Allahabad High Court
Smt. Sushma Mishra Wife Of Sri Mithilesh ... vs Sri Mithilesh Kumar Mishra Son Of Shri ... on 10 October, 2007
Equivalent citations: 2008(2)AWC1604
Author: Tarun Agarwala
Bench: Tarun Agarwala
JUDGMENT Tarun Agarwala, J.
1. The applicant is the wife of the opposite party and has filed the present application under Section 24 of the C.P.C for the transfer of the marriage dissolution Case No. 161 of 2007, filed under Section 13 of the Hindu Marriage Act, from the Court of Principal Judge, Family Court Allahabad to the Court of Alipore District Court, South 24, Parganas, Kolkata in the State of West Bengal. The applicant alleged that the marriage was solemnized with the opposite party at Allahabad on 5.2.1994 and, since then, the parties resided together at Allahabad and a male child was born in the year 1995. The applicant alleged that the opposite party, being unemployed, used to physically and mentally torture her and eventually on 15.2.2007, the opposite party threw out the applicant from his house, as a result of which, the applicant had no place to cover her head and eventually, she had to take shelter in her parents house which was located in Kolkata in the State of West Bengal. The applicant contended that at the present moment she is residing with her parents at Kolkata and has also filed a matrimonial suit No. 500 of 2000 before the District Judge. Alipore under Section 9 of the Hindu Marriage Act for the restitution of conjugal rights. The applicant contended that the suit pending before the Family Court. Allahabad should be transferred to Kolkata on the ground that she was residing at Kolkata at the time of the presentation of the petition under Section 13 of the Hindu Marriage Act and therefore, the suit ought to have been filed at the place where she was residing in view of the provisions of Section 19 of the Family Courts Act. Further, the applicant contended that it was not possible for her to come to Allahabad on each and every date and that her parents are more than 70 years old and it was not possible for her parents to accompany her to Allahabad on each and every date. The applicant also, contended that her application under Section 9 was also pending in Kolkata and therefore, it was necessary that both the suits should be decided together.
2. The opposite party resisted the transfer application and submitted that the High Court had no jurisdiction to transfer the suit to Kolkata under Sections 22, 23 or 24 of the Code of Civil Procedure and that the Supreme Court alone had the power to transfer the suit under Section 25 of the C.P.C. The opposite party submitted that in any case no cause of action arose in the State of West Bengal for the Court to consider the transfer of the case from Allahabad to Kolka'a. The opposite party submitted; that the applicant had always been a permanent resident of Allahabad and that her entire schooling and education was held at Allahabad and that her parents also lived at Allahabad and eventually, the applicant was married to the opposite party at Allahabad and thereafter continued to reside at Allahabad. The opposite party further contended that even after 15.2.2007, the applicant continued to remain in Allahabad and is not residing in Kolkata and that the suit under Section 9 had only been filed in order to harass the opposite party. The applicant, in rejoinder affidavit has filed various documents, namely, the identity card issued by the Election Commissioner of West Bengal, the ration card, etc. to show that her parents are residents of Kolkata since the year 1996 and therefore, contended that her parents are residing in a permanent capacity in the State of West Bengal.
3. Heard Sri Siddharth the learned counsel for the applicant and Sri V.B. Upadhya the learned Counsel assisted by the N.K. Dwivedi for the opposite party.
4. At the outset the learned Counsel for the opposite party submitted that the condition precedent prescribed under Section 22 and 23 of the C.P.C. has not been complied by the applicant and therefore the transfer application was misconceived and was liable to be rejected. It the initial threshold itself. The learned Counsel submitted that the conditions prescribed are mandatory and non compliance of the mandatory provisions would render the application ineffective and, consequently, the same was liable to be rejected. In order to appreciate the submissions of the learned counsel for the opposite party, it is necessary to peruse the provisions of Section 22, 23 and 24 of the C.P.C. which reads as under:
22. Power to transfer suits which may be instituted in more than one Court- Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which, of the several Courts having jurisdiction the suit shall proceed.
23. To what Court application lies.- (1) Where the several Courts having jurisdiction are subordinate to the same Appellate-Court, an application under Section 22 shall he 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.
