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2015 DIGILAW 155 (HP)

Chamaru Ram v. Pushpa Devi

2015-03-09

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. Challenge in this Revision Petition under Section 115 of the Code of Civil Procedure (for short ‘Code’) has been laid to the order passed by the learned District Judge, Mandi, H.P. on 14.8.2014 whereby he allowed the application of the respondent for transferring of the case under Section 24 of the Code and transferred the same from the court of learned Civil Judge (Senior Division), Sarkaghat to the Court of learned Civil Judge (Senior Division), Court No.1, Mandi. 2. The key facts may be noticed. The petitioner filed a suit for declaration that the respondent is not his legally wedded wife and the sons of the respondent are not his sons. Further a declaration was sought to the effect that the entries showing the respondent as wife and sons of the petitioner be adjudged wrong and incorrect and lastly relief of permanent prohibitory injunction was claimed. 3. The defendant/respondent contested the suit by raising preliminary objections regarding jurisdiction of the Court at Sarkaghat to try and adjudicate the matter and it was alleged that it is the Court at Mandi, who alone has the jurisdiction to try and decide the present suit. It was also claimed that the defendant had filed an application under the provisions of Protection of Women from Domestic Violence Act against the petitioner which was pending disposal in the Court of learned Judicial Magistrate 1st Class, Court No.II, Mandi and interim maintenance of Rs.3000/- per month had been granted. Therefore, the suit being a malafide one ought to be dismissed. Other objections regarding cause of action, locus standi, valuation and the suit being bad for non-joinder and mis-joinder of necessary parties was also raised. 4. During the pendency of the suit, the respondent preferred an application under Section 24 of the Code as aforesaid. It was claimed that since the suit was governed by the provisions of Section 20 of CPC, therefore, it ought to have been instituted at the place where the defendant resides i.e. Mandi and the Court at Sarkaghat had no jurisdiction. It was further claimed that since the respondent was legally wedded wife of the petitioner and the children had been born out of such wedlock, therefore, entries in the Panchayat records to this effect were legal and correct and the suit had been filed just to harass the respondent. It was further claimed that since the respondent was legally wedded wife of the petitioner and the children had been born out of such wedlock, therefore, entries in the Panchayat records to this effect were legal and correct and the suit had been filed just to harass the respondent. The respondent also sought to take advantage of the orders passed by the learned Judicial Magistrate 1st Class, Court No. 1 Mandi awarding interim maintenance of Rs.3000/- to the respondent under the provisions of Protection of Women from Domestic Violence Act in support of her contention that she was legally wedded wife of the petitioner. Lastly, it was contended that the respondent was a poor lady and could not travel to Sarkaghat which was at a distance of more than 80 KMs from her residence and there was otherwise danger to the life of the applicant at the hands of the respondent as he had continuously been threatening the respondent. 5. In reply filed to this application, the petitioner reiterated that the entries made in the records of the Panchayat were wrong and, therefore, were required to be declared as null and void. Insofar as awarding of maintenance by the learned Judicial Magistrate 1st Class, Mandi is concerned, it was averred that the appeal against the said order was contemplated to be filed by the petitioner. Lastly, it was denied that the respondent was a poor lady and could not afford to contest the litigation at Sarkaghat. 6. The learned District Judge, allowed this application and ordering the transfer of the proceedings as aforesaid. 7. Aggrieved thereby, the petitioner approached this Court by contending that while passing the impugned order, the learned Court below has acted with material irregularity and illegality thereby vitiating the order. Section 24 of the Code, reads thus : “24. 6. The learned District Judge, allowed this application and ordering the transfer of the proceedings as aforesaid. 7. Aggrieved thereby, the petitioner approached this Court by contending that while passing the impugned order, the learned Court below has acted with material irregularity and illegality thereby vitiating the order. Section 24 of the Code, reads thus : “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 desired to be heard, or of its own motion, without such notice, the High Court or the District Court may, at any stage – (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (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) re-transfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section, - (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) “proceeding” includes a proceeding for the execution of a decree or order. 4. The Court trying any suit transferred or withdrawn under this section from a Court of small causes shall, for the purposes of such suit, be deemed to be a Court of small causes. 5. A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it”. 8. 4. The Court trying any suit transferred or withdrawn under this section from a Court of small causes shall, for the purposes of such suit, be deemed to be a Court of small causes. 5. A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it”. 8. The cardinal principle for the exercise of power under Section 24 C.P.C. is that ends of justice demand the transfer of the suit, appeal or other proceeding and it does not prescribe any ground for ordering the transfer of the case and the Court acting under Section 24 may or may not in its judicial discretion transfer a particular case. The transfer can be ordered suo motu and it may be done for administrative reasons. But when an application for transfer is made by a party, the Court is required to issue notice to the other side and hear the party before directing transfer. To put it differently, the Court must act judicially in ordering a transfer on the application of a party. 9. Discretionary power should point out to promote justice and prevent miscarriage by enabling the Courts to do justice. In myriad situations all of which cannot be envisaged. Approach which needs to be adopted in the absence of statutory guidelines should be based on a pragmatic approach keeping in view judicial precedents established over a long period of time. 10. It is true that the plaintiff as ‘arbiter litis’ has the right to choose any forum the law allows him and it is a substantive right like a right of appeal. As a general rule Court should not interfere unless expenses and difficulties of trial would be so great as to lead injustice or the suit has been filed in a particular court for purpose of working injustice. What the Court has to consider is whether the party has made out a case to justify it in closing the doors of the Court in which the suit or proceedings is brought by the plaintiff and leaving him to seek his remedy in another jurisdiction. 