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2010 DIGILAW 691 (KAR)

M. v. Rekha VS Sathya alias Suraj

2010-06-07

S.ABDUL NAZEER

body2010
Judgment :- 1. Abdul Nazeer, Judge: Smt. M.V. Rekha has filed this civil petition under Section 24 of the Code of Civil Procedure seeking transfer of M.C.No.159/2009 filed by the respondent against her on the file of the Principal Family Court, Mysore to the Court of I Additional Family Judge at Bangalore. 2. It is the case of the petitioner that she was married to the respondent on 2.12.1996 at Bangalore. After her marriage, she was residing in her matrimonial home at Mysore along with the respondent. As the days passed, the respondent started harassing her without any justification. Therefore, she was forced to lodge a complaint against the respondent under Section 498-A read with Section 506 of the Indian Penal Code, which was registered as Crime No.40/2005 in the Mahila Police Station, Mysore. The elders of the family compromised the matter and the respondent shifted his residence to Bangalore. Even at Bangalore, the respondent started harassing her on one pretext or the other. He is having illegal relationship with another woman. Without having any other alternative, she filed the petition for dissolution of the marriage under Section 13 (1)(ia) of the Hindu Marriage Act in M.C.No.559/2009 before the First Additional Family Judge, Bangalore. 3. After service of summons in the said case, the respondent has filed the petition under Section 9 of the Hindu Marriage Act in M.C.No.159/2009 on the file of the Principal Family Judge at Mysore seeking restitution of conjugal rights. It is further contended that she is residing at Bangalore and is working in a private company on a monthly salary of Rs.3,000/-. She cannot travel to Mysore to attend the case filed by the respondent. It is further contended that the respondent has threatened that if she attends the Court at Mysore, he will make her life miserable. Therefore, the case filed by the respondent requires to be transferred to a Court at Bangalore. 4. Respondent has not filed statement of objections to the petition. 5. Learned Counsel for the petitioner would contend that after the marriage, the respondent has been harassing the petitioner on one pretext or the other. Because of the harassment, the petitioner had to come to her parents house at Bangalore. She has sought dissolution of her marriage with the respondent on the ground of cruelty in M.C.No.559/2009, which is pending before the First Additional Family Judge, Bangalore. Because of the harassment, the petitioner had to come to her parents house at Bangalore. She has sought dissolution of her marriage with the respondent on the ground of cruelty in M.C.No.559/2009, which is pending before the First Additional Family Judge, Bangalore. The respondent has filed a petition in M.C.No.159/2009 against the petitioner seeking restitution of conjugal rights after service of notice in the case filed by her for divorce. In order to maintain herself and her children, she is working in a private company on a monthly salary of Rs.3,000/-. She cannot travel to Mysore to attend the case filed by the respondent. She was threatened by her husband that if she comes to Mysore, he will make her life miserable. It is argued that in both the cases, the questions of law and fact are common and interdependent. They should be tried together in order to avoid conflict of decisions. Therefore, the case filed by the respondent against the petitioner requires to be transferred to Bangalore. 6. On the other hand, learned Counsel appearing for the respondent submitted that the cause of action for filing of M.C.No.159/2009 has arisen within the territorial jurisdiction of the Family Court at Mysore. The said case cannot be transferred to a Family Court at Bangalore because the Family Court at Bangalore is not competent to try the same. It is further argued that the case cannot be transferred on the grounds urged in the petition. He prays for dismissal of the petition. 7. Having regard to the contentions urged, the question for consideration is whether the case field by the respondent in M.C.No.159/2009 under Section 9 of the Hindu Marriage Act requires to be transferred to the Court of I Additional Family Judge, Bangalore? 8. Section 24 of the Code of Civil Procedure provides for the general power of transfer and withdrawal of the suits, appeal or other proceedings. The relevant provision is subsection (1)(b) of Section 24, which is as under: “ Section 24. General Power of transfer and withdrawal. 8. Section 24 of the Code of Civil Procedure provides for the general power of transfer and withdrawal of the suits, appeal or other proceedings. The relevant provision is subsection (1)(b) of Section 24, which is as under: “ Section 24. General Power of transfer and withdrawal. – (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage (a) XXXXX XXXXX XXXXX (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.” 