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2014 DIGILAW 2901 (MAD)

Vijay Supriya v. R. Balasubramanian

2014-08-26

K.KALYANASUNDARAM

body2014
Judgment : 1. This petition is filed seeking transfer of H.M.O.P.No.42 of 2013 from the file of the Principal Sub-Judge, Chengalpattu, Kancheepuram District to the Principal Sub Judge, Thoothukudi, Thoothukudi District. 2. In the affidavit filed in support of the transfer petition, the petitioner has averred that the marriage between the petitioner and the first respondent was solemnized on 03.07.2011 at A.V.M. Saradhambal Thirumana Mandapam, G.S.T.Road, Guduvanjeri, Chennai, as per Hindu rites and customs. In the Wedlock, a son viz., Aadhav was born on 10.09.2012. The husband began to doubt her fidelity by alleging that the petitioner had illegal intimacy with the 2nd respondent and picked up quarrel frequently; that after she become pregnant, she had come to her parental home and thereafter her husband nor the relatives visited her. 3. It is further stated that on 24.02.2013, the petitioner had gone to her matrimonial home with her six months' old child, but she was not allowed to enter into the house; that thereafter her husband lodged a complaint with Maraimalai Nagar Police Station and in the enquiry her husband informed that he is initiated divorce proceedings against her. Hence the first respondent filed the H.M.O.P., Seeking dissolution of the marriage before the Sub Court, Chengalpattu. 4. The petitioner is seeking transfer on the ground that she is residing at Alwar Thirunagari in Thoothukudi District and she is dependent on her parents for her lively hood; that she has to travel nearly 600 kms., to attend the Court proceedings and she being a lady accompanying of her family members would cause great prejudice and she is also having 10 months old child and she cannot travel such a long distance. Further it is stated that there is a threat for her and her child at Chengalpattu. 5. Resisting the application, the respondent has filed counter mainly contending that the transfer petition filed before this Court is not maintainable in law and in the counter the 1st respondent has denied the allegations made in the transfer petition. 6. Heard Mr.A.Thiruvadikumar, learned counsel for the petitioner and Mr.M.Balasubramanian, learned counsel for the first respondent. 7. The learned counsel for the petitioner has reiterated the grounds for transfer of the case contending that the petitioner is seeking transfer only on the ground of inconvenience to the petitioner to defend the case before the Sub Court, Chengalpattu. 6. Heard Mr.A.Thiruvadikumar, learned counsel for the petitioner and Mr.M.Balasubramanian, learned counsel for the first respondent. 7. The learned counsel for the petitioner has reiterated the grounds for transfer of the case contending that the petitioner is seeking transfer only on the ground of inconvenience to the petitioner to defend the case before the Sub Court, Chengalpattu. The learned counsel further submitted that part of cause of action had arisen within the jurisdiction of Sub Court, Thoothukudi. Moreover, the petitioner seeks transfer of the case on convenience and therefore, the petition is maintainable. The learned counsel has relied upon the Judgment of this Court reported in 2006 (4) CTC 835 (Usha @ Ramalakshmi and another Vs. P.Shanmugam) for the proposition that after Amendment of the Hindu Marriage Act, 2003, as per Section 19 of the Act, the petitioner/wife can file a petition with the Court within the jurisdiction she is residing at the time of filing the petition. The learned counsel also relied upon the Division Bench Judgment of this Court reported in 2008 (7) MLJ 1012 (E.Mary Oliviya Vs. E.Jsohua Milton). 