Karnataka High Court
Smt.M.V.Rekha vs Sri.Sathya @ Suraj on 7 June, 2010
Author: S.Abdul Nazeer
Bench: S.Abdul Nazeer
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7 T" DAY OF JUNE 2010 BEFORE THE HON'BLE MRJUSTICE S. ABDUL.._1VAZ.'.?.I£'I€OO'ee..'OO O O CIVIL PET1HONNO.199/M09 O Between: O O Smt. M.V. Rekha, W/o Sathya, -. V Aged about 35 years, . Of No.56, 15' Cross, 3 » Subbanna Garden, Vijayanagara, we -. . ' Banga1ore~40. ____ H O<.;.__ V O' «.___....3'Petitioner. (By Sri M_.':1i1jL1OIO1iiII"g;-.. ' "O And: O O O _Sr.i. Sath,y_iOa @'Suraj, " ~ S/'o_Kri'sh1O1'a%Murt--hy, """" " 'Aged about 40 _ NOo_.__94 7, OPa:1_Ocfi-th 3.' é;y.:1rOa.m Street, South Cross, 3'9'.cm;ss, SivaraO1n_Pet, _ Mysore. OO z O Respondent.
.OOf(13;y., S1:'iOeS-.;«1ni1OOOS. Rao, Adv.) w This Civil Petition is filed under Section 24 of cpc"'prey,ihg__li1' _ to transfer M.C.no.159/2009 on the file of the Principal Farniij,f = Court, Mysore to the 15' Add]. Family Judge at Banga--loi'~e,. ::e.tc."=, = _ This Civil Petition having been heardiliaiid 'iii-esiei~_g2e:i"
Orders, this day the Court pronounced the following:
ORDERVIV"
Srnt. M.V. Rekha has filed this ipetition under Section 24 of the Code of Civil" transfer of M.C.No. 159/2009the're.s'pondentagainst her on the file of the Principa1.Flam.i.ly--Coiirt,_iMys'o.re--~ to the Court of I Additional Family Judge at lB~anl'galor.e. V C is the case=ofvthe__oetitioi1er that she was married to the 'l1~'C'S£"(3:l'Vl'd.§f%I'1l; at Bangalore. After her marriage, she was resildi=nlg'--..i'r:llhelff.1na.trimonia1 home at Mysore along with the respondent, As the days passed, the respondent started harassing lit her without any justification. Therefore, she was forced to lodge a complaint against the respondent under Section 498-/X read Section 506 of the Indian Penal Code, which was reg_iste'redf Crime No.40/2005 in the Mahila Police Station,~l'v'Iys:ore;'*i.}l'l1_e; '' elders of the family compromised the niatter:_-and the irespoindernt at shifted his residence to Bangalore.«.___Evengat l3a;.1gal.ore_,_H the V respondent started harassing her on He is having illegal relationship having any other alterrlativegshe petitio_niiii.fo_ridissolution of the marriage under Marriage Act in M.c.No.5'5'9/2_oo§V'brafaa§ma'/aadi. Family Judge, Bangalore.
3. After servicew.of"st1:niii£_)nsVin the said case, the respondent _ has filedithe.petition. tinder Section 9 of the Hindu Marriage Act in the file of the Principal Family Judge at l\/l'ySore_« sie'el§{ivng'restitution of conjugal rights. It is further contended that" 'she is residing at Bangalore and is working in a ii"ii"vpriv'ate4_conipany on a monthly salary of Rs.3,000/~. She cannot la st travel to Mysore to attend the case filed by the respondent,..Vit-_is1__ further contended that the respondent has threatened :_. ' attends the Court at Mysore, he will malge her .li"I'e= Therefore, the case filed by the respond~ent..:'requires'" to"i:b--e transferred to a Court at Bangalore.
4. Respondent has not filed statenéent of iiobjeictionshito the petition. ._ y _ I V _ _ _
5. Learned Counsel for the petitione1:_>VwAo:uVld_1.contend that after the marriage; the has been harassing the petitioner on one pretext. or 'the' A:.other.._y_1i3eeause of the harassment, the petitioner had to 'eoinewto her parents house at Bangalore. She has sought'e*--diss}--olutilon of herminarriage with the respondent on the greuha er e:i€u--ehy?hh'iV1i.1yi.c.Ne.559/2009, which is pending before the it First Afhddl. Judge, Bangalore. The respondent has filed a he '.'::.".4"'--petition aM.C.No.l59/2009 against the petitioner seeking ryeistitution of conjugal rights after service of notice in the case filed E W , afi""m-°'"
by her for divorce. In order to maintain herself and her she is working in a private company on a monthly.§:sala1*yf*of Rs.3,000/--. She cannot travel to Mysore toflagttend the"case'_~f1iled hy the respondent. She was threatened by:'»her::'l1u.s:barid_Vthat iiifi:sh.e comes to Mysore, he will make het'life__rniserahle. It in both the cases, the questions of and interdependent. They should"--..he_triedQrder to avoid conflict of decisions.v."ifheref£o1'e;:..l§it'e respondent against the petitioner he.:.tra._risferred:itoiBangalore.