9. The section confers general power to transfer, withdraw and transfer suits, appeals or other proceedings at any stage on the application of a party. The power of the High Court and District Judge are concurrent. The Court may also exercise the power suo motu. The section postulates that the Court to which the suit or appeal or other proceeding is transferred should be competent to try or dispose of the same. The contention of the learned Counsel for the respondent is that the cause of action for filing for M.C.No. 159/2009 has accrued at Mysore and that the Family Court at Bangalore is not competent to try the said case. In other words, the Family Court at Bangalore has no territorial jurisdiction to try the case. Therefore, the question for consideration is whether under Section 24 of the Code of Civil Procedure, a case can be transferred from a Court where it was instituted and competent to try and has territorial jurisdiction to try the case, to some other Court, which does not have territorial jurisdiction. The cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. The point involved in this case is a pure question of law and its decision depends upon the construction of the words ‘competent to try’ occurring in Section 24(1) of the Code of Civil Procedure. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. The point involved in this case is a pure question of law and its decision depends upon the construction of the words ‘competent to try’ occurring in Section 24(1) of the Code of Civil Procedure. 10. If the words contained in Section 24 are to be taken literally, it might be open to argument that the word ‘competency’ includes both pecuniary and territorial jurisdiction. It is necessary that the Court to which the case is transferred must have territorial jurisdiction, would make it impossible for a High Court to transfer a case pending in the Court of a District Judge to that of a District Judge of another District. Keeping this in mind, the Courts have interpreted words ‘competent to try’ occurring in Section 24(1) of the CPC referring only to pecuniary jurisdiction. In Ram Das and Another Vs. Habib Ullah, AIR 1933 Allahabad 178, a Division Bench of the Allahabad High Court held that a Court is not competent to try and dispose of a suit if it does not possess both pecuniary and territorial jurisdiction to entertain it. This decision was rendered by the Division Bench on 16.4.1931. However, by a subsequent decision in Kishore Lal Vs Balkishan, AIR 1932 Allahabad 660, (decided on 16.6.1932), Chief Justice Sulaiman gave reasons for reconsidering the previous view and holding that territorial jurisdiction does not come within the meaning of the words ‘competent to try’ occurring in Section 24 of the CPC and that they must refer only to pecuniary jurisdiction. This decision of the Allahabad High Court has been consistently followed by various High Courts. It is to be noted here that the territorial jurisdiction can be waived because it does not go to the root of the case whereas competence of the Court to try the case goes to the very root of the jurisdiction and refers to the inherent lack of jurisdiction by the Court. In this connection, it is relevant to note the observations of the Apex Court in Hira Lal Patni Vs. Kalinath, AIR 1962 SC 199 , which is as under: “It is well-settled that the objection as to the local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try case. Kalinath, AIR 1962 SC 199 , which is as under: “It is well-settled that the objection as to the local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try case. The competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to local jurisdiction of a Court can be waived.” This judgment of the Apex Court supports the view that the competence to try a case refers to the inherent jurisdiction to try and not for territorial jurisdiction. 11. A Full Bench of the Madras High Court in P.Madhavan Unni Vs. M.Jayapandia Nadar, AIR 1973 Madras 2, was considering a similar question. It has been held as under: “Next, to restrict the meaning of the words competent to try or dispose of the same used in Section 24(1)(b)(ii), Civil Procedure Code to territorial jurisdiction over the property of the judgment debtor or the residence qualification of the judgment-debtor would lead to grave anomalies and failure of justice. Thus, if the presiding officer of the executing Court happens to the judgment debtor himself and owns the property in his jurisdiction which is being proceeded against, or if he has taken a prejudicial attitude to one party, and that is urged as a ground for transfer of the execution proceeding, it will be impossible to transfer the execution proceeding to any other subordinate Court, if the restricted meaning above sought to be given to the word competency is to be accepted. It appears to us that the word competency used in the above Section cannot be used to restrict the power of the District Court or the High Court under Section 24, Civil Procedure Code to transfer the execution proceeding only to a Court which has territorial competency, or jurisdiction over the place where the judgment-debtor resides or works for gain. It has to be given a sufficiently wide interpretation to include each and every Court within the jurisdiction of the superior Court, empowered to deal with such execution application”. We respectfully agree with the above observation of the learned Judge. It has to be given a sufficiently wide interpretation to include each and every Court within the jurisdiction of the superior Court, empowered to deal with such execution application”. We respectfully agree with the above observation of the learned Judge. We consider that the power of transfer, under Section 24 of the Code of a suit, appeal or other proceedings by a High Court or a District Court to a Court within their respective remedy and no fetters should be placed upon it on grounds of want of territorial jurisdiction of the transferee Court.” 