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2016 DIGILAW 22 (CAL)

Sanghamitra Mondal v. Mahua Das (Mondal)

2016-01-08

ASHIS KUMAR CHAKRABORTY

body2016
JUDGMENT : . Ashis Kumar Chakraborty, J. All these three applications under Section 24 of the Code of Civil Procedure, 1908 are at the instance of the same petitioner. In the first application, C.O. No. 840 of 2015, the petitioner has prayed for transfer of the Money Suit No. 50 of 2014 filed against herself by her brother-in-law, Manas Kumar Mondal and pending before the Court of the learned Civil Judge (Senior Division), 2nd Court at Barasat to any competent Court at Alipore, South 24 Parganas. In the second application, C.O. No. 841 of 2015 the petitioner has prayed for transfer of the Money Suit No. 22 of 2014 filed against herself by her sister-in-law, Smt. Mahua Das (Mondal) pending before the learned Civil Judge (Senior Division), at Bolpur at Birbhum to any competent Court at Alipore, South 24 Parganas. In the third application, C.O. No. 2729 of 2015 the petitioner has prayed for transfer of the Money Suit No. 193 of 2015 filed against herself by her mother-in-law, Latika Mondal and pending before the Court of the learned Civil Judge (Senior Division), 2nd Court at Barasat to any competent Court at Alipore, South 24 Parganas. Since, the facts as also the law involved for deciding all the applications are identical, all these three applications are disposed of by this common judgment. The facts giving rise filing of these three applications by the petitioner are shortly stated as follows. The petitioner is the wife of one Dr. Malay Kumar Mandal. The said husband of the petitioner has filed a matrimonial suit under Section 13(1)(I)(a) of the Hindu Marriage Act, 1955, before the Court of the learned District Judge, South 24 Parganas at Alipore, claiming a decree for divorce. On August 20, 2011, the petitioner lodged a written complaint before the Officer-in-Charge, Kasba Police Station alleging that her said husband, has physically and mentally tortured her and the same was instigated by her father-in-law, mother-in-law, brother-in-law and sister-in-law (husband’s sister). On the basis of the said written complaint of the petitioner, Police Authority registered a Frist Information Report and Kasba Police Station case No. 379 of 2011 was initiated against the husband, father-in-law, mother-in-law, brother-in-law and sister-in-law of the petitioner. On the basis of the said written complaint of the petitioner, Police Authority registered a Frist Information Report and Kasba Police Station case No. 379 of 2011 was initiated against the husband, father-in-law, mother-in-law, brother-in-law and sister-in-law of the petitioner. The Investigation Officer of the Kasba Police station filed charge-sheet against the petitioner’s husband as also her father-in-law, the mother-in-law, the brother-in-law and the sister-in-law Section 498A, 323, 506, 34 and 406 of the Indian Penal Code read with Sections 3 and 4 of the Dowry Prohibition Act. It was the case of the petitioner’s father-in-law and mother-in-law that they resided at their home at Sribhumi Police Station, Lake Town and the petitioner together with her husband were living separately, in their own flat at Rajdanga Main Road, Kasba and as such the allegations made by the petitioner against them are unfounded and motivated. Even the petitioner’s brother-in-law and the sister-in-law, being the opposite parties in C.O. No. 840 of 2015 and C.O. No. 841 of 2015, claimed that they were residing at Guwahati and at Bolpur in the District of Birbhum, respectively and they were named by the petitioner in her aforementioned complaint by making untrue allegations against them. By filing separate applications under Section 482 of the Criminal Procedure Code, 1973, the father-in-law, mother-in-law, brother-in-law and the sister-in-law of the petitioner obtained the charge-sheets and the criminal proceeding filed against them, which were pending before the Judicial Magistrate, 9th Court, Alipore being quashed by this Court. Thereafter, the brother-in-law of the petitioner filed the Money Suit No. 50 of 2012 before the learned Civil Judge, (Senior Division), 2nd Court at Barasat claiming a decree for Rs. 20 lakhs against the petitioner on account of damages suffered by him due to malicious prosecution launched against him by the petitioner. The mother-in-law of the petitioner has also filed Money Suit No. 193 of 2015 before the learned Civil Judge, (Senior Division), 2nd Court at Barasat claiming a decree of Rs. 10 lakhs against the petitioner on account of damages suffered by her due to malicious prosecution launched by the petitioner against her. The third suit being Money Suit No. 22 of 2014 has been filed by the sister-in-law of the petitioner, before the learned Civil Judge, (Senior Division), Bolpur at Birbhum claiming a decree for Rs. 10 lakhs against the petitioner on account of damages suffered by her due to malicious prosecution launched by the petitioner against her. The third suit being Money Suit No. 22 of 2014 has been filed by the sister-in-law of the petitioner, before the learned Civil Judge, (Senior Division), Bolpur at Birbhum claiming a decree for Rs. 20 lakhs against the petitioner on account of damages suffered by her due to malicious prosecution initiated against her by the petitioner. As stated above, in these three applications, the petitioner being the common defendant in each of the said money suits has prayed for transfer of the three money suits from the Courts of learned Civil