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Madhya Pradesh High Court · body

2000 DIGILAW 539 (MP)

Kirti Mishra v. Krishna Mishra

2000-05-12

V.K.AGRAWAL

body2000
ORDER 1. This application under Section 24 of the Civil Procedure Code has been filed for transfer of Civil Suit No. 168-A/95, pending before second Civil Judge Class-1, Khandwa. 2. Facts leading to the present petition in brief are that the petitioner and respondent No.1 claim to be the wives of deceased Ravi Narayan Mishra. Ravi Narayan Mishra was in service in the Police Department and died in a road accident in 1993 at Sehore. The respondent No. 1 filed an application before Superintendent of Police Sehore, praying that the pensionary benefits, provident fund, gratuity etc., be paid to her consequent to the death of her husband Ravi Narayan Mishra. The Superintendent of Police Sehore, however, directed the respondent No. 1 to obtain a succession certificate with regard to the above claims. The respondent No. 1 Smt. Krishna Mishra thereafter filed an application for grant of succession certificate before District Judge Sehore. The said application was resisted by the petitioner and others. First Additional District Judge Sehore by his order dated 30.1.95 (Annx.Nl) directed that the parties to the case should get the matter decided by filing a regular Civil Suit. 3. Thereafter, the respondents filed Civil suit (Annx. B). An ex-parte decree dated 31.10.96 was passed. (be Judgment thereof is Annx.C. However, on the application filed by the petitioner under Order 9 Rule 13 CPC. (be above ex-parte judgment and decree was set aside as per order (Annx.D). 4. As a result of setting aside ex-parte judgment and decree, the civil suit filed by the respondents is now again pending for hearing before second Civil Judge Class-I, Khandwa. 5. In the present petition, it has been averred that the Court at Khandwa has no jurisdiction to try the said suit, and that the respondents/plaintiffs belong to influential family and they by adopting unfair means had earlier obtained the ex-parte judgment and decree in the Civil Suit. It was further averred that the respondents have claimed in the suit for payment of benefits and Government dues payable on the death of Ravi Narayan Mishra which has to be paid by Superintendent of Police Sehore. Therefore, the suit should have been filed at Sehore. It has further been averred that the petitioner is a widow and is not possessed of sufficient means to defend the suit at Khandwa, and she apprehends harassment at the hands of the respondents and their relatives. Therefore, the suit should have been filed at Sehore. It has further been averred that the petitioner is a widow and is not possessed of sufficient means to defend the suit at Khandwa, and she apprehends harassment at the hands of the respondents and their relatives. Hence, prayer for transfer has been made, Application for transfer has been opposed by the respondents. 6. Learned counsel for the petitioner submitted that the Civil Court at Khandwa has no territorial jurisdiction to try the suit, and therefore, deserves to be transferred. Learned counsel for the petitioner has relied on Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand v. Ramji Tripathi Lal Bihari Tripathi ( 1979 JLJ 67 = 1979 MPLJ 3(5) in support of his contention. It has further been submitted that the respondents had filed an application for obtaining succession certificate at Sehon;, and therefore, there was no justification for them to have filed the suit at Khandwa. It was also averred that the appellant is a widow and shall not be in a position to defend her case, if it is heard and tried at Khandwa. 7. The learned counsel for the respondents has submitted that, there is no justification whatsoever for transfer of the case. The suit can proceed at Khandwa and the petitioner has already taken steps to get the earlier ex-parte judgment and decree set aside at Khandwa. It has, therefore, been prayed that the application for transfer may be dismissed. 8. It may be noted that the first ground raised by the petitioner for transfer of the case is that the Court at Khandwa has no jurisdiction to try the suit. If that be so, the petitioner shall be free to raise that objection in the trial Court by raising appropriate plea. However, the matter as to whether the Court at Khandwa has territorial jurisdiction or not, cannot he considered and cannot form the ground for transferring the case under the powers conferred under Section 24 of CPC. The Law laid down in Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand's case (supra) does not support the contention as above of the petitioner. 9. It has been contended that the petitioner is widow and does not possess sufficient means to defend the suit. However, it may he noted that the respondent No. 1 is also a widow. The Law laid down in Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand's case (supra) does not support the contention as above of the petitioner. 9. It has been contended that the petitioner is widow and does not possess sufficient means to defend the suit. However, it may he noted that the respondent No. 1 is also a widow. Further, the petitioner has been pursuing her remedy at Khandwa Court, as would be clear from her own averments, and that she has got the ex-parte decree set aside by filing an application under Order 9 Rule 13 CPC. It may further be noticed, that the petitioner was herself in service, as would be clear from the averments in para 1.1 of the present petition. Therefore, it cannot be said that she is a destitute. Moreover, the vague apprehension expressed by her that she will be harassed by the respondents brother does not seem to be well founded. No specific instance of any harassment has been given. Mere fanciful allegation would not constitute a good cause for transferring the suit as has been laid down in the case of Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami. Swaroopanand's case (supra) relied upon by the learned counsel for the petitioner. A case has to be transferred only if there is reasonable apprehension of the party to the suit that he might not get justice in the Court and interest of justice and parties convenience has also been taken into consideration, while deciding the application under Section 24 of CPC. 10. In the instant case the respondents are also claiming to be the widow and son of deceased Ravi Narayan Mishra, while the petitioner also stands in the same footing as she also claims to be the widow of late Ravi Narayan Mishra. The petitioner has been availing of her remedy earlier at Khandwa Court and had got it redressed also. She has not made specific allegation of harassment. In the circumstances, her application for transfer of the suit does not deserve to be allowed. 11. Accordingly this application for transfer stands dismissed. Parties shall bear their own costs.