Telangana High Court
Dr. Purnesh Vijay Kumar Bet vs Dr. Srujana Poornesh Bet on 21 June, 2023
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
TRANSFER CIVIL MISCELLANEOUS PETITION Nos.389
AND 393 OF 2022
COMMON ORDER :
These two Transfer Civil Miscellaneous Petitions have been filed by the same petitioner under Section 24 of C.P.C with a prayer to transfer two matrimonial matters from the file of Senior Civil Judge, Jagtial to Family Court at Hyderabad or any other Court in the State of Telangana. The petitioner has filed Transfer Civil Miscellaneous Petition No.389 of 2022 with a request to withdraw O.P.No.113 of 2011 from the Court of Senior Civil Judge, Jagtial for its transfer to Family Court at Hyderabad or any Court in the State of Telangana and the second petition has been filed for transfer of O.P.No.122 of 2012. Since the main ground on which the above petitions are filed is one and the same, and common arguments have been advanced, and more particularly the petitions sought to be transferred from Jagtial to other Court are between the same parties who are none other than wife and husband, it 2 Tr.CMP Nos.389 & 393 of 2022 is proposed to dispose both the petitions under a common order.
2. As per the affidavit filed in support of Tr.C.M.P.No.389 of 2022 the petitioner has claimed that he got acquaintance with the facts of the case and stated that he has filed O.P.No.59 of 2011 before Civil Judge, (Senior Division), Solapur against his wife seeking divorce. However, on the application filed by the respondent/wife, the petition filed by the petitioner has been transferred from Solapur to Senior Civil Judge's Court at Jagtial and renumbered as O.P.No.122 of 2012. The respondent/wife has filed another petition vide H.M.O.P.No.113 of 2011 against the petitioner herein under Section 9 of Hindu Marriage Act for Restitution of Conjugal Rights.
3. The petitioner further submitted that while allowing the petition filed by the respondent for transfer of the divorce case in Transfer Petition (C) No.223 of 2012 the Hon'ble Apex Court directed the Senior Civil Judge, Jagtial to decide the matter within a period of (9) months without granting undue adjournments to either party. 3
Tr.CMP Nos.389 & 393 of 2022
4. The petitioner further stated that he has filed I.A.No.746 of 2014 under Order VI Rule 17 C.P.C. r/w 151 C.P.C. seeking amendment of his pleadings, but his application was dismissed by the learned Senior Civil Judge, Jagtial on the ground that he has been filing petitions after petitions, seeking adjournments. Therefore, the petitioner aggrieved by the said order, preferred revision before High Court vide C.R.P.No.2816 of 2016 and the same was allowed on 28.12.2016.
5. The petitioner further stated that he has filed a memo on 31.12.2015, requesting the Court to club the petition filed by the respondent vide O.P.No.113 of 2011 along with divorce petition. But, the Court below did not pass any orders and kept the memo pending. Thereby he has filed another revision petition vide C.R.P.No.5056 of 2016 before this Court and the same was allowed with a direction to the Senior Civil Judge, Jagtial to club both the petitions and proceed with the matter.
4
Tr.CMP Nos.389 & 393 of 2022
6. The petitioner further stated that the respondent/wife filed I.A.No.179 of 2016 seeking maintenance and the trial Court granted pendentelite maintenance to the respondent on 01.06.2016. Therefore, he filed C.R.P.No.5083 of 2016 which was disposed on 16.06.2022 and while disposing the said C.R.P., this Court directed the trial Court to dispose O.P.No.122 of 2012 within period of (3) months from the date of receiving the order. The petitioner further contended that the respondent is a Dental Practitioner and running hospital known as Sruzana Dental Hospital at Jagtial, in spite of it, the trial Court granted pendentelite maintenance @ Rs.20,000/-per month which was subsequently reduced by this Court to Rs.10,000/-.
7. The petitioner further stated that the father of the respondent is a Senior Advocate, practicing at Jagtial and because of his influence, the Court below did not try to dispose of the above referred petitions. Apart from that the petitioner states that he underwent angioplasty in December 2021. Therefore, it is very difficult for him to 5 Tr.CMP Nos.389 & 393 of 2022 travel 1000 KM's from Solapur to Jagtial and Jagtial to Solapur in a single day. The father of the respondent is a Senior Lawyer at Jagtial, thereby the petitioner is apprehending danger that in near future his case is not going to be disposed. The respondent is having sufficient income. In spite of it, he is ready to pay travelling expenses to the respondent, if the cases are transferred to Hyderabad in view of his health condition.
