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2003 DIGILAW 329 (ORI)

Anima Das v. State of Orissa

2003-05-01

P.K.TRIPATHY

body2003
ORDER 1.5.2003 — Heard. 2. In this application under Section 24, Code of Civil Procedure, 1908 (in short ‘the Code’) petitioner seeks for trans¬fer of Civil Proceeding No.124 of 2002 pending in the Court of Judge, Family Court, Cuttack to the Court at Jaleswar or Bala¬sore. In course of argument, learned counsel for the petitioner states that there is no Court of competent jurisdiction at Jales¬war and therefore petitioner prays for transfer of the said proceeding to the Court of Civil Judge (Sr. Division) at Bala¬sore. 3. Relationship between the parties, i.e., petitioner and opposite party No.2 is not in dispute. According to that, peti¬tioner is the wife and opposite party No.2 is the husband. 4. The opposite party No.2 has filed Civil Proceeding No.124 of 2002 in the Court of Judge, Family Court, Cuttack seeking the relief of a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (in short ‘the Act’). Petitioner has stated that she is still in her in-law’s house staying at the native place of the opposite party No.2 along with the other family members of the opposite party No.2 and opposite party No.2 having developed weakness towards a lady co-worker working in the same establishment at Bhubaneswar, insisted her to consent for a mutual decree of divorce and when she refused he has filed the Civil Proceeding at Cuttack seeking the prayer of divorce. She has stated that a minor son aged about 2 years born out of the wedlock is under her care and protection, and it will not be convenient on her part to travel the distance from Batagram in Balasore to Cuttack to participate in the matrimonial proceeding on each date. She has also stated that her husband is the only bread earner of her family and to fight out the litigation against him she has no independent source of income and it will be against the interest of justice if she will be called upon to fight the litigation at Cuttack. Accordingly, she has prayed for transfer of the above noted Civil Proceeding. The aforesaid allegations and assertion of the petitioner are supported by her affidavit. No counter affidavit has been filed by the opposite party No.2 nor he has sought for time to file any such counter affidavit or show cause. 4. Accordingly, she has prayed for transfer of the above noted Civil Proceeding. The aforesaid allegations and assertion of the petitioner are supported by her affidavit. No counter affidavit has been filed by the opposite party No.2 nor he has sought for time to file any such counter affidavit or show cause. 4. In the matter relating to transfer of suit, appeal or other proceedings Section 24 of the Code imposes no restriction on invoking that provision. In other words, wide power has been conferred on the High Courts and Courts of District Judges to consider the matter relating to transfer of cases of the above categories. Therefore, such power is to be exercised with reason¬ableness and keeping in view the interest of justice because those are the two dominant factors which should guide the Courts to determine whether a case should be transferred within its jurisdiction from one competent Court of pecuniary jurisdiction to another competent Court having such pecuniary jurisdiction. Cases transferred under Section 24 of the Code provides exception to the procedural law that a Court having territorial jurisdic¬tion can only try a suit. In other words, a competent Court of pecuniary jurisdiction even if having no territorial jurisdiction can try a suit or hear an appeal or deal with and dispose of other proceedings if transferred to that Court and such disposal cannot be regarded as without jurisdiction. 5. That being the position of law, considering the afore¬said contention of the petitioner which is not disputed or con¬troverted by opposite party No.2, this Court finds it just and proper to transfer the civil proceeding from the Court of Judge, Family Court, Cuttack to the Court of Civil Judge (Sr. Division), at Balasore, because the transferee Court comes within the terri¬torial jurisdiction of the native place of both the parties and the marriage between the parties, as stated, was solemnised there. Accordingly, the Judge, Family Court, Cuttack is directed to transfer the civil proceeding No.124 of 2002 to the Court of Civil Judge (Sr. Division), Balasore within a period of two weeks from the date of receipt of a copy of this order. 6. Opposite party No.2 apprehends that taking advantage of the aforesaid order of transfer of the case, petitioner may try to linger the proceeding at Balasore so as to cause harassment to him. Division), Balasore within a period of two weeks from the date of receipt of a copy of this order. 6. Opposite party No.2 apprehends that taking advantage of the aforesaid order of transfer of the case, petitioner may try to linger the proceeding at Balasore so as to cause harassment to him. Thus, it is observed that in the event of any such act or attempt by the petitioner to delay the disposal of the proceeding at Balasore, opposite party No.2 shall be at liberty to move application for transfer of the said proceeding from that Court and if any such application shall be moved, that be considered appropriately and in accordance with law. The application u/s 24, CPC is allowed accordingly. Application allowed.