Calcutta High Court (Appellete Side)
Smt. Moumita Das (Roy) vs Sri Indrajit Roy on 12 December, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 12.12.2019
suman 15 Ct.17 C.O. 1792 of 2019 Smt. Moumita Das (Roy) Vs. Sri Indrajit Roy Mr. Shuvanil Chakraborty ...for the petitioner Mr. Indranath Mitra Mr. Neil Basu ...for the opposite party In an application under Section 24 of the Code of Civil Procedure the wife/petitioner has prayed for transfer of Matrimonial Suit No.252 of 2019 from the 1st Court of the learned Additional District Judge, Serampore to a Court of competent jurisdiction at Malda. It is stated by the petitioner that her marriage with the opposite party was solemnized on 29th November, 2012. After marriage, she went to her matrimonial home but her marital life was not happy. She was subjected to harassment, physical torture and mental agony. Finally, the petitioner was deserted by the opposite party and she is compelled to take shelter at her paternal home at Malda. The opposite party filed a suit for divorce being Matrimonial Suit No.252 of 2019 in the 1st Court of the 2 learned Additional District Judge at Serampore. It is alleged by the petitioner that the petitioner will suffer great inconvenience if she is compelled to take journey from Malda to Serampore to contest the said suit. It is also alleged that distance between Serampore and Malda is about 300 kilometres in one way and the petitioner will have to travel 600 kilometres in both ways if she is compelled to attend the Court of the learned Additional District Judge at Serampore to contest the said suit. Therefore, the petitioner has prayed for transfer of the said suit invoking the provision under Section 24 of the Code of Civil Procedure. The opposite party has filed affidavit-in-opposition against the said application filed by the petitioner. In the affidavit-in-opposition he denied all allegations made out by the petitioner against him. It is specifically stated by the opposite party that he is a medical representative by profession and at present he is posted as Area Sales Manager. His job commitment is such that he requires to travel throughout West Bengal including Malda. However, it is possible to conduct the suit instituted by him on the ground that he is the only son of his parents and there is no other person to look after his parents. Moreover, as he requires to visit different places in the State 3 of West Bengal, it is not possible due to his job commitment to attend Malda Court to contest the suit.
The learned advocate for the petitioner at the out set of his submission draws my attention to a copy of the plaint of Matrimonial Suit No.252 of 2019. In paragraph 5 of the plaint the opposite party clearly stated that Malda was under his working jurisdiction and he had to go to Malda very often for his job requirement. While he used to visit Malda, he was acquainted with the petitioner. A love relationship grew up between them which culminated in marriage. The opposite party also averred, "still today the petitioner had to go to Malda for his job". Thus it is contended by the learned advocate for the petitioner that when the opposite party specifically averred that even these days he required to visit Malda for his job commitment. There would be no inconvenience on the part of the opposite party if the suit is transferred to Malda. In support of his contention learned advocate for the petitioner refers to a judgment of the Hon'ble Supreme Court in Krishna Veni Nagam vs. Harish Nagam reported in AIR 2017 SC 1345. Learned advocate for the petitioner also draws my attention to an unreported decision of this Court passed on 7th November, 2019 in C.O. 3919 of 2018 [Piyali Dey (Choudhury) vs. Amit Kumar Choudhury]. In the 4 said case this Court transferred a Matrimonial Suit from Burdwan to Alipur on the ground that admittedly the husband/opposite party used to work for gain at Baruipur. Learned advocate for the petitioner also invites the Court to consider ratio of the decision of the Hon'ble Supreme Court in Rajani Kishor Pardeshi vs. Kishor Babulal Pardeshi reported in (2005) 12 SCC 237. Learned advocate for the opposite party, on the other hand submits that there is no reason to transfer the Matrimonial Suit from Serampore to Malda on the ground that the opposite party occasionally visits Malda for his job commitment. The opposite party stays generally at Serampore. His parents are staying with him. He is to look after his ailing parents who need frequent medical check up and care. Moreover, both the petitioner and the opposite party lastly stayed together within the jurisdiction of Serampore Court. Therefore, Serampore Court has initial jurisdiction and accordingly the suit was filed at Serampore.
