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1996 DIGILAW 239 (GAU)

Bibha Debnath v. Anil Debnath

1996-10-04

A.K.PATNAIK

body1996
JUDGMENT AND ORDER This is an application under section 22 of the Code of Civil Procedure, 1908. 2. The facts briefly are that the opposite parties Nos. 1 to 4 filed MS No.6 of 1994 in the Court of the Munsiff, Hojai in the district of Nagaon for compensation for breach of contract of marriage against the petitioner and the opposite party Nos.5 to 9. The case as made out in the plaint was that the plaintiffs are permanent residents of village Tikadarbasti under Jogijan Mouza in the district of Nagaon and the defendants are permanent residents of Dulabari in Tezpur Town in the district of Sonitpur. The plaintiff Nos. 1, 2 and 3 settled the marriage of their youngest brother (plaintiff No.4) with the defendant No.7 who was the daughter of defendant No. 1 and niece of defendant Nos.2 and 3. The defendant Nos.4, 5 and 6 are the brothers/cousins of defendant No.7 and the defendant No.8 was the mediator for the marriage. The marriage ceremony was fixed on 20.5.94 at Tezpur at the residence of the defendants. The plaintiff printed invitation cards and invited guests to attend the said marriage ceremony and also the Boubhat which was scheduled to be held on 22.5.94 at the residence of the plaintiffs at Tikadarbasti at Hojai. On the day of the marriage, however, the plaintiff No.4 suddenly fainted at the residence of the defendants at Tezpur and regained his e sense after 2 or 3 minutes. But the defendant Nos.2, 5 and 6 and uncle and cousins of the bride stopped the marriage ceremony on the plea that the bridegroom was suffering from 'epilepsy'. After verbal exchange between the plaintiffs and defendants, the plaintiffs left the residence of the defendants without the marriage ceremony being solemnised. The plaintiffs case is that the bridegroom (plaintiff No.4) was not suffering any such, 'epilepsy' and the defendants have in a malafide manner rediculed and humiliated the plaintiffs before the public and the society. The plaintiffs further case is that as a consequence of the aforesaid wrongful acts of the defendants, the plaintiffs suffered an expenditure of approximately Rs.50,000/- in making all arrangements for the Boubhat ceremony at Hojai which had to be abandoned and although the loss suffered by the plaintiffs, pecuniary, mental and physical, was not less than Rs.1 lakh, the plaintiffs claimed a compensation of Rs.25,000/- from the defendants. Soonafter receipt of the summons the defendants including the present petitioner issued a notice to the plaintiffs as contemplated under section 22 CPC for transfer of the said suit to Tezpur where all the defendants reside. 3. Mr. Khetri, learned counsel for the petitioner, submitted that under section 22 CPC, where a suit can be instituted in any one, two or more Courts, the defendants after notice to the other parties may at the earliest possible opportunity apply to have the suit transferred to another Court. He further submitted that in the present case since the major part of the cause of action arose at Tezpur the suit could be instituted at Tezpur as well. Since all the ingredients of section 22 CPC have been fulfilled in the present case, the High Court in exercise of its powers under sections 22 and 23 of the CPC should direct that the suit be transferred from the Court of the learned Munsiff, Hojai in Nagaon district to any competent Court in Tezpur in Sonitpur district particularly when defendants reside at Tezpur. 4. Dr. H. Das, learned counsel for the opposite parties, however, submitted that although no written objections have been filed, the opposite parties have serious objections to the transfer of the suit from Hojai to Tezpur. He cited the decision of this Court in the case of M/s Gift House, New Market, Dimapur Town vs. Mohanlal Mundra & another, (1982) 1 GLR 13 in support of his submission that no transfer can be ordered at the convenience of one party so as to put the other party to inconvenience. He also relied on the judgment of the Apex Court in the case of Indian Overseas Bank vs. Chemical Construction Company, AIR 1974 SC 358, wherein it has been held that greater inconveniences or expenditure to another party may be a factor to be considered for transferring a suit from one Court to another but cannot be the sole ground from transferring the suit and the Court would not lightly invoke its jurisdiction to transfer the suit unless interest of justice requires such transfer. Dr. Das submitted that the petitioner has not shown how the interest of justice would be served by ordering the transfer of the suit from the Court of the Munsiff Hojai to the competent Court at Tezpur. Dr. Dr. Das submitted that the petitioner has not shown how the interest of justice would be served by ordering the transfer of the suit from the Court of the Munsiff Hojai to the competent Court at Tezpur. Dr. Das submitted that it has now been settled by Courts that under law, the plaintiff as the dominus litis was entitled to choose the place where he could instituted the suit. 5. On a reading of the decision of this Court in the case of M/s Gift House, New Market, Dimapur vs. Madanlal Mundra (supra) cited by Dr. Das, I find that the said decision was on an application under section 24 CPC. The decision of the Supreme Court in the case of Indian Overseas Bank vs. Chemical Construction Company (supra) cited by Dr. Das is a decision on an application under section 25 CPC, in which the Supreme Courthas held that the principle that the plaintiff as the dominus litis is entitled to institute the suit in any forum which the law allows him would not apply to applications to the Supreme Court under section 25 of the CPC under which its powers are wide enough to transfer a suit if it is expedient in the interest of justice. The aforesaid two decisions cited by Dr. as, therefore, are not under section 22 CPC. The said section 22 CPC is quoted herein below : "22. The aforesaid two decisions cited by Dr. as, therefore, are not under section 22 CPC. The said section 22 CPC is quoted herein below : "22. Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties may, at the earliest posible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties, (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed." A reading of the aforesaid section 22 CPC would show that it makes a departure from the general principle that the plaintiff as the dominus lifts has the right to choose the forum which the law allows him to institute the suit and confers a right on the defendant to apply to the Court for transferring a suit from one Court to another if the suit could be instituted in any one of the aforesaid Courts. But the said section further makes it clear that where the defendant exercise such a right and file an application to the Court, it is the Court which after considering objection of other parties, if any, shall determine in which of the several Courts having jurisdiction the suit shall proceed. Hence, even where the ingredients of section 22 CPC are fulfilled and the defendant makes an application for transfer of a suit from one Court to another, the Court will not transfer the suit automatically but will have to determine if injustice will be suffered by the defendant, if the suit was not so transferred. 6. In the present case, the only grounds for transfer stated in the application for transfer and urged by Mr. Khetri are that the defendants are rt sidents of Tezpur Town and a major part of the cause of action arose within the jurisdiction of Tezpur Courts. 6. In the present case, the only grounds for transfer stated in the application for transfer and urged by Mr. Khetri are that the defendants are rt sidents of Tezpur Town and a major part of the cause of action arose within the jurisdiction of Tezpur Courts. In my opinion, these two grounds without any other ground showing that the defendants would actually suffer injustice if the suit was not transferred from the Court at Hojai to the Court at Tezpur are not sufficient for the Court to order transfer of the suit from the Court of the learned Munsiff, Hojai to the competent Court of Tezpur under section 22 of the CPC. In the result, the application filed by the defendant-petitioner for transfer of the suit from the Court of the learned Munsiff, Hojai to the competent Court at Tezpur is dismissed. No costs.