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 us own motion, without such, notice, the High Court or the District Court may at any stage-
(a) transfer any suit, appeal or other proceedings 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 proceedings pending in any Court subordinate to it; and
(i) try to 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 frost 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 oe 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 or Small Causes.
[(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]
5. A perusal of Section 22 of the C.P.C. contemplates that the application for transfer should be filed at the earliest possible moment and before the settlement of the issues and after previous notice to the other party. In so far as the first two conditions are concealed, in my opinion, the application for transfer had been filed at the earliest opportune moment and before the settlement of the issues. Section 22 contemplates a third condition, namely, that the application for transfer could only be filed after previous notice is given to the opposite party. The learned Counsel for the opposite party submitted that no previous notice was given to the opposite party and therefore, the application for transfer, filed in the High Court straightway, without giving previous notice if its intention to the opposite party, was liable to be rejected since the mandatory provision was not complied. In support of his submissions, the learned Counsel for the opposite party placed reliance upon a decision of this Court, reported in Dr. Rajnath v. L. Vidya Ram and Ors. , wherein the Court held:
The ground mentioned in the application is covered by Section 22, Civil P.C. The section however lays down two conditions in which such an application may be made, first that the application should be made at the earliest possible opportunity and in any case at or before the settlement of issues and second that it should be made after notice to the other party. These conditions were not complied with by the applicant. Learned Counsel for the applicant argues that his application is under Sections 23 and 24, Civil P.C. The argument has no force.
Section 23 merely lays down the forum in which applications under Section 22 are to be made. Although Section 22 is mentioned in Clause (1) of Section 23 only, Classes (2) and (3) of that section also refer to an application made under Section 22 and do not refer to an application made under Section 24. Section 23 is not an independent section. It is supplemental to Section 22. Section 24 is a general provision empowering the High Court or the District Court to transfer a case on the motion of any other party or on its own motion. The general power conferred by Section 24 is not to be applied where the case falls under Section 22. If Section 24 were to apply to the classes of cases covered by Section 22, it would not have been necessary for the Legislature to enact Section 22 at all. It is a general principle of interpretation of Statutes that where there is a special provision for a particular matter and there is also a general provision, the special provision should be applied. The application in the present case having been made or the ground which is covered by Section 12 falls under that section and not under section 24(2) The provisions of Section 22 not having been complied with, the application is not maintainable and is dismissed with cost.
From a perusal of the aforesaid decision, it is clear that Section 23 of the C.P.C. is only supplemental to Section 22 and, whereas, Section 24 is a general provision empowering the High Court to transfer the case on the motion of any other party or on its own motion, the general power which is conferred under Section 24 of the C.P.C. cannot be applied where the case was rendered under Section 22 of the C.P.C. The Court further held that since the conditions mentioned in Section 22 was not complied, the application was not maintainable. On the other hand, the learned Counsel for the applicant placed reliance upon a decision in Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand Saraswati v. Ramji Tripathi and Ors. , wherein the Court held that the defect in not giving a previous notice was a curable defect and that the Court while deciding the application for transfer of the case could only do so after hearing the opposite party. In my opinion, if previous notice of its intention to move the transfer application was not given to the opposite party, the same is not such a defect which could not be cured. In my opinion, this condition prescribed under Section 22 is not a mandatory provision. Even if previous notice was not given, the opposite parties are now being heard before the High Court Consequently, this Court is of the opinion that the application for transfer of the case cannot be rejected on the short ground that previous notice of its intention was not given by the applicant. Consequently, the submission of the learned Counsel for the opposite party on this aspect is rejected.
