Gauhati High Court
Pranami Dutta Mazumdar vs Prasanta Kumar Choudhury on 29 July, 1994
Equivalent citations: I(1995)DMC411, 1995 A I H C 3578
JUDGMENT J.N. Sharma, J.
1. This application under Section 24 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure has been filed by the wife Smt. Pranami Dutta Mazumdar praying for transfer of Title (Divorce) Suit No. 1/94 from the Court of the District Judge, Dibrugarh to Guwahati. The brief facts are as follows:
2. The petitioner and the Opp. party were married on 9.12.92 at Guwahati according to Hindu Rites. The marriage was negotiated one. That there arose misunderstanding and clashes between the parties and the petitioner tried to come back to Guwahati from Dibrugarh. The petitioner was expecting that her husband would come to Gauhati and take her back but the husband did not turn up. In the meantime, the petitioner has got herself admitted in a computer course in Delhi where at present she is studying. That the husband filed a Title (Divorce) Suit No. 1/94 in the Court of the District Judge, Dibrugarh. praying for the dissolution of the marriage under Section 12 of the Hindu Marriage Act. Necessary notice was served on the wife i.e. present petitioner. The petitioner states that it will be extremely difficult for her to attend the proceeding in Dibrugarh. Further, the marriage was solemnised in Gauhati and the petitioner also resides in Guwahati with her parents and as such she prays that this case may be transferred to Gauhati.
3. An affidavit-in-opposition has been filed on behalf of the opp. party, husband wherein he has stated that he is employed in a Tea Estate in the District of Dibrugarh and is working there. The father of the opp. party is the General Manager of Segunbari Tea Estate at Margherita in the District of Tiusukia. The house of the opp. party at Satipur has been let out. The other allegations in the application are denied and he prays that the transfer application may be rejected.
4. Section 19 of the Hindu Marriage Act, 1955 provides for the Court to which petition shall be presented. Section 19 is quoted below :
"19. Court to which petition shall be presented.--Every petition under this Act shall be presented to District Court within the local limits of whose ordinary original civil jurisdiction--
(j) 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
(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 or being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive,"
A bare reading of Section 19 will show that the Court at Dibrugarh has the jurisdiction to try the matter but the question is that whether the power should be exercised under Section 24 to transfer this case to Guwahati.
5. It is settled law that the transfer should not be ordered for reasons of sentimentality and the balance of convenience of all the parties and the witnesses, if any, must be considered. A transfer cannot be ordered merely to serve the convenience of the defendant. The convenience of both the parties is one of the factors to be taken into account. The The plaintiff in a suit usually is the "dominus litis" so the Forum choosen by the plaintiff should not usually he changed unless compelling circumstance demands it.
6. I have heard Shri G.K. Bhattacharjee, learned Advocate for the petitioner and Shri D.N. Choudhury. Learned Advocate for the opp. party respondent.
7. The law is settled that in passing an order of transfer, the search should be for justice and the Court must be satisfied that the justice could more likely to be done between the parties by refusing to allow the plaintiff to continue his suit in the forum of his choice. The onus of establishing sufficient ground for the transfer lies heavily on the applicant. Preponderance of balance of convenience is of prime consideration for transfer of suit.
8. Shri Choudhury, in this connection places reliance in AIR 1979 SC Page 1514 (Indian Overseas Bank, Madras v. Chemical Construction Co. and Ors.) wherein paragraph 16, the Supreme Court pointed out as follows:
"The principle governing the genernl power of transfer and withdrawal under Section 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 the proceedings in another Court, albeit a material consideration may not always be a sure criterion justifying transfer."
After hearing the learned Counsel of both parties and on perusal of the materials on record. I am not satisfied that a case of transfer has been made out.
9. Accordingly, this application stands rejected.