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2008 DIGILAW 1443 (RAJ)

Saraswati Devi v. Kailash Chand Jain

2008-05-22

DINESH MAHESHWARI

body2008
Honble MAHESHWARI, J.–By way of this transfer petition, the defendant-petitioner seeks transfer of civil suit for perpetual injunction as filed by the plaintiff-non-petitioner (C.O. No. 85/2004 (56/2005)] from the Court of Additional Civil Judge (Senior Division), Jalore to the Court of Civil Judge (Senior Division), Churu. (2). The petitioner has averred in the transfer petition that she is 77 years old widowed infirm lady short of sight; that because of threats and harassments by her alleged adopted son (the non- petitioner) and his natural father (brother of the petitioners deceased husband) and for no source of maintenance being available, leaving her native place of Jalore she is residing with her brothers at Sardar Shahar District Churu; that she has no natural born son and her two married daughters are living at Chennai and Jaipur; that her husbands brother, taking undue advantage of her helplessness and in a deceitful manner, got executed a document as if his natural born son Kailash Chand (the non-petitioner) was taken in adoption by the petitioner; that her husbands brother and his son have sold one house left by her husband and in order to deprive her of the remaining house situated at Pura Mohalla (Jalore) a civil suit has been filed that is pending in the Court of Additional Civil Judge (Senior Division), Jalore (C.O. No. 56/2005). (3). The petitioner has prayed for transfer of the said suit pending in the Court of Additional Civil Judge (Senior Division), Jalore to the Court of Civil Judge (Senior Division), Churu on the grounds that she is old, sick, and infirm and is living at Sardar Shahar, Churu about 500 Kms. (3). The petitioner has prayed for transfer of the said suit pending in the Court of Additional Civil Judge (Senior Division), Jalore to the Court of Civil Judge (Senior Division), Churu on the grounds that she is old, sick, and infirm and is living at Sardar Shahar, Churu about 500 Kms. from the place of trial; that because of regular threats extended by the plaintiff-non- petitioner and his father to the relatives, brothers and sons-in- law of the petitioner of causing physical harm and getting them entangled in criminal cases, the petitioner is not in a position to get the suit conducted even through her close relatives as nobody was prepared to go to Jalore and to land in trouble; that because of such threats extended by the non-petitioner and his father, the petitioner has made several complaints and even in relation to the proceedings against them under Sections 107, 116(3) Cr.P.C., she is finding herself unable to prosecute; that the non-petitioner and his father are now carrying serious enmity and have openly extended threats to kill; that the non-petitioner and his father are influential persons and, therefore, it is not possible for the petitioner to effectively participate in the proceedings in the said suit; and that the non-petitioner is presently living at Calcutta and trial of the case at Churu would be rather more convenient for him. (4). A reply to the transfer petition has been filed by the plaintiff-non-petitioner disputing the allegations as levelled in the petition and asserting that the petitioner had voluntarily and of her own accord taken the non-petitioner in adoption; that the non-petitioner got married as the adopted son of the petitioner and even the property of the wife of the non- petitioner was handed over to the petitioner. It has been alleged that the petitioners brothers are influential persons in Churu District and are involved in active politics and they have prevailed upon the petitioner and taken her along; and that the petitioner is residing with her daughters at Jaipur or Chennai and had been visiting Jalore with her daughters. The non- petitioner has denied the averments about the petitioners sickness and infirmity and has also taken the averments that the joint property was sold as per the wishes of the petitioner and the sale consideration was received by the petitioner and the amount was handed over to her brothers. (5). The non- petitioner has denied the averments about the petitioners sickness and infirmity and has also taken the averments that the joint property was sold as per the wishes of the petitioner and the sale consideration was received by the petitioner and the amount was handed over to her brothers. (5). While leveling counter allegations particularly against the brothers of the petitioner, the non-petitioner has asserted that they had been extending threats of causing physical harm to the non-petitioner. It has also been pointed out that the non- petitioner is presently engaged in service at Cochin and is her in a position to get the matter conducted at Churu particularly when the relevant witnesses are at Jalore. The non-petitioner has also filed an affidavit of one Smt. Shankutala Jain said to be residing at Jaipur and being a cousin of the petitioner who has asserted the petitioner residing largely at Jaipur and carrying out all her work properly and his brothers having substantial influence in Sardar Shahar. (6). While pressing on the grounds taken in the transfer petition, learned counsel Mr. B.M. Bhojak has strenuously contended that for convenience of old infirm lady and for the threat perception from the non-petitioner and his family the suit in question deserves to be transferred from Jalore to Churu. Learned counsel further submitted that the plaintiff himself was not residing at Jalore and when he would alleged some threat at Churu, though such averments are not admitted by the petitioner, yet in the interest of justice, the case could be transferred to Bikaner if not to Churu. Learned counsel has referred to and relied upon the decisions in Reena Mehra vs. Rohit Rai Mehra and another : 2003 DNJ (SC) 218 and Bhanu Kumari (Smt.) vs. Jitendra Singh and others : 2007 (2) RLW 1077. Learned counsel for the non-petitioner Mr. Amit Mehta has strongly opposed with the submission that the petitioner is residing at Jaipur; that the allegations about threat are vague and uncertain and no specific instance has been spelt out; and no case for transfer is made out merely on sentimental grounds as suggested by the petitioner. Learned counsel for the non-petitioner Mr. Amit Mehta has strongly opposed with the submission that the petitioner is residing at Jaipur; that the allegations about threat are vague and uncertain and no specific instance has been spelt out; and no case for transfer is made out merely on sentimental grounds as suggested by the petitioner. Learned counsel submitted that the cause of action for the suit in question arose at Jalore, the property in question is also situated at Jalore, all the relevant witnesses are at Jalore, and then, the petitioner has also taken a counter-claim asserting her desire to reside in the property in dispute situated at Jalore hence, the case deserves to be tried in the competent court at Jalore only. Learned counsel Mr. B.M. Bhojak has rejoined with the submissions that the