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2023 DIGILAW 312 (RAJ)

Sangita v. Sudeep

2023-01-27

SAMEER JAIN

body2023
JUDGMENT : (Sameer Jain, J.) The present transfer application has been filed by the applicant-wife under section 24 of CPC seeking transfer of Application No. 19/2021 titled as 'Sudeep Kumar v. Smt. Sangita', filed by respondent-husband under section 9 of Hindu Marriage Act, 1955 (in short "HMA"), from the Upper District & Session Judge Shri Dungar Garh-Bikaner to Family Court Jaipur. 2. In pursuance of order dated 05/01/2023 assistance was provided to the Court by learned Senior Counsel Sh. Ajeet Kumar Bhandari. 3. Facts of the case are that the marriage of the applicant and respondent was solemnized on 23/06/1999 at Churn. The parties have been living separately since 2020. The respondent-husband filed an application under Section 9 of HMA in the Court of Dungar Garh, District Bikaner in February of 2021. The applicant-wife filed an application under section 23 of the Protection of Women From Domestic Violence Act, 2005 (for short "DV Act") at Jaipur Metro-II, Jaipur seeking maintenance of Rs.50,000/-per month. One FIR was also filed by the applicant-wife against the respondent in Police Station Mahila Thana, Jaipur (West), Jaipur for offence under Sections 498A, 406,323,314,147, and 504 of IPC and after conclusion of investigation, charge sheet has also been filed. 4. Replying upon the said facts, the present transfer application has been filed by the petitioner under section 24 CPC for transfer of the application filed by the respondent-husband under Section 9 of the HMA from the Court of Dungar Garh, District Bikaner to the concerned Family Court at Jaipur on the grounds that the applicant-wife is currently residing with her aged parents in Jaipur and that several proceedings arising out of the same matrimonial dispute are also pending in Jaipur. It was also submitted that since the applicant-wife has no independent source of income, it would be difficult for her to travel from Jaipur to Bikaner to attend the proceedings. 5. Per contra, learned counsel for the respondent has vehemently opposed the present transfer application. Learned counsel further raised a preliminary objection qua maintainability of the present transfer application as the court in district Bikaner falls in the territorial jurisdiction of Principal Seat of Rajasthan High Court at Jodhpur. In support of the preliminary objection, learned counsel for the respondent-husband has relied upon the order passed by coordinate Bench of this Court in Komal v. Deepak Kumar (SB Civil Transfer Application No.18/ 2020). 6. In support of the preliminary objection, learned counsel for the respondent-husband has relied upon the order passed by coordinate Bench of this Court in Komal v. Deepak Kumar (SB Civil Transfer Application No.18/ 2020). 6. In this background, before adverting to the merits of the case, this Court is inclined to take up the issue of maintainability of the present transfer application as the transfer has been sought from Dungar Garh (Bikaner) which falls under territorial jurisdiction of the Principal seat of Rajasthan High Court at Jodhpur to Family Court, Jaipur, which falls under the jurisdiction of Jaipur Bench of the Rajasthan High Court. 7. Before adverting to the issue, it is necessary to consider the relevant provisions of CPC, HMA and General Clauses Act, 1897. 8. The definition of the word 'High Court' in the General Clauses Act, reads as under:- "3(25) "High Court", used with reference to civil proceedings, shall mean the highest Civil Court of appeal (not including the Supreme Court) in the part of India in which the Act or Regulation containing the expression operates." 9. Relevant sections of CPC are reproduced as under:- "Section 19 - Suits for compensation for wrongs to person or movables Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts. Section 20 - Other suits to be instituted where defendants reside or cause of action arises (a)... (b)... (c) the cause of action, wholly or in part, arises. [Explanation] A corporation shall be deemed to carry on business at its sole or principal office in [India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. (b)... (c) the cause of action, wholly or in part, arises. [Explanation] A corporation shall be deemed to carry on business at its sole or principal office in [India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. Section 21 - Objections to jurisdiction (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice. Section 21A - Baron suit to set aside decree on objection as to place of suing No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place suing. Explanation-The expression "former suit" means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned. Explanation-The expression "former suit" means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned. 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 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) retransfer 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 purpose 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. " 10. Apart from considering the aforesaid provisions of law, it is also important to consider the judgment rendered by Madras High Court in E. Mary Oliviya v. E. Jsohua Milton: 2008 (7) Mad. LJ 1012 wherein it was held as under:- "23. " 10. Apart from considering the aforesaid provisions of law, it is also important to consider the judgment rendered by Madras High Court in E. Mary Oliviya v. E. Jsohua Milton: 2008 (7) Mad. LJ 1012 wherein it was held as under:- "23. The moot question is whether for the purpose of filing transfer petition the principle relating to filing of appeal can be applied, or the principle relating to filing of original proceeding like a writ petition can be applied. If it is considered invocation of jurisdiction under Section 24 is similar to invocation of appellate jurisdiction, it can be reasonably argued that since no appeal from a decision of a Court at Coimbatore can be filed at Mudurai Bench, an application to transfer a proceeding or suit pending in the Coimbatore Court cannot be filed before the Permanent Bench of the Madras High Court at Madurai. However, in the context of transfer, a proceeding under section 23 or 24 partakes the character of an "original proceeding' rather than an appellate proceeding. 