This leads us to the second question, namely, whether, the High Court of Judicature at Allahabad has the jurisdiction to transfer a case to another Court which is not subordinate to it. The learned Counsel for the opposite party has placed reliance upon a decision of the Supreme Court in Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry (1981)2 SCC 646, wherein the Supreme Court held that it had plenary powers to transfer a case from one High Court to another. In my opinion, this judgment has no application to the present controversy involved. In the said decision, the question was, whether the provisions of Section 21 and 21-A of the Hindu Marriage Act would prevail over the provision of Section 25 of the C.P.C. and, in that regard, the Supreme Court held that the plenary power, of the Supreme Court under Section 25 of the C.P.C. cannot be curtailed by the provisions of Section 21 and 21-A of the Hindu Marriage Act; On the otherhand, the learned counsel for the applicant placed reliance upon a decision of he Supreme Court in Western U.P. Electric and Power Supply Co. Ltd. v. Hind Lamps Ltd. 1969 (2) SCWR 16 wherein the Supreme Court held that the High Court has the power to transfer a case under Section 23(3) of the C.P.C. from one Court to another Court outside its jurisdiction. The Supreme Court held-
It was also contended that the procedure followed by the High Court was erroneous. It was submitted that the High Court should merely have declared that the suit should proceed in the court of the Sub-Judge Delhi, and the High Court could not transfer the suit from the court of Civil Judge at Mainpuri. But the application contemplated to be made under Section 22 is one for the transfer and when such an application is made, the court is competent to determine in which of the several Courts having jurisdiction the suit shall proceed and to transfer, the suit to that Court if it is already not pending in that Court. If the application made before the Court is one for transfer, and the Court after considering the circumstances determines that one of the several courts shall proceed to hear the suit, the determination of necessity must be followed by transfer of the suit to the court in which it is to proceed; to hold otherwise would be to make the entire proceeding before the High Court meaningless.
Similar view was expressed again by the Sunrenv Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal and in Jagatguru Shri Shankaracharva Jyotish Peethadhiswar Shri Swami Swaroopanand Saraswati v. Ramji Tripathi and Ors. . Consequently, this Court is of the opinion thai if the Court which is outside the jurisdiction of the High Court, is competent to entertain and decide the suit, the High Court while exercising its powers under Section 23(3) can transfer a case from its jurisdiction to a Court subordinate to the jurisdiction of another High Court.
This takes us to the next issue, namely, the source of jurisdiction. Section 19 of the Hindu Marriage Act provides as under:
19. Court to which petition shall be presented.- Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction-
(i) the marriage was solemnized, or
(ii) the respondent, at the time of presentation of the petition resides, or
(iii) the parties to the marriage last resided together, or [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or] (IV) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
6. From a reading of the aforesaid provision, the jurisdiction of the Court can be invokeld if the marriage was solemnised within the local limits of the Court, or where the respondents at the time of the presentation of the petition resided or where the parties to the marriage last resided together. The question is, whether the suit filed by the opposite party under Section 13 of the Hindu Marriage Act at Allahabad was maintainable. From the record it is clear that the marriage was solemnised at Allahabad and the parties last resided together at Allahabad. Therefore or these two counts, the Court at Allhabad had the jurisdiction to entertain the suit.
Without going into the controversy as to whether the applicant is actually staying at Allahabad or at Kolkata, this Court posed a query as to whether the residence e of the applicant at Kolkata amounts to a permanent abode or is only a temporary abode. The Supreme Court in Smt. Jeewanti Pandey v. Kishan Chandra Pandey had the occasion to interpret the word "resides" and "residing" used in Section 19 of the Act and held that the word "resides" means more than a temporary stay and has to be of a permanent character The Supreme Court held as under:
In order to give jurisdiction on the ground of "residence", some thing more that a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, is his natural form. The word "resides" is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is capable of being understood in its ordinary sense of having one's own dwelling permanently, as well as in its extended sense. In its ordinary sense "residence" is more or less of a permanent character. The expression "resides" means to make an abode of an considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has fixed home or abode. In Webster's Dictionary, "to reside" has been defined as meaning "to dwell permanently or for any length of time", and words like "dwelling place" or "abode" are held to be synonymous. Where there is a such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health or business or for a change. If a person lives with his wife and children, in an established home, his legal and actual place of residence is the same. If a person has no established home and is compelled to live in hotels, boarding houses are houses of others, his actual and physical habitation is the place where he actually or personally resides, In Y. Narsimha Rao and Ors. v. Y. Venkata Lakshmi and Anr. , the Supreme Court held:
residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well.
Consequently, the residence of the applicant has to one which is in the nature of a permanent character.