8. The learned counsel for the respondent has submitted that there is no part of cause of action arisen within the jurisdiction of Thoothukudi and as per Sections 23 and 24 of Civil Procedure Code, the transfer petition is not maintainable before this Court. The learned counsel has relied upon the Judgment of Madhya Pradesh High Court reported in I (2013) DMC 24 (CN) (Shailey Madne Vs. Pankaj Kumar Madne) ; the Judgment of the Bombay High Court reported in I (1996) DMC 345 (Sau.Sangeeta Bajirao Suryawanshi Vs. Bajirao Bhimrao Suryawanshi); the Judgment of the Hon'ble Supreme Court reported in (2008) 9 SCC 648 (Durgesh Sharma Vs. Jayshree) ; 9. In the Division Bench Judgment of this Court reported in 2008 (7) MLJ 1012 (E.Mary Oliviya Vs. E.Jsohua Milton) in paragraph 42, it has been held as follows:- "42. From the above discussion and analysis of various, provisions and decisions of several Courts, including the Supreme Court, our conclusions are as follows: (1) Establishment of a Permanent Bench has the effect of bifurcation of the State into two for the purpose of territorial jurisdiction of the Madras High Court between the Principal Bench at Chennai and the Permanent Bench at Madurai. (2) The District Courts and all other Courts inferior to that of the District Courts are subordinate to Madras High Court irrespective of its place of sitting. (3) Appeal or Revision can be filed before the Principal Bench at Chennai or Permanent Bench at Madurai depending upon the situs of the Court against whose decision the Appeal or Revision is sought to be filed. An appeal or revision against the decision of a Court situate within the jurisdiction of the Principal Bench at Chennai has to be filed before the said, Principal Branch whereas the appeals and revisions arising from the orders of Courts coining within the districts earmarked for the permanent Bench at Madurai have to be filed at Madurai. (4) Writ petitions can be filed before the Principal Bench at Madras or Permanent Bench at Madurai depending upon the place where the cause of action has arisen. If the cause of action has arisen wholly within the jurisdiction of the Principal Bench or the Permanent Bench, obviously such writ petition can be filed only at the seat of the Principal Bench or of the Permanent Bench as the case may be. On the other hand, if the cause of action arises either wholly or in part within the areas allotted to the Principal Bench at Chennai and the Permanent Bench at Madurai, the writ petition can be filed at any of the places. (5) A proceeding for transfer under Sections 22 to 24 of the C.P.C., partakes the character of an original proceeding and can be filed before the Principal Bench or the Permanent Bench depending upon the "cause of action" or "the reason" for filing such transfer petition. In order to avoid any possible confusion in such matter relating to filing of transfer position, we make it clear that where a person seeks transfer of a case from a place to another place coming within the jurisdiction of one Bench, such transfer position has to be filed before the very same Bench. On the other hand, where transfer is sought from a Court coming within the jurisdiction of the other Bench, such transfer petition can be filed before either Bench, obviously depending upon the cause of action for such transfer petition and the convenience of the petitioner. On the other hand, where transfer is sought from a Court coming within the jurisdiction of the other Bench, such transfer petition can be filed before either Bench, obviously depending upon the cause of action for such transfer petition and the convenience of the petitioner. (6) The Honourable the Chief Justice has discretion to direct that any writ filed or pending before the Principal Bench or the Permanent Bench can be taken up for disposal before the Permanent Bench or the Principal Bench, as the case may be." 10. In 2006 (4) CTC 835 (Usha @ Ramalakshmi and another Vs. P.Shanmugam) . In that case, the wife filed petition for transfer of the case from Family Court, Coimbatore to Sub Court, Tuticorin on the ground of convenience, as she was presently residing in the house of her uncle The transfer petition was resisted on the ground that the Sub Court at Tuticorin lacks territorial jurisdiction and was not competent to hear the petition filed by the wife. This Court rejected the contention of the husband in view of the amendment of Section 19 of Hindu Marriage Act, by which the wife is permitted to file matrimonial case where she resides. 