24. In this context, it is necessary to indicate that in several decisions it has been recognized that the proceedings under section 24 CPC are original proceedings in nature. 27. In view of the above conclusion, the concept of cause of action or the "reason for filing" can be examined to find out where such an application can be filed. It a litigant seeks transfer of a suit from a Court at Coimbatore to a Court at Madurai, it can be reasonably construed that the cause of action or the reason for filing transfer arises partly within the territorial jurisdiction of Principal Bench and partly within the territorial jurisdiction of the Permanent Bench and he can file the petition at either place. Where a party wants a suit, to be transferred to a particular place, either because such a party is a resident of such place or may be because such place would be more convenient as most of the witnesses are from such places, it can be said that cause of action or the reason for filing a transfer petition has at least arisen partially in such place and therefore, the petition for transfer can be filed as per convenience of the litigant seeking transfer." 11. Learned Senior Counsel Mr. Learned Senior Counsel Mr. Ajeet Kumar Bhandari, who is appearing as Amicus Curiae, submitted that the proceedings filed under section 24 of the CPC, i.e. the transfer proceedings, partake the character of an original proceeding rather than the appellate proceedings and therefore, the concept of 'cause of action' or the 'reason for filing' can be examined to find out where such application can be filed. Learned Amicus Curiae submitted that in the similar situation, a Judge Bench of Madras High Court, in the case of E. Mary Oliviya(supra), has held that when the cause of action or the reason for seeking transfer arises partly within the territorial jurisdiction of one Bench and partly within the territorial jurisdiction of another Bench of the same High Court, then transfer application can be filed at either of the benches of the High Court. Learned Amicus Curiae further submitted that it can be said that the cause of action or the reason for filing a transfer petition has at least arisen partially in such place and therefore, the petition for transfer can be filed as per convenience of the litigant seeking transfer. Learned Amicus Curiae also relied upon a judgment rendered by Full Bench of the Madras High Court in B. Stalin v. The Registrar, Supreme Court of India: 2012 (4) CTC 113 , more particularly on Para 27 which reads as under:- "Even otherwise, similar questions regarding cause of action and the territorial division between two Benches have arisen before this Court in more than one occasion. It is necessary to refer to one or two decisions. In E. Mary Oliviya v. E. Jsohua Milton, 2008 (7) MLJ 1012 , a Division Bench of this Court presided by P.K. Misra, J. (as he then was) went into the question of the jurisdictional issue after analyzing all cases cited by the Bar. In paragraph 42, the legal position has been summarized, which reads 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 Bench 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 petition 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. This should have set at rest all controversies regarding the jurisdiction between two Benches. But unnecessary controversies have been raised without any fruitful purpose." Learned Amicus Curiae submitted that in the aforesaid case, the dictum of the 2 Judge Bench of Madras High Court in E. Mary Olivia (supra) was approved by the Full Bench of Madras High Court on the issue of cause of action and the territory defined between two Benches and applying the theory of original proceedings and cause of action, it was finally held that transfer application can be filed at either of the places i.e. the Principal Bench or the Permanent Bench of the High Court as cause of action seeking transfer arises at either of the places. 12. Considering the assistance provided by learned Sr. Counsel appearing as Amicus Curiae, this Court is of the view that upon consideration of the provisions of section 24 of the CPC and Section 21A of the HMA, it is absolutely clear that: (a) filing of transfer application is an original proceeding; (b) the cause of action as defined under section 20(c) CPC partly arises at both the piace; (c) the forum convenience theory has is to be applied qua the petitioner-applicant; (d) the provisions of Section 21A of the HMA does not control the power of the Court as provided under section 24 CPC, because Section 21 of HMA applies only in the situation when two separate petitions are filed in the same Court (e) All the subordinate courts under the territorial jurisdiction of Bench and the Principal Seat are not subordinate to two different High Courts but to one High Court; (f) time and again, the coordinate Benches of this High Court in Anshu Bhatnagar v. Rajendra Bhatnagar: AIR 2013 Rajasthan 28; Shilpa Agarwal v. Subhash Agarwal (SB Civil Msc. Transfer Application No.66/2012 decided on 29/05/2013); Meena Choudhary v. Kamal Avtar Mahla (SB Civil Transfer Application No.25/2021 decided on 12/01/2023); Chandani Sharma v. Shailesh Kumar Sharma (SB Civil Transfer Appl. No.84/2021 decided on 19/10/2022); Smt. Babita v. Sumer Singh (SB Civil Transfer Application No.130/2019 decided on 04/03/2022), have taken a consistent view that transfer application is maintainable at Jaipur Bench when the transferor court falls within the territorial jurisdiction of Principal Seat at Jodhpur or vice-versa. (g) In Sayali v. Swapnil (Misc. Civil Appln. No.341/2013 decided on 19.09.2013), the Nagpur Bench of Bombay High Court held that all Courts exist for the convenience of the litigants and not in order to maintain