Madhya Pradesh High Court
Smt. Geeta Kathpalia vs Hemant Kathpalia on 29 February, 1992
Equivalent citations: AIR1992MP281, 1993(0)MPLJ411, AIR 1992 MADHYA PRADESH 281, (1992) JAB LJ 213 (1993) MPLJ 411, (1993) MPLJ 411
ORDER Shacheendra Dwivedi, J.
1. This petition under Section 24 of the Civil Procedure Code is filed by defendant/wife, seeking transfer of Civil Suit No. 22-A/88, filed by non-petitioner under Section 12(1)(b) and Section 13(1)(ia) and (iii) of the Hindu Marriage Act, pending in the Court of 5th Additional District Judge, Bhopal, to an appropriate Court at Gwalior.
2. Facts leading to the filing of this petition may be briefly stated. The petitioner is a legally wedded wife of the non-petitioner, and their marriage took place at Bhopal on 28-11-85. The petitioner and the non-petitioner are stated to have lived together till 18-6-86. On 19-6-86, the petitioner delivered a female child, now named Dolly.
3. In the above suit, a written statement has been filed, and is being contested by the petitioner. In that suit an application under Section 26 of the, Hindu Marriage Act for taking the custody of Dolly, the minor daughter, was moved by the non-petitioner, which was dismissed on 27-6-90, by the Court against which a Misc. Appeal was filed by non-petitioner in the High Court at Jabalpur, wherein a show cause notice was issued and has been answered by the petitioner.
4. In this petition, it is averred that going to Bhopal is most inconvenient to the petitioner being a lady as she cannot go there every time all alone, with the minor child. Though, the petitioner has a brother but he is also not prepared to accompany her to Bhopal every time. It is alleged further that the non-petitioner has given a threat to the petitioner and her relations that if the petitioner does not agree for divorce, they should all be prepared for dire consequences. The petitioner due to such threat to her life and limb, feels apprehensive and is scared of going to Bhopal. In the circumstances, therefore, it is submitted that there cannot be a fair trial at Bhopal and has as such prayed that the Civil Suit pending at Bhopal be transferred to an appropriate Court at Gwalior.
5. Denying the allegations, a preliminary objection with regard to territorial jurisdiction of this Bench, in entertaining the petition, is raised by the non-petitioner contending that while establishing the permanent Benches of the High Court of Madhya Pradesh with its Principal Seat at Jabalpur under the Presidential Order dated 28-11-68, passed in exercise of his powers under Section 51(2) of the States Reorganisation Act 1956, the areas of the State were provided and that cases arising out of Bhopal District, as that vests in the Main Seat of the High Court at Jabalpur.
6. It would be of much relevance at this stage to refer to the past history of the High Court in this State. The present State of Madhya Pradesh came to be formed under Section 9 of States Reorganisation Act, 1956 (for short 'the Act'), from 1-11-56. Under Section 50 of the Act, the High Court of Madhya Pradesh with its seats at Gwalior and Indore and the Judicial Commissioners' Court for Bhopal and Vindhya Pradesh were abolished from the above date. The President of India, under Sub-section (1) of Section 51 of the Act, issued the order on 30-10-56, appointing the principal seat of the High Court of the new State of Madhya Pradesh at Jabalpur, and the Chief Justice, by order dated 1-11-56, ordered, the holding of sittings of High Court also at Gwalior and Lahore, establishing temporary Benches, with intent to continue the facility of High Court, which was available to the people of the area from before, adding some more area as a result of State's reorganisation.
7. These temporary Benches were made permanent by the President of India under his order dated 28-11-68, passed in exercise of his powers under Section 51(2) of the Act. The order passed with regard to Gwalior, Bench, may be reproduced with profit:--
"In exercise of the powers conferred by subsection (2) of Section 51 of the States Reorganisation Act, 1956 (37 of 1956), I Zakir Hussain President of India, after consultation with the Governor of Madhya Pradesh and the Chief Justice of the High Court of Madhya Pradesh, hereby establish a permanent Bench of the Madhya Pradesh High Court at Gwalior and further direct that such Judges of the High Court of Madhya Pradesh, being not less than two in number, as the Chief Justice may from time to time nominate, shall sit at Gwalior in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the revenue district of Gwalior, Shivpuri, Datia, Guna, Vidisha (Bhilsa), Bhind and Morena:
"Provided that the Chief Justice may, for special reasons, order that any case or class of cases arising in any such district shall be heard at Jabalpur."
8. A similar order providing jurisdiction on different district to Indore Bench was also passed, leaving the remaining area of the State with the Main Seat, Jabalpur. While establishing the permanent Benches, the order contemplated the exclusive territorial jurisdiction for the seat of the High Court to exercise, within that territory with the above proviso.
9. The Presidential Order, therefore, carved out exclusive jurisdiction, to be exercised by the Judges, while sitting at Gwalior or Indore, for the territory indicated therein. The Order, has further provided that the Chief Justice, may for special reasons, order that any case or class of cases, arising in any such district to be heard at Jabalpur. While dealing with the similar provision of the United Provinces High Court (Amalgamation) Order 1948, their Lordships of Supreme Court in Nasiruddin v. S.T.A. Tribunal, AIR 1976 SC 331, found that the provision conferred exclusive jurisdiction on the indicated area, the Lucknow Bench except where such a case was directed by the Chief Justice, to be heard at Allahabad.