petitioner is residing at Sardar Shahar and is regularly under treatment and has shown photostat of the pensioners medical diary of the petitioner. Learned counsel submitted that the petitioner is of course desirous of living at Jalore but had to leave for the adverse circumstances created by the non-petitioner and his family. As directed, learned counsel has placed for perusal photostat of the plaint and written statement with counter claim. (7). Having given a thoughtful consideration to the rival submissions and having perused the relevant material including the copy of plaint and written statement with counter claim, this Court is unable to find any reason to consider transfer of the civil suit for perpetual injunction as filed by the non- petitioner. (8). The averments in the plaint indicate assertion of the plaintiff of himself having willingly been adopted by the petitioner but herself having now turned against at the instance of her brothers. It has been alleged that the petitioner intends to sell the property described in paragraph 16 of the plaint; and the brother of the petitioner on her behalf extended threat in that regard. The plaintiff has prayed for a decree for perpetual injunction that the petitioner be restrained from alienating in any manner the property stated in paragraph-16 of the plaint and not to interfere with the plaintiffs possession and not to remove the moveables of the plaintiffs wife as lying in the disputed house. The plaintiff has prayed for a decree for perpetual injunction that the petitioner be restrained from alienating in any manner the property stated in paragraph-16 of the plaint and not to interfere with the plaintiffs possession and not to remove the moveables of the plaintiffs wife as lying in the disputed house. Perusal of the written statement filed by the petitioner, on the other hand, makes out that she has challenged the legality and validity of the adoption deed and has also averred that the non-petitioner has never taken care of his adoptive mother, i.e. herself and on the contrary, has regularly extended threats to her brothers and daughters and hurled abuses after execution of the adoption deed and her demanding the money received upon selling of Rajendra Nagar Property. It has been alleged that the petitioner was never permitted to live peacefully at Jalore and hence she was required to live at Jaipur with her daughter or at Sardar Shahar with her brothers. It has been averred that the petitioner wants to live peacefully in the remaining property of her husband but is apprehensive of the plaintiff and his father. The petitioner has also pointed out her having made complaints against the plaintiff and his father. The petitioner has also made a counter claim for perpetual injunction that the plaintiff should not interfere in the peaceful use and occupation of the disputed house by herself and in the entry of her daughters and brothers. (9). Having regard to the overall facts and circumstances of this case, the nature of dispute the parties are in, the allegation and counter-allegation as made by the parties in the pleadings as taken in the suit, without commenting on the merits of any such allegation, this Court is of opinion that if would not be in the interest of justice to transfer the suit in question to Churu as prayed in this transfer petition. (10). It is noticed that the petitioner put her appearance in the suit in question as back as on 22.9.2004 and on this very day filed her written statement and counter-claim. Issues were framed on 29.5.2007 and the matter was set down for plaintiffs evidence. This transfer petition has been filed thereafter, only on 12.9.2007. (10). It is noticed that the petitioner put her appearance in the suit in question as back as on 22.9.2004 and on this very day filed her written statement and counter-claim. Issues were framed on 29.5.2007 and the matter was set down for plaintiffs evidence. This transfer petition has been filed thereafter, only on 12.9.2007. Nothing specific has been stated if the petitioner was prevented from effectively participating in the proceedings for about three years of pendency of the suit before she has chosen to make the prayer for transfer of the suit by way of this petition nor any immediate cause with particulars has been stated wherefor it became necessary for the petitioner for seek transfer of the suit. (11). The petitioner has expressed her keenness to occupy the disputed property at Jalore and has even made counter claim in that regard. In view of the counter claim as taken by the petitioner, it appears rather more appropriate that the case is tried at Jalore only. So far any infirmity or disability of the petitioner is concerned, appropriate orders and directions for adequate opportunity of hearing to the petitioner and adequate safeguards could definitely be prayed before the Trial Court and it cannot be assumed that if such a request is made, the same would not receive due consideration by the Trial Court. (12). The principles emanating from the cited decisions are not of any doubt or dispute but then, each case has essentially been decided on its own facts. In the case of Reena Mehra (supra), totality of facts and circumstances were considered by the Honble Supreme Court while ordering transfer of suit pending in the Court of Civil Judge. Tis Hazari Courts, Delhi to the City Civil Court, Bombay after finding that the allegations indicate brother of the husband of the petitioner having extended threats which scared her to the extent that she left Delhi and was residing with her parents at Bombay. It was also found that several cases initiated by the petitioner against the respondent No.1 were pending at Bombay. In the totality of facts and circumstances, it was found that ends of justice would be served better if the suit at Delhi was transferred to Bombay. It was also found that several cases initiated by the petitioner against the respondent No.1 were pending at Bombay. In the totality of facts and circumstances, it was found that ends of justice would be served better if the suit at Delhi was transferred to Bombay. In the case of Bhanu Kumari (supra), this Court again considering the fact situation of the particular case at hands found it proper and in the interest of justice to direct transfer of suit from Alwar to Jaipur City. However, this Court pointed out that exercise of powers under Section 24 CPC is discretionary and it is to be seen from the allegations made whether any reasonable ground for transfer of the case was made out and that the jurisdiction under this Section is to be exercised with care and caution. In the fact situation of the present case particularly looking at the pleadings of the parties before the Trial Court and the nature of litigation, this Court does not find any likelihood that the petitioner would be denied fair opportunity of hearing in the suit even if it proceeds at Jalore nor it appears in the interest of justice that present suit in which the petitioner has already made a counter claim to reside at Jalore be transferred to any other place. (13). The petition for transfer is therefore, rejected.