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Gauhati High Court · body

1995 DIGILAW 63 (GAU)

Krishna Roy Choudhury v. Ranjit Roy Choudhury

1995-03-11

A.K.PATNAIK

body1995
This is an application under section 24 of the Code of Civil Procedure, 1908 filed by the wife for transfer of Title (R) Suit No.9 of 1994 instituted by her husband in the Court of the learned District Judge, Nagaon for restitution of conjugal rights to the Court of the learned District Judge, Dibrugarh. 2. The ground taken by the petitioner wife in the application for transfer is that she has no income of her own and lives presently with her parents and brothers at Dibrugarh after operation of a tumour on her body and she is not accustomed to travelling alone and that her father is 75 years old and is a heart patient and her two brothers are service holders busy in their respective jobs and are not in a position to escort the petitioner every time from Dibrugarh to Nagaon for the aforesaid title suit in the Court of the District Judge, Nagaon. The petitioner has further stated in the application for transfer that the opposite party husband is a Railway employee working and residing at Lumding and has to travel from Lumding to Nagaon to prosecute the aforesaid suit. Being a Railway employee, he also has a Railway pass and can travel from Lumding to Dibrugarh without any expenses. On these facts, Mr. B C Das, learned counsel for the petitioner submitted that this is a fit case in which this Court should transfer the aforesaid suit from the Court of the learned District Judge, Nagaon to the Court of the learned District Judge at Dibrugarh and relied on the decision of the Supreme Court in the case of Shakuntala Modi vs. Om Prakash Bharuka, AIR 1991 SC 1104 and the decisions of different High Courts in Maya Choudhury vs. Sudhir Choudhury, (1989) 1 GLR 41; Pritikona Banarjee vs. CS Rabi Shankar Banarjee, AIR 1987 Calcutta 269; CS Shyamala vs. CS Srikantaiah, AIR 1990 Karnataka 87 and Nanda Kishore vs. SB Shivprakash, AIR 1993 Karnataka 87 in which matrimonial cases have been transferred on the application of the wife on similar grounds. 3. 3. An affidavit-in-opposition has been filed on behalf of the opposite party wherein the aforesaid prayer of the petitioner for transfer of the suit from Nagaon to Dibrugarh has been opposed and it has been stated therein that the opposite party would suffer severe hardship and inconvenience to prosecute the suit at Dibrugarh if the same is transferred as he is a Railway employee working and residing at Lumding and he has to look after his ailing parents, besides the dependent brothers and sisters and cannot afford to stay away from his house or place of work for long and that all the witnesses on behalf of the opposite party are from Lumding. In the affidavit-in-opposition, the opposite party has also offered to pay the expenses for the travel of the petitioner and one escort from Dibrugarh to Nagaon for the suit. Mr. K K Mahanta, learned counsel for the opposite party cited relying on the decision of the Supreme Court in the case of Indian Overseas Bank vs. Chemical Construction Co., (1979) 4 SCC 358 and the decision of this Court in the case of Gift House, New Market, Dimapur Town & another vs. Mohanlal Mundra & others, (1982) 1 GLR 13 and submitted that convenience and inconvenience of the parties cannot be a ground for transfer of a suit from one Court to another under section 24 of the Code of Civil Procedure, 1908. 4. In the case of Indian Overseas Bank (supra) relied on by Mr. Mahanta, the Supreme Court observed : "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. 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 to be a sure criterion justifying transfer." In the aforesaid decision, tharefore, the Apex Court has held that the High Court will not lightly change the forum chosen by the plaintiff to file the suit and that balance of convenience in favour of proceeding in another Court can be a material consideration, though not always a sure criterion, justifying transfer. In the second case (1982) 1 GLR 13 cited by Mr.Mahanta, a suit had been filed against Gift House for recovery of a sum of Rs.44,800/- and Gift House filed an application before this Court for transfer of the said suit and advanced the main contention that Zunhehoto where the suit had been filed was a distance of about 230 Kms from Dimapur and there being no public transport connecting Dimapur and Zunheboto the petitioners have to incur huge expenditure to travel to Zunheboto in connection with the case, but