10. The proviso to the Presidential Order, vests in the Chief Justice, the power to order the hearing of any case or class of cases arising in the specified territory, to be done at Jabalpur. This power has been briddled and subjected to restrictions by introducing the Presidential Order Hon'ble G. L. Oza, J., (as he then was) expressing the majority view of this Court in Abdul Taiyab v. Union of India, 1976 MP LJ 767 : (AIR 1977 MP 116 (FB), observed that:--
"However, I do not think it necessary to State that the Chief Justice has to exercise those powers consciously. At the same time, it is unnecessary to mention that he will exercise such powers only after the norms are followed. I may State that the powers are conferred on the high office of the Chief Justice of a State and it is not necessary for us to state how he is expected to exercise these powers as it is always presumed that the powers are exercised in accordance with law."
11. The words 'in respect of cases arising in' the assigned districts, with the proviso of the order, convey the sense that such cases are to be heard by the Benches only and cannot be heard and disposed of at Jabalpur, unless so ordered by the Chief Justice.
12. Since the President has specified the districts over which, the permanent Benches are to exercise exclusive jurisdiction, it is clear that the jurisdiction of Benches is confined to the cases arising within the specified districts, and they are not competent to hear and decide cases arising in other areas, which are not assigned to them.
13. It is no doubt true that the Chief Justice and the Judges sitting at Gwalior, Indore and Jabalpur constitute the 'High Court', the Article 216 of the Constitution provides:--
(216) "Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint."
14. It is again true that the Judges sitting at Gwalior, Indore or Jabalpur, administer the law for whole of the State and the write issued, run throughout its territories and are binding on all, the Judges and the public alike. So far as the constitution of High Court is concerned it is not relevant where the Judges sit, but they have to certainly exercise jurisdiction within the assigned territories and administer justice according to the roster prepared by the Chief Justice, under the rules.
15. Admittedly, under this petition the transfer of the suit pending at Bhopal, is sought of which the cause of action arose at that place. It is not disputed that the district of Bhopal does not, fall within the specified area of this Bench, of the Indore Bench. The cause of filing this petition is to seek the transfer of the above suit to Gwalior. It is further not disputed that the main Seat of the High Court at Jabalpur is already seized of a matter arising out of the said suit, being a Misc. Appeal filed on 20-7-90, wherein, the show cause notice has already been answered by the petitioner, but instead of filing the petition at Jabalpur, the jurisdiction of this Court has been invoked.
16. Shri P.L. Dubey, senior counsel, appearing for the petitioner has placed very strong reliance on certain authorities of this Court to submit that this Bench has jurisdiction to entertain the petition. In Najma Begam v. Mohd. Hameel, 1984 MPWN 105, the order was passed at the principal seat Jabalpur for the transfer of a case pending at Bhopal to Jabalpur, and the authority, therefore, does not help the petitioner in any manner on the question of controversy as the seat at Jabalpur exercises jurisdiction on Bhopal district.
17. Almost, same situation existed in Muni Bai v. Lok Prasad Tiwari, 1989 (1) MPWN 68, as Mandleshwar fell within the specified territory of Indore Bench, where-from the case was ordered to be transferred, to Indore. In Purnima Shrivastava v. San-jeeva Srivastava, 1984 MPWN 570, and in an unreported case of this Bench Smt. Suneeta Bhargava v. Ashok Kumar Bhargava, MP NC 76 of 1990, the cases pending beyond the territorial jurisdiction were directed to be transferred.
18. In the earlier case of Purnima. Shrivastava (supra) the principal seat at Jabalpur transferred the matrimonial case from Gwalior to Jabalpur and in the later case i.e. Suneeta Bhargava (supra), this Bench seat directed the transfer of a matrimonial suit from Shajapur to Gwalior. But in both the authorities, the objection as to the territorial jurisdiction was never agitated, nor this aspect was ever considered and decide. In both the above authorities, the orders of transfer were passed ex parte, and they are distinguishable.
19. The above authorities, therefore, do not come to the rescue of petitioner. In view of the preliminary objection, the merit of the application are not required to be appreciated.
20. On the foregoing discussion, I find my myself unable to accept the contention that this Court has jurisdiction to entertain the petition and direct the transfer of the suit from Bhopal to Gwalior. The argument advanced on behalf of the petitioner that this Court being vested with plenary powers is free to pass an order of transfer in view of the above authorities, may appear to be attractive but is devoid of any substance. It is wrong to think that in the circumstances, while sitting at Bench seat Gwalior a Judge is free to pass an order, commanding the District Judge, Bhopal to transfer the case to Gwalior. In the words of Gardozo: --
"The Judge, even when he is free, is still not wholly free. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primoridial necessity of order in social life."
21. Accordingly, in my view, the petition is not entertainable at this seat and is liable to be dismissed for the want of territorial jurisdiction and is dismissed as such, with no order as to costs.