8. The petitioner further averred that on 29.08.2022 when the counsel of the petitioner herein started cross examination of respondent at 05:00 P.M., the Presiding Officer raised from the Bench on urgent call and again attended the Bench after some time, and after recording some cross examination, adjourned the matter to next date. But, on the next day there was intentional interference by the Presiding Office in the cross examination and finally the cross examination was concluded on 30.08.2022. In view of the above stated circumstances, the petitioner sought for transfer of the above referred divorce case and petition filed by the 6 Tr.CMP Nos.389 & 393 of 2022 respondent wife for Restitution of Conjugal Rights to Hyderabad or any other Court in the State of Telangana. He has filed the other transfer C.M.P. on the same grounds.
9. In view of the circumstances explained in the affidavit filed in support of the petition, this Court directed the registry to call for the detailed remarks of the learned Senior Civil Judge. Jagtial as to why the above referred matrimonial matters were not disposed and in response to the letter received from the registry, learned Senior Civil Judge. Jagtial has submitted his detailed remarks along with copies of entire record.
10. Herd both parties.
11. Now the point for consideration is:
Whether there are grounds for transferring of O.P.No.113 of 2011 and O.P.No.122 of 2012 from the file of Senior Civil Judge, Jagtial to the file of Family Court at Hyderabad or any other Court in the State of Telangana, as prayed for ?7
Tr.CMP Nos.389 & 393 of 2022
12. POINT:
As already stated, the above referred two petitions are filed by the husband who herein after will be referred as petitioner for convenience sake against the respondent who is none other than his wife. As could be seen from the record, it is very clear that the respondent/wife has filed petition under Section 9 of Hindu Marriage Act, seeking Restitution of Conjugal Rights vide H.MO.P.No.113 of 2011, whereas the petitioner herein filed O.P.No.59 of 2011 before Civil Judge, (Senior Division), Solapur seeking dissolution of marriage. However, in view of the petition filed by the wife before the Hon'ble Apex Court seeking transfer of divorce petition filed by her husband, the Hon'ble Apex Court allowed her application and transferred O.P.No.59 of 2011 from the file of Civil Judge, (Senior Division), Solapur to Senior Civil Judge, Jagtial. It is a fact that while allowing the petition filed by the wife, Hon'ble Apex Court directed the learned Senior Civil Judge to dispose of the petition within (9) months without giving unnecessary adjournments. The main grievance of the petitioner by seeking transfer of cases is on two grounds. 8
Tr.CMP Nos.389 & 393 of 2022
13. The petitioner has stated that the father of the respondent/wife i.e., father-in-law of the petitioner is a senior Advocate, practicing at Jagtial and he is influencing the presiding office in not disposing the petitions. The other contention of the petitioner is whenever he filed petitions, they were not properly ordered and he has filed revision before the High Court. He has also claimed that in spite of the fact that his wife is running a dental hospital, the Court below granted pendentelite maintenance @ Rs.20,000/- and on revision the same was reduced to Rs.10,000/-.
14. Learned Senior Civil Judge, Jagtial having received letter from the High Court, submitted his remarks with all the details including the dates of hearing and tried to explain as to why he could not have dispose the main petitions filed by the petitioner herein and respondent. Learned Senior Civil Judge, Jagital has submitted copies of entire record along with explanation/remarks. According to the letter received from the trial Court, it seems though H.M.O.P.No.59 of 2011 was transferred long back, there 9 Tr.CMP Nos.389 & 393 of 2022 was no progress in the trial because the translated copies of the documents and record were not received, thereby the matter was adjourned from time to time up to 18.12.2014. The letter further shows that the petitioner herein informed the trial Court that he has filed transfer petition before the Hon'ble Supreme Court and the same was pending. However, the said petition was dismissed on 18.12.2014 and later the translated copies of the documents were filed before the trial Court.
15. Subsequently, the respondent/wife filed her counter and when she filed petition seeking pendentelite maintenance, the same was disposed on 01.06.2016. However, the petitioner herein having approached this Court by filing C.R.P.No.2812 of 2012 obtained interim stay of the proceedings in Criminal M.P.No.3562 of 2016. Learned Senior Civil Judge, Jagtial further stated that on 30.11.2016 he received copy of stay from this Court and counsel for the petitioner herein filed a memo before the Court below to dismiss the petition for non-payment of arrears of maintenance. However, in view of the 10 Tr.CMP Nos.389 & 393 of 2022 interlocutory application and revision petition filed by the petitioner, there was no progress in the trial.