Judge, Senior Division, Second Court at Barasat and the learned Civil Judge, Senior Division, Bolpur at Birbhum, respectively to any competent Court at Alipore, South 24 Parganas. The principal ground urged by Mr. Partha Pratim Roy, learned Advocate appearing the petitioner was that the petitioner is already contesting the matrimonial suit filed by her husband before the Court of the learned Additional District Judge, 3rd Court at Alipore, South 24 Parganas and since the petitioner is residing with her two minor children at Kasba in the District of South 24 Parganas, she will face great inconvenience to contest the three money suits filed by her mother-in-law, brother-in-law and sister-in-law pending before the Court of the learned Civil Judge, Senior Division, 2nd Court at Barasat and the learned Civil Judge, Senior Division at Bolpur respectively. Mr. Roy further submitted that admittedly the petitioner is residing at Rajdanga Main Road, Kasba Kolkata within the jurisdiction of the Court at Alipore, South 24 Parganas, but the opposite parties have filed the aforesaid money suits before the Court of the learned Civil Judge, Senior Division, 2nd Court at Barasat before the learned Civil Judge, Senior Division, Bolpur at Birbhum, respectively with the sole intention to harass the petitioner. His last contention was that since the alleged causes of action of each of the opposite parties in these applications, in their aforementioned money suits against the petitioner, are same and the issues to be decided in each of the money suits against the petitioner involve same facts and questions of law, all the three suits should be consolidated and transferred to the competent Court at Alipore, South 24 Paganas. In support of such contention, Mr. In support of such contention, Mr. Roy cited the decisions of the Supreme Court in the cases of M/s. Chitivalasa Jute Mills vs. Jayee Rewa Cement reported in (2004) 3 SCC 85 and in the case of Prem Lata Nahata vs. Chandi Prasad Sikaria reported in (2007) 2 SCC 551 . However, Mr. Prasenjit Barman, learned Advocate appearing for the respective opposite parties in these three applications submitted that the opposite parties have filed the aforementioned money suits, for realization of the damages suffered by each of them on account of malicious prosecution being filed by the petitioner against each of them respectively and as such the petitioner could not contend that the learned Court of the Civil Judge, (Senior Division), 2nd Court at Barasat and the learned Court of the Senior Division, Bolpur at Birbhum, within whose jurisdiction respective the opposite parties presently reside does not have the jurisdiction to entertain the said money suits. He further submitted that since the aforementioned money suits have filed before the respective Courts of competent jurisdiction, the contention raised on behalf of the petitioner that the opposite parties have filed the money suits before the Court of the learned Civil Judge (Senior Division), 2nd Court at Alipore, South 24 Parganas and the Court of the learned Civil Judge, (Senior Division,), Bolpur at Birbhum respectively with the intention to harass the petitioner is absolutely unfounded. The next contention of Mr. Barman was that the opposite party in C.O. 2729 of 2015 being the mother-in-law of the petitioner is eighty one years old and in her affidavit-in-opposition she has disclosed all her medical documents substantiating that she is suffering from various illness and she will face great hardship if, the money suit filed by her is transferred to any Court at Alipore, South 24 parganas. The last contention of Mr. Barman was that the matrimonial suit filed against the petitioner by her husband pending before the learned District Judge, South 24 Parganas, Alipore cannot be a ground for transfer on any of the aforementioned money suits filed by the respective opposite parties in these three applications against the petitioner to any Court at Alipore, South 24 Parganas. He submitted that the distance between the residence of the petitioner and the Court at Barasat is only about 25 kilometers only and she can travel to the Court at Barasat on her own. According to Mr. He submitted that the distance between the residence of the petitioner and the Court at Barasat is only about 25 kilometers only and she can travel to the Court at Barasat on her own. According to Mr. Barman, the petitioner has his father, elder sister, her brother-in-law and other friends and relatives to look after her children and to accompany her to the Court at Barasat. I have considered the facts of the instant case as also the submissions of both Mr. Roy and Mr. Barman appearing for the respective parties in these applications. In all these three applications under Section 24 of the Code, the petitioner being the common sole defendant in all the three aforementioned suits have prayed for transfer of the said suits from the Court of the learned Civil Judge (Senior Division), 2nd Court, at Barasat, North 24 Parganas and the Court of the learned Civil Judge (Senior Divison), Bolpur to any competent Court at Alipore, 24 Parganas (South). It is the well settled principle of law that while exercising jurisdiction under Section 24 of the Code, for transfer of a suit or proceeding from one Court to another, this Court is required to consider the convenience and inconvenience of the respective parties to the application. In the instant case, it is not the case of the petitioner that any of the Courts of the learned Civil Judge (Senior Division), 2nd