any particular system of law or any particular system of administration and after considering the provisions of Section 3(25) of the General Clauses Act which defines High Court, the Bombay High Court held that the provisions of Chapter XXXI of the Bombay High Court Appellate Side Rules, 1960 are designed to meet administrative requirements and administrative convenience and they are beneficial piece of legislation. (h) In matrimonial matters, the proceedings under section 24 CPC were held to be the original proceedings and the cause of action for filing the matrimonial proceedings was held to be an independent cause of action by the Bombay High Court in Sayaji v. Swapnil (supra) and by the Madras High Court in B. Stalin (supra) and while affirming this dictum, the Bombay High Court considered the judgment rendered by the Hon'ble Apex Court in the case of Rajasthan High Court Bar Advocates Association v. Union of India: AIR 2001 SC 416 . (i) as regards the reliance placed by learned counsel for the respondent whereby preliminary objection was raised in consideration of the judgment of coordinate Bench of this Court in Komal v. Deepak Kumar (SB Civil Transfer Application No.18/2020), this Court is of the opinion that the same was on different facts and cannot be considered as a binding precedence for the following reason:- the said judgment has not considered the fact that section 24 CPC proceedings are original proceedings; filing of the transfer application and the place constitute an independent and different cause of action; no reliance was placed upon judgments of Madras High Court in the cases of E. Mary Olivia (supra) and B. Stalin (supra) or the judgment rendered by Bombay High Court in the case of Sayali v. Swapnil (supra) and other coordinate Bench judgments of this High Court, especially the judgment rendered in the case of Anshu Bhatnagar (supra). (j) as regards the reliance placed by learned counsel for the respondents on the judgment rendered in Arun Kumar Gupta v. State of Raj. & Anr.: (2010) 2 WLC 584, the same has no application in the facts and circumstances of the present case as the matter therein pertained to jurisdiction of the High Court for maintaining petitions under Section 482*of Cr.P.C. regarding dishonour of cheque in criminal proceedings. 13. In view of above findings, the preliminary objection raised by learned counsel for the respondent are found to be not sustainable and it is held that the transfer application under section 24 CPC partakes the character of original proceedings and on account of the said fact, the concept of 'cause of action' or 'the reasons for filing' can be examined to find out where such an application can be filed. If a litigant seeks transfer of a suit from a subordinate court falling under the territorial jurisdiction of the Principal Seat of this Court at Jodhpur to a subordinate court falling under the jurisdiction of Bench of Rajasthan High Court at Jaipur, it can reasonably be construed that the cause of action or the reason for seeking transfer arises partly within the jurisdiction of Principal Seat and partly within the jurisdiction of the Jaipur Bench and the same can be filed at either place as per convenience of the litigant seeking transfer. 14. 14. To put it other way, if the analogy of the respondent's counsel is accepted, then conversely, the Principal Seat of Rajasthan High Court at Jodhpur would also lack the jurisdiction to entertain transfer application when one of the subordinate courts falls within the territorial jurisdiction of Jaipur Bench of Rajasthan High Court, thereby denying the litigants the right to seek transfer altogether. 15. Accordingly, considering the judgments of E. Mary Oliviya (supra), B. Stalin (supra) of the Madras High Court, and judgment of Sayali v. Swapnil. (supra) of Bombay High Court and the judgments of coordinate Benches of this Court, referred to supra, this Court is inclined to consider the present application on merits as the transfer application is held to be maintainable before this Court at Jaipur Bench of Rajasthan High Court. 16. In the case in hand, considering the arguments advanced by both the sides, considering that two matters arising out of the same matrimonial dispute are pending at the Courts in Jaipur; that the applicant-wife is financially deprived with no independent source of income; that the distance involved herein is of more than 300 kilometers, further considering the provision of Section 19 of HMA and relying upon the judgment of Hon'ble Apex Court in the case of N.C.V. Aishwarya v. A.S Sarvana Karthik Sha (Civil Appeal No. 4894/2022), Sumita Singh v. Kumar Sanjay & Ors.: AIR 2002 SC 396 , Rajni Kishor Pardeshi v. Kishor Babulal Pardeshi: (2005) 12 SCC 237 , and Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap: AIR 2016 SC 3584 this Court is inclined to allow the present transfer application. 17. Accordingly, the present transfer application is allowed. The Application No. 19/2021 titled as 'Sudeep Kumar v. Smt. Sangita', filed by respondent-husband under Section 9 of HMA, is transferred from the Court of Upper District & Session Judge, Shri Dungar Garh-Bikaner to Family Court No.2 Jaipur. 18. Both the parties are directed to appear before the transferee Court on 03.03.2023. By that time, the record of the case be transmitted to the transferee Court by the Court concerned. It is made clear that if any of the parties would not appear on the date fixed by this Court, the Family Court would be at liberty to proceed in accordance with law. 19. By that time, the record of the case be transmitted to the transferee Court by the Court concerned. It is made clear that if any of the parties would not appear on the date fixed by this Court, the Family Court would be at liberty to proceed in accordance with law. 19. It is expected that the transferee Court shall dispose of the matter as expeditiously as possible, preferably within the time period specified in the HMA. 20. Transfer application is allowed. Pending applications, if any, stands disposed of. Application allowed.