the Court held that the same would also apply to the plaintiff who will have to travel to Dimapur in the event the suit is transferred to Dimapur and that no transfer could be ordered at the convenience of one party to put the other to inconvenience. This was thus a pure and simple money suit arising out of a commercial transaction between the parties in which the Court rejected the prayer for transfer of the suit from one place to another on the ground of inconvenience to the defendant. This was thus a pure and simple money suit arising out of a commercial transaction between the parties in which the Court rejected the prayer for transfer of the suit from one place to another on the ground of inconvenience to the defendant. On the other hand, in the case of Shakuntala Modi vs. Om Prakash Bharuka (supra) cited by Mr.Das, learned counsel for the petitioner, the Supreme Court after taking into consideration the fact that the case filed by the husband at Delhi and the case filed by the wife at Dibrugarh with regard to custody of their children had to be tried by one Court took the view that the two cases should be tried at Dibrugarh and it appears from the narration of the facts in the said judgment that what weighed with the Supreme Court in taking the aforesaid view was that the husband who had offered travelling expenses to wife to come to Delhi for the case will not face any financial difficulty by travelling to Dibrugarh for prosecuting the litigation. Similarly, in the cases of Smti Maya Choudhury vs. Sudhir Choudhury, reported in (1989) 1GLR 41; Pritikona Banarjee vs. CS Rabi Shan kar Banarjee, AIR 1987 Calcutta 269; CS Shyamala vs. CS Srikantaiah, AIR 1990 Karnataka 146 and Nanda Kishore vs. SB Shivprakasb, AIR 1993 Karnataka 87, cited by Mr. Das, the High Courts have taken into consideration the financial position of the wife vis-a-vis that of the husband and other inconvenience that the wife will suffer and have ordered for transfer of the suit from one Court to another under section 24 of the CPC 1908. 5. Coming to the instant case, the Title (R) Suit No.9 of 1994 for restitution of conjugal right is presently pending in the Court of the learned District Judge, Nagaon. Neither the petitioner nor the opposite party resides at Nagaon. Hence, the petitioner as well as the opposite party will have to travel from Dibrugarh and Lumding respectively for the aforesaid suit at Nagaon. Neither the petitioner nor the opposite party resides at Nagaon. Hence, the petitioner as well as the opposite party will have to travel from Dibrugarh and Lumding respectively for the aforesaid suit at Nagaon. But while the opposite party is a Railway employee and can easily travel from Lumding to Nagaon for the aforesaid suit, the petitioner has no income of her own and is depending on the maintenance of Rs.300/- being paid by the opposite party pursuant to the order dated 18.1.94 passed under section 125 of the Code of Criminal Procedure, 1973 by the learned Chief Judicial Magistrate, Dibrugarh. The opposite party has in the affidavit-in-opposition offered the petitioner to and from travelling expenses by train with one escort for attending the Court at Nagaon, but this fact would indicate that the opposite party has no financial difficulty in prosecuting the litigation at Dibrugarh if the suit is transferred from-Nagaon to Dibrugarh. Moreover, as the petitioner has stated in the application that neither her father who is a heart patient and is aged about 75 years old, nor any of his brothers who are in service and have to attend to their duties can escort her to Nagaon, the offer of the travelling expenses made by the opposite party to the petitioner for travelling to Nagaon along with an escort would be of no avail to her. On these special facts and circumstances I am inclined to order transfer of the suit from Nagaon to Dibrugarh. 6. This application under section 24 of CPC is, therefore, allowed and it is ordered that Title (R) Suit No.9 of 1994 pending in the Court of the learned District Judge, Nagaon stands transferred to the Court of the learned District Judge, Dibrugarh. The records of the said suit will be transmitted by the learned District Judge, Nagaon to the learned District Judge, Dibrugarh within a month from today and the parties shall appear before the learned District Judge, Dibrugarh on the 20th of September, 1995 either personally or through their Advocates and a certified copy of this order shall be filed by the petitioner before the learned District Judge, Nagaon within 15 days from today.