Karnataka High Court
Smt. Bhavaneeva W/O Vihappa Arera @ ... vs Smt. Manjula W/O Nagappa Shinde on 28 March, 2023
-1-
C.P. No.100015/2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
CIVIL PETITION NO.100015/2023
BETWEEN
SMT. BHAVANEEVA W/O VIHAPPA ARERA @ SHELARA
AGED ABOUT 73 YEARS,OCC: HOUSEWIFE,
R/O GONABAL-583238,
TQ: AND DIST:KOPPAL.
...PETITIONER
(BY SMT. KARUNA S MUDHOL., ADVOCATE)
AND
1. SMT. MANJULA W/O NAGAPPA SHINDE
AGED ABOUT 40 YEARS,
OCC. HOUSEWIFE, R/O:DEVIHAL-582120,
TQ:SHIRAHATTI AND DIST:GADAG.
2. SMT. GODAVARI @ LAXMI W/O SHIVAJI JADHAV
AGED ABOUT 45 YEARS,
OCC: HOUSEWIFE,R/O: KUMBAR ONI,
Digitally
signed by
ANNAPURNA
NEAR CINEMA TALKIES,HOSARATTI-581213,
CHINNAPPA
ANNAPURNA DANDAGAL
CHINNAPPA
Location:
TQ: AND DIST: HAVERI.
DANDAGAL
HIGH COURT
OF
KARNATAKA
DHARWAD
3. SHRI KANDOBA S/O VITHAPPA ARERA @ SHELARA
AGED ABOUT 34 YEARS,OCC. AGRICULTURIST,
R/O. GONDABAL-583238,TQ: AND DIST: KOPPAL.
4. SHRI. VIJAYKUMAR S/O VITHAPPA ARERA @SHELARA
AGED ABOUT 33 YEARS, OCC: AGRICULTURIST,
R/O: GONDABAL-583238, TQ: AND DIST: KOPPAL
...RESPONDENTS
(BY SRI. PUNEETH BADIGER, ADV FOR
SRI LAXMAN T MANTAGAVI, ADV. FOR R1
R-2 SERVICE HELD DISPENSED WITH
R-3 & R-4 SERVED)
-2-
C.P. No.100015/2023
THIS CIVIL PETITION IS FILED U/SEC.24 OF CPC, 1908,
PRAYING TO TRANSFER OF THE SAID O.S. NO. 152/2022 ON
THE FILE OF CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS BYADAGI TO CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, KOPPAL, TO MEET THE ENDS OF JUSTICE AND
EQUITY.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, COMING FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THIS COURT, PRONOUNCED THE FOLLOWING:
ORDER
This civil petition has been preferred under Section 24(1)(b) of the Code of Civil Procedure, 1908, seeking to withdraw O.S.No.152/2022 on the file of the Civil Judge and JMFC, Byadgi and transfer to the file of the Civil Judge and JMFC Koppal.
2. The respondent No.1 filed suit O.S.No.152/2022 against the petitioner and respondent Nos.2 to 4, seeking relief of partition and separate possession of 1/5th share in the suit schedule property.
3. During the pendency of the suit, the petitioner who is the defendant No.1 has filed this present petition seeking for transfer. -3- C.P. No.100015/2023
4. Heard the learned counsel for the petitioner and learned counsel appearing for the respondents.
5. Miss.Karuna M. Mudhol, learned counsel appearing for the petitioner would contend and seeks for transfer on the following grounds:
1. That petitioner is the 73 years old lady and has aged related deceases and it is inconvenient for her to travel 320 kms to and fro to attain the Court proceedings.
2. That the petitioner needs to take the assistance of her son who is farmers to attain Court at Byadgi.3. That the R.S.No.28/3K/2 measuring 1
acre 7 Guntas at Byadgi and valuation of the property is Rs.2,00,000/-
whereas the R.S.No.56 measuring 6acre is valued at Rs.12,00,000/- is situated at Koppal, hence the higher value of the suit property is at Koppal and therefore, the respondent No.1- plaintiff could have filed suit only at -4- C.P. No.100015/2023 Koppal. However, the present suit has been filed at Byadgi, causing inconvenience to the petitioner.
4. That plaintiff is young and energetic and would able to attain the case at Koppal.
5. That the matter is still at nascent stage and transfer would not cause any legal injury or hurdles.
6. No inconvenience or hardship shall be caused to the respondent No.1 if the petition is allowed.
6. Per contra, learned counsel appearing for respondent No.1 would contend that suit is filed seeking partition and separate possession and the instances stated by the petitioner to seek transfer do not come under the purview of Section 24 of Code of Civil Procedure and that the plaintiff, being the dominus litis, considering the fact that the suit items are the ancestral property has filed the suit before the Civil Judge and JMFC, Bydagi and there is no statutory -5- C.P. No.100015/2023 bar in filing the suit before the said Court and therefore, seeking transfer of the suit to the Court of Koppal is not legally sustainable.
7. Having heard the learned counsel for the parties, the short point involved in this civil petition is whether the petitioner is entitled to seek transfer of the suit in O.S.No.152/2022 on the file of the Civil Judge and JMFC Byadgi, in light of the test of petitioner's grounds urged in the petition.
8. The learned counsel for the petitioner would contend that the petitioner would be put to inconvenience if the suit is tried at Byadgi, since she is aged and suffering from age related diseases and has to engage a counsel to defend her case and travel all the way to attain the case at Byadgi, which would cause serious loss and harm to the petitioner.