The question now is, whether the applicant is a bird of passage at Kolkata? is she residing there in Kolkata on a permanent basis or has she filed the suit for the restitution of conjugal rights for a limited purpose of obtaining a decree? Does she have an intention to make Kolkata her home, namely, a permanent abode? All these questions are yet to be answered. At the moment, the applicant has not alleged that her residence at Kolkata would be of a permanent nature nor can it be culled out from the pleadings. However, this Court is of the opinion that on a technicality, the tests contemplated under Section 19 are met and the fact that she has made an allegation that she is now residing in Kolkata with her parents, in my opinion, meets the technical requirements of Section 19(iiia) of the Act in so tar as her suit is concerned. At the present moment, this Court is of the opinion that the applicant is a bird of passage and has resorted to the Court of Kolkata solely to procure a decree for the restitution of conjugal rights. The Supreme Court in Smt. Satya v. Teja Singh stated as under:
True, that the concept of domicile is not uniform throughout the world and just as long residence does not by itself establish domicile, brief residence may not negative it. But residence for a particular purpose fails to answer the qualitative rest for, the purpose being accomplished the residence would cease. The residence must answer "a qualitative as well as quantitative test", that is the two elements of factum at animus must concur.
7. In my opinion the said ruling is squarely applicable to the present case. Assuming for a moment that the suit of the applicant is decreed by the Kolkata Court, namely, a decree for the restitu ion of conjugal rights the net effect would be that the applicant would be compelled to stay with her husband at Allahabad. Consequently, the applicant's stay at Kolkata appears to be temporary in nature for the time being. Consequently, the judgment of the Supreme Court fortifies my opinion, namely, that the applicant is a bird of passage and has filed the suit at Kolkata for the limited purpose of obtaining a decree for the restitution of conjugal rights. She has shown her residence at Kolkata on the strength of the fact that her parents are now residing at Kolkata, and to that limitted extent, she is technically justified in filing a suit at Kolkata, if she is actually found to be staying at Kolkata.
The question which now remains is, how to balance the convenience of the parties. The opposite party is a dominus litus and has a right to choose the forum as well as the jurisdiction. Admittedly, under Section 19 of the Act, the opposite party has filed the suit at Allahabad winch has the jurisdiction to entertain the suit under Section 13 of the Act. The applicant, on the otherhand has alleged that she is presently residing at Kolkata and therefore, on her convenience, the suit should be transferred from Allahabad to Kolkata. The learned Counsel for the applicant, in support of his submission, has placed reliance upon a decision of the Supreme Court in Sumita Singh v. Kumar Sanjay and Anr. wherein the Supreme Court held that the wife's convenience has to be looked into and consequently, transferred the suit to the place of convenience of the wife.
8. On the otherhand, the learned Counsel for the opposite party submitted that mere convenience is not sufficient to transfer the case. Something more is required to be alleged namely, that the applicant would be denied justice in the Court where the case is presently pending. In support of his submission, the learned Counsel placed reliance upon a decision of the Supreme Court in Dr. Subramaniam Swamy v. Ramakrishna Hegde , wherein the Supreme Court held-
The cardinal principle of the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and the circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one court has jurisdiction under the Code 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 him. The mere convenience of the parties or any one of them may not he enough for the exercise of the parties or any one of them may not he enough for the exercise of the power but it must also he shown that trial in the chose forum will result in denial of justice.
9. Having considered the rival submissions of the parties, this Court is of the opinion that even though the applicant may be presently residing at Kolkata and may have instituted a suit under Section 9 of the Hindu Marriage Act, the Court is invested with the discretion to transfer the case from one Court to another if it considers expedient to meet the ends of justice. It is not possible for the Court to conceive ah kinds of situations but, from the facts of the present case, which has been brought on the record, it is clear that the applicants entire education and upbring was held at Allahabad and the applicant's marriage with the opposite party was also solemnised at Allahabad and, after their marriage, a male child was also born at Allahabad. Further, the parties last resided together at Allahabad. Consequently, merely because at this stage, the applicant's parents are living in Kolkata where the applicant has taken a temporary shelter will not, in my opinion, make it convenient, at her behest, to transfer the case from Allahabad to Kolkata. No allegation has been made that the applicant would be denied justice in the Court at Allahabad. Consequently, on the ground of mere convenience the case cannot be transferred from Allahabad to Kolkata.
10. In view of the aforesaid, this Court is of the opinion, that no ground exists for the transfer of the case from Allahabad to Kolkata. The transfer application fails and is dismissed.