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1994 DIGILAW 151 (GAU)

Pranami Dutta Mazumdar v. Prasanta Kumar Choudhury

1994-07-29

J.N.SARMA

body1994
This application under section 24 of the Code of Civil Procedure read with section 151 of the Code of Civil Procedure has been filed by the wife Smti Pranarai Dutta Mazumdar praying for transfer of Title (Divorce) Suit No. 19 of 1994 from the Court of the District Judge, Dibrugarh to Guwahati. 2. The brief facts are as follows : The petitioner and the opposite party were* married on 9.12.92 at Guwahali according to Hindu rites. The marriage was negotiated one. That there arose misunderstanding and clashes between the parties and the petitioner tried to come back to Guwahati from Dibrugarh The petitioner was expecting that her husband would come to Guwahati and take her back but the husband did not turn up. In the meantime, the petitioner has got herself admitted in a computer course in Delhi where at present she is studying. That the husband filed a Title (Divorce) Suit No. 19 of 1994 in the Court of the District Judge, Dibrugarh, praying for the dissolution of the marriage under section 13 of the Hindu Marriage Act. Necessary notice was served on the wife of present petitioner. The petitioner states that it will be extremely difficult for her to attend the proceeding in Dibrugarh. Further, the marriage was solemnised in Guwahati and the petitioner also resides in Guwahati with her parents and as such she prays that this case may be transferred to Guwahati. 3. An affidavit-in-opposition has been filed on behalf of the opposite party, husband wherein he has stated that he is employed in a Tea Estate in the district of Dibrugarh and is working there. The father of the opposite party is the General Manager of Segunbari Tea Estate at Margherita in the district of Tinsukia. The house of the opposite party at Santipur has been let out. The other allegations in the application are denied and he prays that the transfer application may be rejected. 4. Section 19 of the Hindu Marriage Act, 1955 provides for the Court to which petition shall be presented. Section 19 is quoted below : "19. The house of the opposite party at Santipur has been let out. The other allegations in the application are denied and he prays that the transfer application may be rejected. 4. Section 19 of the Hindu Marriage Act, 1955 provides for the Court to which petition shall be presented. Section 19 is quoted below : "19. Court to which petition shall be presented - Every petition under this Act shall be presented to the District Court within the local limits, of whose ordinary original civil jurisdiction-(i) the marriage was solemnized, or (ii) the respondent, at the time of presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive." 5. A bare reading of section 19 will show that the Court at Dibrugarh has the jurisdiction to try the matter but the question is that whether the power should be exercised under section 24 to transfer this case to Guwahati. 6. It is settled law that the transfer should not be ordered for reasons of sentimentality and the balance of convenience of all the parties and the witne­sses, if any, must be considered. A transfer cannot be ordered merely to serve the convenience of the defendant. The convenience of both the parties is one of the factors to be taken into account. The plaintiff in a suit usually is the 'dominus litis' so the forum chosen by the plaintiff should not usually be changed unless compelling circumstance demands it. 7. I have heard Shri GK Bhattacharyya, learned Advocate for the petitioner and Shri DN Choudhury learned Advocate for the opposite party/ respondent. 8. The law is settled that in passing an order of transfer, the search should be for justice and the Court must be satisfied that the justice could more likely to be done between the parties by refusing to allow the plaintiff to continue his suit in the forum of his choice. The onus of establishing sufficient ground for the transfer lies heavily on the applicant. The onus of establishing sufficient ground for the transfer lies heavily on the applicant. Preponderance of balance of convenience is of prime consideration for transfer of suit. 9. Shri Choudhury, in this connection places reliance in AIR 1979 SC 1514 (Indian Overseas Bank, Madras vs. Chemical Construction Co & others) where in paragraph 16, the Supreme Court pointed out as follows : "The principle governing the general power of transfer and withdrawal under section 24 of the Code is that the plaintiff is the dominus litis and, as such, entitled to institute his suit in any forum which the law allows him. The Court should not lightly change that forum and compel him to go to another Court, with consequent increase in inconvenience and expense of prosecuting his suit A mere balance of convenience in favour of proceedings in another Court, albeit a material consideration may not always be a sure criterion justifying transfer." 10. After hearing the learned counsel of both the parties and on perusal of the materials on record I am not satisfied that a case of transfer has been made out. Accordingly, this application stands rejected.