9. Plain reading of Section 24 of the Civil Procedure Code confers comprehensive power on the Court to transfer suit, appeal or other proceedings "at -6- C.P. No.100015/2023 any stage" either on an application of any of the parties or suo-moto powers under Section 24 is general power of transfer and withdrawal of cases, pending before any sub-ordinate Court is vested with this Court, accordingly an application by any of the parties and after notice to the parties and after hearing both sides, this Court can transfer any suit or appeal or other proceedings pending before any sub- ordinate Court, for trial or disposal to any other Court, subordinate to it, competent to try or dispose of the same.
10. Admittedly, the suit is before the Civil Judge and JMFC Byadgi, it is not the case of the petitioner that the Court of Byadgi lacks territorial and pecuniary jurisdiction to try the suit, there are two items in the suit schedule property available in the plaint out which the 1st item of the property is within the territorial jurisdiction of the Court of Byadgi. The Hon'ble Apex Court in case of MENAKA SANJAY GANDHI AND -7- C.P. No.100015/2023 ANOTHER VS. MISS.RANI JETHMALANI, reported in (1979) SCC 167, has held para No.2 as under:
"2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like minigrievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may. be myriad and vary from case to case. We have to test the petitioner's grounds on this touch- stone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances."
Emphasis applied
11. Thus while passing an order, transferring the case under Section 24 of CPC the paramount consideration must be to see that justice, has to be done and for achieving that objective, transfer of the cases are imperative. Hence, if the process of justice -8- C.P. No.100015/2023 warrants transfer then the Court has to exercise its power for transfer, even if it is likely to cause inconvenience to either of the parties. Yet another judgment of the Hon'ble Apex Court in the case of INDIAN OVERSEAS BANK, MADRAS VS.
CHEMICAL CONSTRUCTION CO., AND OTHERS, reported in AIR 1979 SC 1514B has held para No.16 as under
"16. The principle governing the general power of transfer and withdrawal under S.24 of the Code is that the plaintiff is the dominus litis and as such, entitled to institute his suit in any forum, which the law allows him. The Court should not lightly change that forum and compel him to go to another Court, with consequent increase in inconvenience and expense of prosecuting his suit. A mere balance of convenience in favour of proceedings in another Court, albeit a material consideration may not always be a sure criterion justifying transfer."
Emphasizes applied.
12. Another judgment by the Hon'ble Apex Court in the case of KULWINDER KAUR ALIAS KULWINDER GURUCHARAN SINGH VS. KANDI -9- C.P. No.100015/2023 FRIENDS EDUCATION TRUST AND OTHERS reported in AIR 2008 SC 1333 has held para Nos.26 and 28 as under
26. In the case on hand, the High Court without stating anything whatsoever as to allegations and counter-allegations, without considering the reply submitted by the appellant herein and without recording any reason/ ground passed the impugned order transferring the case. The learned counsel for the contesting respondent no doubt submitted that the Court has not observed anything since observations by a High Court one way or the other might prejudice one of the parties to the suit. It is true that normally while making an order of transfer, the court may not enter into merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side. At the same time, however, an order of transfer must reflect application of mind by the court and the circumstances which weighed in taking the action.
28. It was also urged that the plaintiff's side could not get favourable order on applications under Order 39 Rules 1 and 2 of the Code and, hence, it wanted to get the case transferred. In view of the assertion and retraction by the plaintiff and the defendants, in our considered opinion, the High Court ought to have applied its mind to those aspects and prima facie satisfied as to the grounds put forward by the plaintiff in the transfer application and ought to have passed an order one way or the other
- 10 -C.P. No.100015/2023
without entering into the controversy in the suit. Unfortunately, the High Court allowed the application observing that it would be "appropriate" to transfer the suit pending in the Court of Smt Asha Kondal, Civil Judge (Senior Division), Ropar to the Court of Shri Y.S. Rathore, Additional Civil Judge (Senior Division), Chandigarh. In our opinion, powers under Section 24 of the Code cannot be exercised ipse dixit in the manner in which it has been done. Only on that ground and without entering into larger issue, the appeal deserves to be allowed and is accordingly, allowed."
13. The Hon'ble Apex Court held that power under Section 24 of the Civil Procedure Code cannot be exercised in ipse-dixit manner and only if prima- facie the Court is satisfied as to the grounds put forth by the petitioner in transfer petition can allow for transfer.
14. The Hon'ble Apex Court has laid down the cardinal principles governing the general power of transfer being:
1.Assuance of fair trial is the first imperative to be considered when motion for transfer is sought.
- 11 -
C.P. No.100015/2023
2.While motion for transfer is not on hypersensitivity or relative inconvenience or easy availability of legal services or mini grievances.
3. It has to be more substantial, more compelling and more imperiling.
4. Right to choose any Court having jurisdiction is to the plaintiff, the plaintiffs being the dominus litis and defendant cannot dictate or compel him to go to another Court in his convenience.
15. In the case on hand the plaintiff has filed suit before the Court of Byadgi and it is not the case of the petitioner that the Court of Byadgi has no territorial or pecuniary jurisdiction to decide the partition suit, merely on the ground that it would be inconvenient to the petitioner cannot justify the criteria for transfer, when the Court has jurisdiction to try and decide the suit. In the absence of any statutory bar, a mere balance of convenience in favour of the proceedings in another Court, albeit a material
- 12 -
C.P. No.100015/2023consideration may not always be a sure criterion justifying transfer under Section 24 of CPC when the Court has jurisdiction to try and decide the suit, in light of the judgments of the Apex Court referred to supra.
16. In the aforesaid circumstances, this Court is of the considered view that the petition seeking for transfer of the suit is liable to be dismissed Accordingly, this Court pass the following:
ORDER
a) Civil petition is hereby dismissed.
b) No order as to costs.
(Sd/-) JUDGE AC