nor can it be said that the rule of immunity negatives the rule of liability to the transfer of any case. Susceptibility to transfer is to be guided by broader consideration for, the life of law is common-sense, and not entirely logic or experience. As observed earlier, the danger to life having been removed by the undertaking given before this Court at the time of hearing and that the financial burden taken away from the petitioner by the financial help held out by the respondent to meet the expenses of both the petitioner and her escort in order to enable her to attend the Court at Hassan on every date of hearing, and further the burden of securing the presence of witnesses of both the petitioner and respondent being equal, and the dictum of law that the Court should not lightly change the forum and compel a person in the position of the respondent to go elsewhere - i. e. from Hassan to Bangalore, I am of the opinion that it would not be in the interest of justice to transfer the case in M. C. No. 2 of 1989 to Bangalore for being clubbed and tried along with P. Mis. No. 12 of 1989. ( 10 ) THE learned Counsel for the petitioner has placed reliance on several decisions which are enumerated below:-1) AIR 1973 All. 94 2) AIR 1974 All. 36 3) AIR 1966 Mys. 178 4) AIR 1978 All. 18 5) 1984 K. L. T. 916; 6) 1983 (2) Kar. L. J. 265; and 7) AIR 1981 SC 1143 i have gone through the facts, the points which arose for consideration and the principles laid down in the aforesaid decisions. I am constrained to observe that the instant case stands on a different footing both on facts and principles from the cases cited above. In short, the said decisions are inapplicable to the facts of this case. ( 11 ) IN the result, for the reasons stated above, this Civil Petition is dismissed. However, the Civil Judge, Hassan, is directed to dispose of the case No. M. C. 2 of 1989 pending on his file on merits and in accordance with law within six months from today. The question of jurisdiction is left open for decision on merits. It is open to the petitioner, if so advised, to move this Court for transfer of P. Mis. The question of jurisdiction is left open for decision on merits. It is open to the petitioner, if so advised, to move this Court for transfer of P. Mis. No. 12 of 1989 from the family Court at Bangalore to the Court of the Civil Judge at Hassan. A copy of this order shall be communicated to the Civil judge, Hassan, forthwith. ( 12 ) IN the circumstances of the case, there will be no order as to costs. --- *** --- .