16. The letter of the Senior Civil Judge, Jagtial further indicates that on 25.06.2019 when the respondent filed I.A.No.413 of 2019 seeking maintenance to her daughter, the petitioner herein filed counter on 19.07.2019. But, there was no progress in the trial because the Court was vacant in view of transfer of the Presiding Officer up to September, 2019. Subsequently, in view of covid pandemic, there was no trial and petitions were adjourned from time to time, till 2021. According to the letter received from the Senior Civil Judge, Jagtial, it seems he has assumed charge at Jagtial on 31.05.2022 and on 23.06.2022, the respondent/wife filed petition to recall the petitioner herein and it was allowed with a direction to both parties not to seek any adjournments. Learned Senior Civil Judge, Jagtial has submitted that after the cross examination of PW1, the petitioner herein filed another petition vide I.A.No.701 of 2022 to recall PW1 for further cross examination, but the said petition was opposed by the respondent/wife. 11
Tr.CMP Nos.389 & 393 of 2022
17. Therefore, the above letter and the affidavit filed by the petitioner itself clearly indicates that there were multiple factors including covid pandemic for the failure of the Court below in disposal of divorce petition and petition filed by the wife seeking restitution of conjugal rights. Simply because the father of the respondent/wife i.e., father-in-law of the petitioner herein is an Advocate, this Court will not accept the contention of the petitioner that the Presiding Officer will be influenced by the Advocate to keep the petitions pending in spite of the directions of the Apex Court.
18. According to the remarks received from learned Senior Civil Judge, Jagtial, it seems the petitioner herein did not attend the Court for about 7 months during 2017. Thereby, once his evidence was eschewed, but however, he has filed petition to recall the said order and to set aside the exparte order. Thereby, petition was allowed giving an opportunity to the petitioner herein to proceed with enquiry. There was no progress in the trial from 12 Tr.CMP Nos.389 & 393 of 2022 12.04.2017 to 07.12.2017 in view of the above stated interlocutory applications.
19. Except the oral allegations that the father-in-law being a senior Advocate at Jagtial influencing the Presiding Officer, there is no other evidence to believe that the Presiding Officer of Senior Civil Judge Court, Jagtial is intentionally dodging the proceedings. Simply because the father of the petitioner is an Advocate, no Presiding Officer would venture to do some favour to one of the parties, in spite of the fact that there is a direction from the Hon'ble Apex Court for quick disposal of the divorce petition. The affidavit filed in support of the petition and records submitted by the Court below clearly shows that there was delay due to interlocutory applications filed by both parties and in fact the present Officer took charge only in May, 2022. Therefore, it cannot be said that the Presiding Officer intentionally delayed the disposal of the cases. As per the remarks submitted by the learned Senior Civil Judge, Jagtial, in spite of his best efforts, he was unable to proceed with the enquiry in the petitions only because of 13 Tr.CMP Nos.389 & 393 of 2022 the interlocutory applications filed by both parties. The petitioner cannot deny the fact that due to covid-2019 there was no work during 2020-2021.
20. The request of the petitioner for transfer of cases cannot be considered for another reason namely : Already the petition filed by the respondent seeking transfer of O.P.No.59 of 2011 was allowed by the Hon'ble Apex Court with a specific direction to the Court below for disposal of the petition in (9) months. This Court cannot pass any order against the said finding because, the orders of Supreme Court in Transfer Petition No.223 of 2012 is binding on this Court. It appears from the record that when the respondent/wife approached Hon'ble Apex Court to transfer the diverse case filed by her husband from Solapur to Jagtial, the same was considered, the Court cannot pass another order by withdrawing the said divorce case from the file of Senior Civil Judge, Jagtial for its transfer to some other Court. Therefore, for all these reasons both the petitions are liable to be dismissed. However, in view of the above stated circumstances, while 14 Tr.CMP Nos.389 & 393 of 2022 dismissing the petitions, the learned Senior Civil Judge, Jagtial is directed to bestow his attention for disposal of both petitions vide O.P.No.122 of 2012 and O.P.No.113 of 2011 within (2) months posting the petitions on day to hearing.
21. In the result, both the Transfer Civil Miscellaneous Petitions are dismissed. No costs.
As a sequel, pending Miscellaneous Applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 21.06.2023 PSSK