11. What the Court has to consider is whether the party has made out a case to justify it in closing the doors of the Court in which the suit or proceedings is brought by the plaintiff and leaving him to seek his remedy in another jurisdiction. 11. The fact that more than one court has jurisdiction under the Code of Civil Procedure to try the suit, the plaintiff as ‘dominus litis’ has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular court convenient to her/him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that the trial in chosen forum will result in denial of justice. Cases are on the increase where a party seeking justice, chooses a forum most inconvenient to the adversary with a view to depriving that party of fair trial. 12. A perusal of the impugned order would show that the following circumstances weighed with the learned District Judge for transferring the case from Sarkaghat to Mandi : (i) that the respondent-applicant was inhabitant of Mandi and whereas Sarkaghat was situate at a distance of 60 KM: (ii) petition for maintenance was already pending adjudication at Mandi wherein interim maintenance of Rs.3000/- per month had already been awarded to the respondent which proved that the respondent had no independent source of income and she was unable to maintain herself. This fact also lent credence to her plea that she could not afford to contest the litigation at Sarkaghat; (iii) Since the applicant was resident of Mandi, it was easy for her to defend her case at Mandi and it would be difficult for her to contest the proceedings at Sarkaghat where she will have to incur huge expenses including traveling expenses, while no prejudice would be caused to the petitioner as he was already defending the proceedings under the Domestic Violence Act at Mandi. 13. Learned counsel for the petitioner would however, contend that mere convenience of the parties is not enough for transferring the proceedings and it has to be shown that trial in the chosen forum would result in denial of justice. 13. Learned counsel for the petitioner would however, contend that mere convenience of the parties is not enough for transferring the proceedings and it has to be shown that trial in the chosen forum would result in denial of justice. In support of his submission, reliance has been placed upon the judgment of the Hon’ble Supreme Court in DAV Boys Senior Secondary School and others vs. DAV College Management Committee (2010) 8 SCC 401 , more particularly observations contained in para 12 thereof which reads as follows: “12. Section 25 of the Code itself makes it clear that if any application is made for transfer, after notice to the parties, if the Court is satisfied that an order of transfer is expedient for the ends of justice necessary direction may be issued for transfer of any suit, appeal or other proceedings from a High Court or other Civil Court in one State to another High Court or other Civil Court in any other State. In order to maintain fair trial, this Court can exercise this power and transfer the proceedings to an appropriate Court. The mere convenience of the parties may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Further illustrations are, balance of convenience or inconvenience to the plaintiff or the defendant or witnesses and reasonable apprehension in the mind of the litigant that he might not get justice in the Court in which suit is pending. The above-mentioned instances are only illustrative in nature. In the interest of justice and to adherence of fair trial, this Court exercises its discretion and order transfer in a suit or appeal or other proceedings”. 14. There is no quarrel with the aforesaid proposition of law. But here it is not the case of the respondent that she is seeking transfer only on the ground of inconvenience. 15. As already noticed above, the learned District Judge has accorded cogent and well founded reasons for transferring the case. This court cannot be unmindful of the fact that the respondent is a lady whose marital status with the petitioner has been disputed by the petitioner himself and therefore, being a lone lady, she is vulnerable and cannot be compelled to face the litigation at a Court which is at a distance of 60 KM. 16. This court cannot be unmindful of the fact that the respondent is a lady whose marital status with the petitioner has been disputed by the petitioner himself and therefore, being a lone lady, she is vulnerable and cannot be compelled to face the litigation at a Court which is at a distance of 60 KM. 16. The fact that the respondent is a destitute and is totally dependent upon the maintenance cannot work to her disadvantage because after all circumstances like the financial conditions of the parties, traveling facilities and the conduct of the plaintiff/petitioner are required to be considered while deciding the case for transfer. The Court may also consider the distance between the places where the proceedings are pending and the places where the proceedings are sought to be transferred. 17. Undoubtedly, the power to transfer under Section 24 is to be exercised with circumspection and should not be exercised as a matter of course and all facts and circumstances of the case, the conduct of the contesting parties and the convenience of the parties have to be objectively assessed. When all these circumstances are objectively assessed in this case one reaches an inescapable conclusion that the application moved by the petitioner is not a mere wanton desire of the respondent to compel the petitioner to attend the proceedings at Mandi, rather it appears to be a case of extreme compulsion necessitating the transfer of the case. 18. It is proved from the record that the respondent is a destitute lady who has none to look after her and would suffer tremendous inconvenience in case she is compelled to attend the proceedings at Sarkaghat. It is but natural for a party in such circumstances to make a plea to the Courts of equity to transfer the proceedings to a place where they would be in a best position to defend the case. In the instant case the wife who has sought the transfer of the proceedings from Sarkaghat where she has no moorings to a place wherein she is leading a life of destitution could be characterized as either perverse, vindictive or based on no evidence. The lengthy arms of justice have to be extended to help the poor, destitute, hapless and the marginalized sections of the society. 19. The lengthy arms of justice have to be extended to help the poor, destitute, hapless and the marginalized sections of the society. 19. From the above discussion, it can safely be concluded that the learned Court below has committed no material illegality or irregularity in passing the impugned order calling for no interference by this Court and therefore, there being no merit in this petition, the same is accordingly dismissed, so also the pending application. The parties are left to bear their own costs. Interim order granted on 28.11.2014 is vacated.