Learned advocate for the opposite party draws my attention to the averment made by the opposite party in his affidavit-in- opposition and submits that the brother of the petitioner has a residential flat at Behala. The petitioner can very well stay at Behala and contest the suit at Serampore Court. Though the learned advocate for the petitioner has urged that the brother of 5 the petitioner was transferred to Mumbai and nobody resides in his flat at Behala, the petitioner can have conveniently used the said flat for her temporary stay. It is further submitted on behalf of the opposite party that he undertakes to bear the travelling expenses of the wife/petitioner as and when she would travel from Malda to Serampore to attend the Court proceedings. He is also ready to bear the expenses of her stay in a moderate accommodation at Serampore nearby area. In view of said undertaking given by the opposite party, according to the learned counsel, the said matrimonial suit cannot be transferred and the application for transfer is liable to be dismissed. In support of his contention he refers to Kalpana Deviprakash Thakar (Smt.) versus Dr. Deviprakash Thakar reported in (1996) 11 SCC 96. On the same point he further refers to the decision of the Apex Court in the case of Anindita Das versus Srijit Das reported in (2006) 9 SCC 197.
Relying upon another decision of the Hon'ble Supreme Court in Kulwinder Kaur alias Kulwinder Gurcharan Singh versus Kandi Friends Education Trust and others reported in (2008) 3 SCC 659 it is submitted by the learned advocate for the opposite party that the discretionary power of the Court to transfer cases should be exercised on due care, caution and 6 circumspection. It is not a straight jacket formula that only the inconvenience of the petitioner is the determining factor in the matter of transfer of cases. On the contrary, balance of convenience and inconvenience of both the parties are required to be looked into for proper adjudication of the proceeding under Section 24 of the Code of Civil procedure. Last but not the least it is submitted by the learned advocate for the opposite party that if the Court thinks that the instant suit is required to be transferred at all from Malda, it is open for the Court to transfer the same to a Court of competent jurisdiction in between Malda and Serampore so that one of the parties may not face greater inconvenience than the other.
Having heard the submission made by the learned advocates for the petitioner and the opposite party and on perusal of the application, affidavit-in-opposition and the decisions placed by the learned advocates for the parties, approach of the Court while deciding an application under Section 24 of the Code of Civil Procedure should be to consider relative convenience and inconvenience of both the parties and while considering such aspect of the matter involving judicial discretion it must be complied with due care, caution and circumspection. The need or requirement of transfer of a case from one Court to another 7 depends upon various aspects that varies from case to case and no authority of the Hon'ble Supreme Court or the different High Courts can be accepted as a binding precedent adjudicating the field of transfer of a case. It is a fact that the petitioner will suffer inconvenience if she is compelled to travel a distance of about 300 kilometres from Malda to Serampore. This Court is also not unmindful to note that Malda is not the ordinary place of posting of the opposite party. The opposite party travels through the length and breadth of the State of West Bengal for his job commitment. I am in agreement with the learned advocate for the petitioner that during his official visit his parents are to live alone without their son.
Considering the rival submissions made by the learned advocates for the parties and case and counter case as well as the decisions cited by both the learned advocates in support of their respective cases, I am inclined to accept the proposal of the learned advocate for the opposite party that both the parties will not suffer any inconvenience if the matrimonial suit is transferred to a place in between Serampore and Malda.
I consider that Berhampore in the district of Murshidabad will be the best-suited place where both the parties can conveniently conduct the suit.
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Accordingly, the application under Section 24 of the Code of Civil Procedure is allowed on contest, however, without costs. Matrimonial Suit No.252 of 2019 pending in the 1st Court of the learned Additional District Judge, Serampore be transferred to Berhampore Court in the district of Murshidabad for trial and disposal.
Office is directed to send copy of this order to the learned Additional District Judge, Serampore and the learned District Judge, Murshidabad for information and compliance of this order forthwith.
Urgent photostat certified copy of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Bibek Chaudhuri, J.)