12. A Division Bench of Rajasthan High Court in M/s. Maliram Nemichand Jain Vs. Rajasthan Financial Corporation and Another, AIR 1974 Rajasthan 204 has held that while interpreting the provision of law, the Court has to take into consideration all the circumstances and if by giving a narrow meaning to the word ‘competent’ in Section 24, an impossible situation is created, then the Court shall have to interpret the word in such a way that it may not create bottlenecks for the Court to function under certain circumstances. The Court further held that the District Judge presiding over the District Court of Jaipur District was competent to deal with the execution proceedings in this case when they were duly transferred under the orders of the High Court. 13. In Mulraj Doshi Vs. Gangadhar Singhania, AIR 1982 Orissa 191, the Orissa High Court has held that the words ‘competent to try’ included in Section 24 of the CPC refers to pecuniary jurisdiction and territorial jurisdiction. 14. It is clear from the above discussion that the words ‘competent to try’ included in Section 24(1) of the Code of Civil Procedure does not refer to territorial jurisdiction. The High Court or the District Judge can transfer a case under this provision to a Court, which need not have territorial jurisdiction over the subject-matter of the litigation if the transferee Court is otherwise competent to try it. If that is so, there is no bar for this Court to transfer the case filed by the respondent seeking restitution of conjugal rights in M.C.No.159/2009 pending on the file of the Principal Family Court at Mysore to the Court of First Additional Family Judge, Bangalore. 15. If that is so, there is no bar for this Court to transfer the case filed by the respondent seeking restitution of conjugal rights in M.C.No.159/2009 pending on the file of the Principal Family Court at Mysore to the Court of First Additional Family Judge, Bangalore. 15. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that ends of justice demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the peal of transfer, the Courts have to take into consideration the economic soundness of either of the parties, the social strata of the spouses and behavioural pattern, their standard of life antecedent to marriage and subsequent thereon and the circumstances of either of the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Generally, it is the wife’s convenience which must be looked at while considering transfer. Further when two proceedings in different Courts which raise common question of fact and law and when the decisions are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions (See Smt.Nanda Kishori Vs. S.B. Shiva Prakash, AIR 1993 Karnataka 87, Sumita Singh Vs. Kumar Sanjay and Another, AIR 2002 SC 396 , and Smt. Vinayak Pujar, ILR 2007 Kar 4561. 16. In the instant case, the petitioner is residing at Bangalore with her parents. She has to support her two children. Therefore, she is working in a private company on a monthly salary of Rs.3,000/-. It is contended that the respondent is threatening her of dire consequences if she visits Mysore to pursue the case filed by him seeking restitution of conjugal rights. She does not have sufficient income to travel to Mysore to pursue the said case. The respondent is not giving any maintenance to the petitioner or to her children. He has not sought transfer of the case field by the petitioner for divorce at Bangalore to a Court at Mysore. He has to come to Bangalore to attend the said case. If the case filed by him is transferred to Bangalore and clubbed along with the case filed by the petitioner will not make any difference for him. He has not sought transfer of the case field by the petitioner for divorce at Bangalore to a Court at Mysore. He has to come to Bangalore to attend the said case. If the case filed by him is transferred to Bangalore and clubbed along with the case filed by the petitioner will not make any difference for him. Further, in the case filed by the petitioner for divorce, the question for consideration is whether the petitioner was treated with cruelty by the respondent. In the petition filed by the respondent seeking restitution of conjugal rights, the question is whether the petitioner has withdrawn form the company of the respondent without there being any sufficient cause. The decisions in both the cases are interdependent. Therefore, both the cases should be tried together so as to avoid multiplicity of trial of the same issues and to avoid conflict of decisions. In the light of the above discussions, I am of the view that the case filed by the respondent in M.C.No.159/2009 on the file of the Principal Family Court, Mysore requires to be transferred to the Court of First Additional Family Judge, Bangalore. 17. In the result, the civil petition succeeds and it is accordingly allowed. I direct the transfer of M.C.No.159/2009 pending on the file of the Principal Family Court, Mysore to the Court of I Additional Family Judge at Bangalore. I further direct the First Additional Family Judge at Bangalore to club both the cases, conduct joint trial and pass a common order. No costs.