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2003 DIGILAW 249 (ORI)

Kabita Biswal v. Niasi Biswal and five

2003-03-25

P.K.TRIPATHY

body2003
ORDER 25.3.2003 — Heard. This application under Section 24, C.P.C. has been filed by the petitioners who figure as defendant Nos.6 and 7 in Title Suit No.54 of 2002 pending in the Court of Civil Judge (Senior Division), Nayagarh. The opposite party is the plaintiff in that suit. 2. It is not in dispute between the parties that plaintiff is the mother of late Jogeswar Biswal who while working in Air Force died on 11.2.2002. The petitioners/defendant Nos. 6 and 7 are the wife (widow) and son of said Jogeswar Biswal. Defendant Nos. 1 to 5 are the officials in the Ministry of Defence and Air Force. Plaintiff has filed the suit inter alia for injuncting defendant Nos. 1 to 5 not to make payment of all service benefits, Death-cum- retirement benefits of late Jogeswar Biswal to defendant Nos.6 and 7 and she has claimed 1/3rd share in such service and Death-cum-retirement entitlements. 3. It is also the admitted fact that plaintiff/opposite party resides in village Nimapatna and the defendant Nos. 6 and 7 are at present residing at village Balakatti. Plaintiff is an old lady aged about 65 years whereas the defendant No. 6, is aged about 28 years and defendant No.7 is a child aged about 2 years. 4. Petitioners have sought for the relief of transfer of the said suit to a Court of competent jurisdiction at Bhubaneswar inter alia on the grounds that -(i) because of their age factor it will not be convenient for the defendants 6 and 7 to regularly attend the Court and defend the suit at Nayagarh and (ii) because of the conduct in the family of the plaintiff in ill-treating her after the death of her husband and the plaintiff having three able bodied sons surviving she possess the threat perception to appear in the suit at Nayagarh. Plaintiff has denied to the assertion on threat perception. At the same time she has also pleaded that she being an old woman, it will not be convenient for her to make journey upto Bhubaneswar to prosecute her case at such old age. 5. While advancing the prayer in support of the argument under Section 24, C.P.C., Mr. Plaintiff has denied to the assertion on threat perception. At the same time she has also pleaded that she being an old woman, it will not be convenient for her to make journey upto Bhubaneswar to prosecute her case at such old age. 5. While advancing the prayer in support of the argument under Section 24, C.P.C., Mr. S.K. Misra, learned counsel for the petitioners being cognizant of the objections raised by the opposite party argues that in fairness to both the parties if the suit shall be transferred to the Court of Civil Judge (Senior Division) Khurda then not only it will be convenient to both the parties but also it will be in the interest of justice. Accord¬ingly, he states that petitioner shall not feel aggrieved if the case shall be transferred to the file of Civil Judge (Senior Division), Khurda. Learned counsel for the opposite party does not agree to that proposal and relying on the case of Dr. Subram¬aniam Swamy v. Ramakrishna Hegde, AIR 1990 S.C. 113 , argues that inconvenience of a party should not be the sine qua non to pass an order of transfer when plaintiff has chosen one of the two Courts which has jurisdiction to decide the case. On a perusal of that citation, this Court finds that Apex Court has propounded that- “... The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one Court has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular Court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. The Parliament has, therefore, invested this Court with the discretion to transfer the case from one Court to another if that is considered expedient to meet the ends of justice. Words of wide amplitude - for the ends of justice have been advisedly used to leave the matter to the discretion of the apex Court as it is not possible to conceive of all situations requiring or justifying the exer¬cise of power. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner’s plea for the transfer of the case must be tested on this touchstone.” 6. It appears from the above quoted ratio that the ques¬tion of expediency would depend on the facts and circumstances of each case and that expediency should be considered in the context of meeting the ends of justice. 7. In the present case, plaintiff is an old woman who has lost one of his earning sons and the defendant Nos.6 and 7 as the wife (widow) and minor child have lost her husband and father respectively, the sole bread earner to them. When the plaintiff has advanced her old age to resist to the prayer for transfer of the case, the defendants had advanced their young and delicate age in support of their prayer for transfer of the suit. In that respect, this Court finds that contention of both the parties are evenly poised. 8. In course of hearing, learned counsel for the plain¬tiff-opposite party states that the place of residence of the plaintiff is 7 K.Ms away from Khandapada and about 30 K.Ms away from Nayagarh i.e., the place where the suit is pending. He does not dispute to the fact that the distance between her place of stay and Khurda is about 50 K.Ms and well connected with the P.W.D. road and conveyance. He does not dispute to the fact that the distance between her place of stay and Khurda is about 50 K.Ms and well connected with the P.W.D. road and conveyance. Under such circumstance, this Court finds that in spite of her old age, the plaintiffs has to travel a distance of 30 K.Ms i.e., to Nayagarh to prosecute her claim in the suit. Travelling a further distance of 20 K.Ms will not put any impediment to her. On the other hand, the place of residence of the petitioners at Balkatti is undoubtedly at a much higher distance from Nayagarh than Khurda. Nonetheless petitioners have to cover a distance for appearance in the Court either at Nayagarh or Khurda. If the aforesaid circumstance, would be visualised with due reference to the age and the contention of the parties, then it appears to this Court that the ratio of the Supreme Court does not stand on the way for transfer of the suit from Nayagarh to Khurda. In that respect not only equi-equity is granted to both parties, but also the threat perception in the mind of the young widow is averted. 9. For the reasons indicated above, the application under Section 24, C.P.C. is allowed with a direction for transfer of Title Suit No.54 of 2002 of the Court of Civil Judge (Senior Division), Nayagarh to the Court of Civil Judge (Senior Division) Khurda. This order be implemented by the Courts below within a period of four weeks inasmuch as learned counsel for the peti¬tioners undertakes to produce a copy of this order in the Court below within a period of two weeks. To save the proceeding from delay, both the parties are directed to appear in the Court of Civil Judge (Senior Division) at Khurda on 5th of May, 2003. In view of the above order, neither party shall be entitled to fresh or further notice from the Court of Civil Judge (Senior Division) at Khurda. Application allowed.