Court, Barasat, North 24 Parganas and the learned Civil Judge (Senior Division), Bolpur, District- Birbhum lacks the jurisdiction to entertain the said respective money suits. The mother-in-law of the petitioner is 81 years old and in her affidavit-in-opposition filed in C.O. No. 2729 of 2015, the mother-in-law of the petitioner has disclosed various medical documents to substantiate that she is suffering from various ailments and she will suffer great hardship, if the Money Suit No. 193 of 2015 filed by her before the learned Civil Judge (Senior Division), 2nd Court, Barasat, North 24 Parganas is transferred to any Court at Alipore, South 24 Parganas. Further, the distance between the residence of the petitioner and the Court at Barasat is about 25 kilometers. The petitioner is an educated lady who can travel to Barasat to contest the money suits filed against herself by her mother-in-law and her brother-in-law. Further, the distance between the residence of the petitioner and the Court at Barasat is about 25 kilometers. The petitioner is an educated lady who can travel to Barasat to contest the money suits filed against herself by her mother-in-law and her brother-in-law. From the documents disclosed by the respective parties, particularly the criminal revisional application C.R.R. No. 1130 of 2014 produced by Mr. Barman, it appears that the petitioner has her father, sister and other friends who can look after her children and one of them can even accompany her to the Court of learned Civil Judge (Senior Division), Barasat, North 24 Parganas. For all these reasons, I am unable to accept the prayer of the petitioner for transfer of either the Money Suit No. 193 of 2015 filed by the opposite party in the third application C.O. No. 2729 of 2015 or the Money Suit No. 50 of 2014 filed by the opposite party in C.O. No. 840 of 2015 from the Court of the learned Civil Judge (Senior Division), 2nd Court, Barasat to any Court at Alipore, District: South 24 Parganas. Accordingly, both the application C.O. No. 840 of 2015 and C.O. No. 2729 of 2015 stand rejected. In the instant case, the causes of action in all the afore-mentioned three money suits filed against the petitioner by the brother-in-law, the sister-in-law, mother-in-law and the petitioner respectively are alleged to have arisen out of the complaint lodged by the petitioner against them, on August 20, 2011 before the Officer-in-Charge, Kasba Police Station, giving rise to the Kasba Police Station case being No. 379 of 2011 which have been quashed by this Court, in exercise of jurisdiction under Section 482 of the Criminal Procedure Code, 1973. The petitioner in all these three applications is the common defendant in each of the aforementioned three money suits pending before the Court of the learned Additional Civil Judge (Senior Division), 2nd Court, Barasat, North 24 Parganas and the learned Civil Judge (Senior Division) at Bolpur, District-Birbhum, respectively. Thus, although the principle of consolidation of suits under Sections 151 of the Code of Civil Procedure, 1908, as laid down by the Supreme Court in the said case of M/s. Chitivalasa Jute Mills (supra) cited by Mr. Thus, although the principle of consolidation of suits under Sections 151 of the Code of Civil Procedure, 1908, as laid down by the Supreme Court in the said case of M/s. Chitivalasa Jute Mills (supra) cited by Mr. Roy on behalf of the petitioner does not strictly apply in this case, but for the ends of justice and to avoid the hardship to be faced by the petitioner to contest the Money Suit No. 22 of 2014 before the learned Civil Judge (Senior Division) at Bolpur, which is at a far distance from the residence of the petitioner in Kolkata, when the petitioner has no relative at Bolpur where she may be required to stay overnight to contest said suit and when the plaintiff in the said suit can stay with her mother and brother at Lake Town in Kolkata, I am of the view that the Money Suit No. 22 of 2014 filed by the sister-in-law of the petitioner should be transferred to the Court at Civil Judge (Senior Division), 2nd Court at Barasat, North 24 Parganas. Thus, the application C.O. No. 841 of 2015 stands allowed. Accordingly, the Money Suit No. 22 of 2014 [Smt. Mahua Das (Mondal) vs. Smt. Sanghamitra Mondal] is withdrawn from the Court of the learned Civil Judge (Senior Division), Bolpur at Birbhum and the same is transferred to the Court of the learned Civil Judge, (Senior Division), 2nd Court at Barasat, North 24 Parganas. The learned District Judge Birbhum is directed to transmit all the records of the Matrimonial Suit No. 22 of 2014 Mahua Das (Mondal) vs. Smt. Sanghamitra Mondal to the Court of the learned Civil Judge (Senior Division), 2nd Court at Barasat, North 24 Parganas. It is, however, made clear that since the plaintiff in the transferred suit is a researcher as well as a Professor in Viswabharati University, the transferee Court may fix the hearing of the suit after considering the convenience of the plaintiff and that she is not required to remain absent from the University, as the same shall affect the students of the University. With the above directions, the revisional applications being C.O. 841 of 2015, C.O. 840 of 2015 and C.O. 2729 of 2015 stand disposed of. However, there shall be no order as to costs. With the above directions, the revisional applications being C.O. 841 of 2015, C.O. 840 of 2015 and C.O. 2729 of 2015 stand disposed of. However, there shall be no order as to costs. Urgent certified photostat copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.