Karnataka High Court
C.S. Shyamala vs C.S. Srikantaiah on 8 February, 1989
Equivalent citations: AIR1990KANT146, 1989(1)KARLJ381, AIR 1990 KARNATAKA 146
ORDER
1. This is a petition filed by the wife of the respondent under S. 24 C.P.C. for transfer of suit O.S. No. 96/86 which is pending on the file of the Additional Civil Judge, Tumkur, to the Family Court, Bangalore.
2. The facts in brief are as follows :
The petitioner is stated to be the legally wedded wife of the respondent and soon after the marriage, differences arose between respondent and petitioner-wife resulting in institution of M.C. 1/85 on the file of the Principal Civil Judge and C.J.M., Tumkur. The marriage was celebrated in Tumkur only and it is not disputed that the last place of residence of the couple is Tumkur. Various contentions were raised before the Principal Civil Judge and C.J.M., Tumkur, by the respondent and the decree for restiiution of conjugal rights was passed by the Court after trial. It is stated that no appeal was preferred and the order became final. According to the petitioner she is now residing along with her brother since her father is not capable of maintaining her and that the respondent is residing at Mysore. Both the parties have engaged counsel from Bangalore to prosecute the respective cases at Tumkur. The grievance of the petitioner is that the financial implication of visiting Tumkur for case-purpose has worked out great hardship on her and especially in the matter of utilising the services of senior advocates including conveyance expenditure by car to Tumkur on the dates of hearing. The other point urged in this petition js that both the advocates belong to Bangalore and their coming all the way to Tumkur in time had become problematic and this also reduced the chances of end of litigation within a reasonably short time. It is further urged that the petitioner is unable to go to Tumkur on account of financial distress and that her brother is also finding it difficult to support her, since he himself is a married person having a child. The petitioner was present in Court in person and on being questioned, stated that she is not employed and she often visits parents at Tumkur, and she is presently staying at Bangalore.
3. On behalf of the respondent it is contended that the respondent is a Section Officer in Life Insurance Corporation of India presently working in Chamarajanagar and his parents who are old are suffering ailments and that they have also undergone operation. In such circumstances it is submitted that the respondent is under a duty to take care of his parents by visiting them frequently. One more interesting point urged is that there is every likelihood of the respondent changing his advocate and it is lastly contended that the parties cannot confer jurisdiction on the Court.
4. It is necessary to refer to Civil Petition No. 330/88 arising out of M.C. 17/82 which was a case for restitution of conjugal rights filed by the petitioner. I considered C.P. 330/88 on 9-1-89 and after hearing arguments, passed an order transfering M.C. No. 17/82 pending on the file of the Principal Civil Judge and C.J.M., Tumkur, to the Principal Family Court at Bangalore, fixing the date of hearing at Bangalore on 10-2-1989.
5. The point for consideration is whether, in the facts and circumstances of the case, it is just and necessary to allow the petition for transfer of the suit in O.S. 96/86 pending on the file of the Additional Civil Judge, Tumkur, to the Principal Family Court, Bangalore?
6. Under S. 24 of the C.P.C. power is conferred on this Court on an application of any of the parties and after notice to them 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 transfer any suit, appeal or other proceedings pending before it for trial ordisposal to any Court subordinate to it and competent to try or dispose of the same.
7. The power that is vested in the High Court under S. 24 of the C.P.C. is comprehensive and discretionary. The very fact that the High Court could on its own motion without notice, could withdraw any suit or appeal or other proceeding pending in any Court subordinate to it and transfer the same, speaks of wide powers which are vested in the High Court under S. 24 of C.P.C.
8. It is no doubt true that respondent who is stated to be the husband of the petitioner is an employee in the Life Insurance Corporation of India and has been working in a transferable assignment, whereas the petitioner is stated to be an unemployed lady who has sought refuge with her brother for support during the pendeny of the litigation. It was also submitted on her behalf that she is actually residing in Bangalore since her parents are unable to maintain her. It was further submitted that the brother of the petitioner who himself is married and has a child is finding it difficult to lend financial support to the petitioner. It is very obvious that prosecution of litigation by going from Bangalore to Tumkur would certainly entail financial burden on the petitioner who is unemployed. Atleast, as far as the respondent is concerned, he is employed and drawing salary benefits and even though he may be in a transferable job, as rightly pointed out by the learned Counsel for the petitioner. In any event, in order to attend the Court at Tumkur he has to pass through from his present place to Mysore to reach Tumkur, and in the alternative he has to come to Bangalore and then proceed to Tumkur. Responsibility of looking after parents, who are stated to be old and have undergone operation and who are living in Tumkur, cannot be mixed up with the issue of continuing litigation in Tumkur. Attendance on ailing parents may not exactly tally with the dates of hearing, since in old age the condition of ailment may fluctuate from time to time without keeping up any time schedule. It is no doubt true that there are reasonable possibilities of the respondent changing horses in mid-stream. It is submitted by the learned Counsel for the respondent that the respondent has changed four advocates so far. The respondent has the freedom of choice and the privilege of engaging a counsel he desires. This factor may not be of much consequence for the purpose of considering transfer of this case. It is no doubt true that consent of parties cannot confer jurisdiction on the Court. However, I would like to make it clear, S. 24 of C.P.C. confers power on this Court to transfer the cases from one court to another, if this Court is satisfied, that circumstances do warrant such transfer.
9. These cases deserve to be viewed from a human angle with due consideration for the unemployed-wife who is living at the mercy of I her brother. Atleast to the extent of over-coming avoidable expenditure some relief would be available to the petitioner if the case is transferred from Tumkur to Bangalore. The Court cannot shut its eyes to human misery. The predicament of the petitioner is aggravated by lack of economic independence.
10. Apart from this I have already transferred one case between the same parties from Tumkur to Bangalore as stated earlier, in C.P. 330/88 on 9-1-1989.
11. For the reasons stated above I pass the following order :
The suit, in O.S. 96/86, pending on the file of the Additional Civil Judge, Tumkur, is hereby transferred to the Principal Family Court, Bangalore, and parties are directed to appear before the Principal Family Court at Bangalore on 10-3-1989. Learned Counsel for the parties may instruct the parties to appear before the Principal Family Court, Bangalore, on 10-3-1989 and no further notice is required to be issued by the Court.
In the meanwhile the Additional Civil Judge, Tumkur, shall ensure the transfer of all the records relating to O.S.96/86 pending on his file to the Principal Family Court, Bangalore.
12. A copy of this order shall be sent to Additional Civil Judge, Tumkur, forthwith.
13. Petition allowed.