11. In the Judgment of the Bombay High Court reported in I (1996) DMC 345 (Sau.Sangeeta Bajirao Suryawanshi Vs. Bajirao Bhimrao Suryawanshi) the wife filed application seeking transfer of the case filed by her husband for divorce from III Additional District Judge, Bhopal, (Madhya Pradesh) to be tried along with the petition filed by her for restitution of conjugal rights before the Civil Judge, Senior Division, Ahmednagar. The High Court of Bombay considering Section 23(3) of the Civil Procedure Code held as follows:- 7. Section 23 of the Code prescribes a forum where the application for transfer has to be made. It would be appropriate to reproduce the section 23. It reads as under : "23. (1) Where the several courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court. (2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court. It reads as under : "23. (1) Where the several courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court. (2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court. (3) Where such courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate." 8. There is no dispute that sub-section (3) of section 23 of the Code would attract in the present case. The question, therefore, is whether the present application is competent in this Court to invoke power to transfer the suit which is pending in the Court of the III Additional District Judge, Bhopal which is subordinate to the High Court of Madhya Pradesh. 9. At the outset, it may be stated that sub-section (3) as reproduced above, requires no interpretation. It's plain language shows that the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate. In other words, it is clear from the provision of sub-section (3) of section 23 that the application is required to be made to the High Court within local limits of whose jurisdiction the subordinate Court is situate in which the suit which is sought to be transferred is instituted. This view is clearly supported by two of the decisions in cases of Jagatguru Shri Shankaracharya v. Ramji Tripathi, and Smt. Sunita Bali v. Ashok Bali, . In Jagatguru Shri Shankaracharya's case it has been observed : "Where a suit is sought to be transferred to a Court subordinate to another High Court, the application for transfer has to be made in the High Court within whose jurisdiction the suit is pending." There is, therefore, no substance in the submission of Shri Gatne, learned Counsel that the provision of sub-section (3) of section 23 of the Code requires a different interpretation by applying the Doctrine "Presumption Against Ousting Established Jurisdiction." 12. The same view was taken by Single Judge of Madhya Pradesh High Court in I (2013) DMC 24 (CN) (Shailey Madne Vs. Pankaj Kumar Madne). 13. The same view was taken by Single Judge of Madhya Pradesh High Court in I (2013) DMC 24 (CN) (Shailey Madne Vs. Pankaj Kumar Madne). 13. In light of the Judgment of the Division Bench of this Court reported in 2008 (7) MLJ 1012 with great respect, I am not able to accept the view taken in the Judgment reported in I (2013) DMC 24 (CN). 14. In the Judgment reported in (2008) 9 SCC 648 the Apex Court while considering Sections 23 to 25 of Code of Civil Procedure has held that the High Court has no power, authority or jurisdiction to transfer a case, appeal or other proceeding pending in a court subordinate to it, to any court subordinate to another High Court in purported exercise of power under Section 23(3) CPC and it is only the Apex Court can exercise the said authority under Section 25 CPC. The Judgment of the Hon'ble Supreme Court reported in ( (2008) 9 SCC 648 ) and the Judgment of the Bombay High Court reported in I (1996) DMC 345 are not applicable to the facts of the present case. 15 In the case on hand, the petitioner has alleged that she was chased out of the matrimonial house and she is residing with her parents at Alwar Thirunagari in Thoothukudi District. The petitioner is seeking transfer of the case on the ground that she could not travel for 600 Kms., along with a 10 months' old child and the family members could not accompany the petitioner, which would cause great prejudice to the petitioner as well as her family. The petitioner seeks transfer on the main ground of convenience of the petitioner and hence, the judgment of Division Bench Judgment of this Court reported in 2008 (7) MLJ 1012 is squarely applicable to the facts of the present case. Further, the petitioner has made out the case of transfer. 16. In view of my findings supra, the transfer petition is allowed and the H.M.O.P.No.42 of 2013 pending on the file of the learned Principal Sub-Judge, Chengalpattu, Kancheepuram District is ordered to be transferred to the file of the learned Principal Subordinate Judge, Thoothukudi, Thoothukudi District. Consequently, connected miscellaneous petition is closed. However, there shall be no order as to costs.