Jammu & Kashmir High Court
Mohini Devi And Others vs Kaniya Lal Pandit And Others on 1 October, 2019
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CTA No. 42/2013
IA No. 41/2013
Pronounced on :01 /10/2019
Mohini Devi and others .... Petitioners/Applicants
Through:- Mr. Ashok Bhan, Advocate
V/s
Kaniya Lal Pandit and others ..... Respondent(s)
Through:- None.
Coram : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
1. Petitioners/applicants have filed the Civil Transfer Application for transferring the suit for declaration, joint possession, partition and permanent injunction titled 'Kaniya Lal Pandith v. Rattan Lal Pandith and others' pending in the Court of Munsiff, Baramulla to any other Court of competent jurisdiction at Jammu.
2. The above titled suit is filed by respondent No.1 was considered by Munsiff, Baramulla, who vide his order dated 26.11.2013 restrained the non-applicants/petitioners herein from creating any third party interest, till the next date of hearing.
3. It is submitted that petitioners are migrants and are duly registered as such before the Relief Organization. They have left their homes and migrated to Jammu due to prevailing circumstances in the Valley and since then are residing there. Respondent No.1, is their brother and a resident of Delhi, has filed the civil suit against them in Baramulla, just to cause harassment 2 CTA No. 42/2013 and inconvenience to them. It is further submitted that they are in acute financial crisis and it is difficult for them to contest the suit in Baramulla because of the expenses involved and also due to the prevailing conditions in the Valley as they fear threat to their life and liberty.
4. Respondent No.3, who in his objections, has stated that he has no objection to the transfer of the suit to Jammu.
5. The only objection raised by respondent No.1 to the transfer of suit is that since he has filed the suit before the Munsiff, Baramulla, therefore, petitioners are bound to contest this matter and produce their witnesses in that Court.
6. Respondent No.2 did not file any objections to the said petition.
7. This petition was considered on 10.12.2013 and the proceedings before the trial Court at Baramulla were stayed.
8. The Hon'ble Supreme Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh vs. Kandi Friends Education Treust and others, 2008 (3) SCC 659 while considering transfer of cases from one Court to another has held as under:
"Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; interest of justice demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceedings. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to 3 CTA No. 42/2013 have a fair trial in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order."
9. Since the parties to the suit are brothers and sisters and admittedly migrants from the Valley for whom it would be extremely difficult to attend, contest and produce witnesses in Baramulla in view of the prevailing conditions in the Valley, whereas respondent No.1 is the resident of Delhi and can contest the suit in Jammu also.
10. The fact that the parties to the suit are migrants, who have migrated out of the Valley due to the disturbed conditions, therefore, apprehension in the mind of the petitioners is reasonable that they will not be able to contest this litigation at Baramulla and, as such, will not be able to get justice.
11. In view of the aforesaid facts and circumstances of the case, this petition is allowed. Suit titled 'Kaniya Lal Pandith v. Rattan Lal Pandith and others' pending in the Court of Munsiff, Baramulla is transferred to the Court of Munsiff, Jammu for further adjudication.
12. Parties are directed to appear before the Court of learned Munsiff, Jammu on 31.10.2019.
13. Registry to send a copy of this order each to both the Courts and the Court of Munsiff, Baramulla shall send the record to the transferee Court.
14. Disposed of along with connected IA.
(Sindhu Sharma) Judge JAMMU 01.10.2019 Pawan Chopra Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No PAWAN CHOPRA 2019.10.01 17:38 I attest to the accuracy and integrity of this document