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2014 DIGILAW 211 (ORI)

Brajabandhu Mishra v. Gopikrushna Panda

2014-03-28

C.R.DASH

body2014
JUDGMENT C.R. DASH, J. : The petitioner, who is the sole defendant in Civil Suit No.31 of 2009 pending in the Court of learned Civil Judge (Sr. Division), Phulbani, has filed this petition under Section 24 of the Code of Civil Procedure, 1908 seeking transfer of the aforesaid suit from Phulbani to the Court of Civil Judge (Sr. Division), Bhubaneswar on the sole ground that he is suffering from severe Lumbar Spondylosis and Sciatica Syndrome and has been advised not to take long journey. 2.Learned counsel for the opposite party (plaintiff in the Court below) objecting to the prayer of the petitioner for transfer on the sole ground of health only, submits that the suit cannot be transferred from phulbani to Bhubaneswar for the convenience of the defendant especially when the plaintiff has the choice of the forum so long as the suit is not subject to the defect of local jurisdiction. 3.Learned counsel for the petitioner relies on the case of the Karnataka High Court in Mrs. Noreen R. Srikantaiah v. L. Dasarath Ramaiah, Gulbarga and another, A.I.R. 1985 KARNATAKA 208 to substantiate his contention to the effect that in the said case, on health ground of the petitioner, transfer of case from Gulbarga to Bangalore was allowed. Learned counsel for the opposite party on the other hand oppugns the submission of learned counsel for the petitioner on the ground that the ratio in the aforesaid case does not apply to the fact of the present case, in as much as, the petitioner in that case was a destitute lady and the ratio in that case relates to the question whether the Tribunal constituted by the State Government under Section 110 of the Motor Vehicles Act, 1939 is a Court subordinate to the High Court so as to attract the general power of transfer under Section 24 of the Civil Procedure Code. 4.Perusal of the aforesaid case of Karnataka High Court shows that Hon’ble Karnataka High Court has chiefly addressed the question as to whether the Tribunal constituted under the Motor Vehicles Act is a Civil Court for the purpose of Section 24 of the C.P.C. Though transfer of case from Gulbarga to Bangalore has been allowed, there is no discussion in the judgment about the reason of transfer to be the ill health of the petitioner except a passing remark about the submission of the counsel in that regard in paragraph-3 of the judgment. In view of such fact, I do not feel persuaded to accept the contention raised by learned counsel for the petitioner relaying on the aforesaid decision of the Karnataka High Court. 5.In the present case, the ground of transfer is health condition of the petitioner. This Court, in the case of Om Prakash Agarwala v. Berhampur Municipality, 92 (2001) C.L.T. 26, has negatived the prayer of transfer on the ground of chronic heart ailment of the petitioner and has held that the petitioner in such a case can appoint a Power of Attorney Holder to look after the case and he can be examined by the Commission on a petition, if such an occasion arises. While ruling so, this Court has held that while considering the convenience of one party, the other party should not be put to inconvenience. 6.In the case of Benudhar Swain and others v. Nilamani Swain and another, 2005 (II) OLR 509 , transfer of case under Section 24 of the C.P.C. was sought for from the Court of Civil Judge (Sr. Division), Puri to the Court of Civil Judge (Sr. Division), Angul on the ground that bulk of properties are situated at Angul and the petitioners being old retired persons, it is inconvenient on their part to travel to Puri and contest the lis. This Court relying on Om Prakash Agarwala’s case (supra) negatived the prayer for transfer on the ground that only to suit the convenience of a party, the other party should not be put to inconvenience. It was further held that the Court, while considering a petition for transfer, should always keep in mind that the plaintiff has the choice of his forum so long as the suit is not subject to the defect of want of local jurisdiction. It was further held that the Court, while considering a petition for transfer, should always keep in mind that the plaintiff has the choice of his forum so long as the suit is not subject to the defect of want of local jurisdiction. Regarding inability of a party to travel to the Court for adducing his evidence, this Court further held that such a person can be examined on Commission, if so required. 7.Taking into consideration the law on the subject, as discussed supra, I do not think it to be a fit case to allow transfer of the suit from the Court of Civil Judge (Sr. Division), Phulbani to the Court of Civil Judge (Sr. Division), Bhubaneswar. However, the suit being of the year 2009, learned Civil Judge (Sr. Division), Phulbani is directed to conclude the trial in the suit as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order, provided the defendant co-operates. The T.R.P. (C) is accordingly disposed of. TRP (C) disposed of.