6. the Counsel appearing for the respondent siibnutiedii .t_hat_ cause of action for filing of has «a.r_i__$cn within the territorial jurisdiction of Ea'tnily'--v Mysore. The said case cannot be transferred to a Faniiiy Court at Bangalore because the Family Court at ' Bangalore isvnot competent to try the same. It is further argued that casecannot be transferred on the grounds urged in the petition. .___l'He prays for dismissal of the petition. it i 13%;'
7. Having regard to the contentions urged, the question for consideration is whether the case filed by the respondenttgincg M.C.No.l59/2009 under Section 9 of the Hindu requires to be transferred to the Court of I it Judge, Bangalore?
8. Section 24 of the Code of Civi1;i"l?roc_edi1reZproividyes the general power of transfer and wiithdrawal of the sr1,jts',,af)--;§e'al"or other proceedings. The relevant provis'ion"g_:isSsub--section»{1A)(b) of Section 24, which is as under: it 'A "Section fewer of transfer and witha'rar12al:i (lg)i'Q13._ii'th.e:"'application of any of the parties andyiafter inotice:to...i~the parties and after hearing of theri1"'a,s:vdes&it'e to be heard, or of its own vtiithout such notice, the High Court or the _Dii'str,iCt.._couirt. at any stage-
" A (a) xxxxx xxxxx r'{@ 2'
(b) withdraw any suit, appeal or other proceed.i.ng_&» pending in any Court subordinate to it, and-
(i) try or dispose of the same; or, ._ '
(ii) transfer the same for trial or Court subordinate to and cornypetent toyti-'yljolr 2 dispose of the same; or it n V
(iii) retransfer the saifne forr--tria:I'vor"disposal 'to.
Court from whichit was
9. The section confers gef1eral'.'poWer--'«to' withdraw and transfer suits, or"other'procee'di--ngs.at any stage on the application of _a_lpalrt3,{._iVf_Il:l1e of the High Court and District Judge are concurrent. The Cot1'rt_ rnay also exercise the power suo motu. "fine" section "postulates that the Court to which the suit or in 'V.Vappeayl_plo1' other proceeding is transferred should be competent to try ortdisprise Voflilthe sarie. The contention of the learned Counsel for V the respon~dent that the cause of action for filing of
-ll1Vl.i,:C.No'.15972009 has accrued at Mysore and that the Family Court ._at Bangalore is not competent to try the said case. In other Words, it the Family Court at Bangalore has no territorial jurisdiction to try the case. Therefore, the question for consideration is whether unr_le"ra. Section 24 of the Code of Civil Procedure, a case can be t_1jansfer~r..e:dl5 _.__ if i from a Court where it was instituted and cornpetentto.try.and:'has territorial jurisdiction to try the case, to some...other--,Cour't, ivvhich f does not have territorial ju1*isdiction».'The cause of action' implies ija V right to sue. The material facts the} suitor to allege and prove constiti-..1._t'e:y~." 'The point involved in this caSe,_is a pure.:.qu.estion1 its decision depends upon :~ivd}d$r...r,éOmpetent [0 try, occurriiigin S::ction"V1Z4l(..l:)'the'€ode' of Civil Procedure.
10. lfuthey words ..¢entainedi"'in Section 24 are to be taken literally5,'i--t rnight imopen to argument that the word 'competency' includes boil; pecuniary and territorial jurisdiction. It is necessary that the pCo1,41:'rt._tV0 vv-hich the case is transferred must have territorial C if _ jurisdi'ction_;" would make it impossible for a High Court to transfer . af'case_penid--ing in the Court of a District Judge to that of a District E ii Judge of another District. Keeping this in mind, the Courts have interpreted words 'competent to try' occurring in Section 24(l')h_iof. the CPC referring only to pecuniary jurisdiction. In AND ANOTHER VS. HABIB ULLAH ' @933 it ALLAHABAD 178, a Division Bench of the Alliahabad':¥lig--h4'Coiigrtii, i if held that a Court is not competent to try and ._dispose if does not possess both pecuniary _territoriai~-- iurisidictiton to entertain it. This decision 'rendered. 'Diyision "Bench on l6.4.l93E. I-Iowever, a sub.seCfu'ent'iidecision iin:i..'K!i§HORE LAL vs. BALKIsHAA%j"g';m_g 1932 _A"IsLi%i.H}lil;?A*B": 660 (decided on 16.6.l932:);.Chief gave reasons for reconsidering the previous View" andi'holdin'gs:that territorial jurisdiction does not come wi-thinithe meanitngof the words 'competent to try' occurring Ctin 'Section of and that they must refer only to pecuniary juriisdjihctiorii decision of the Allahabad High Court has been 'consisteintly"vfollowed by various High Courts. It is to be noted here C' th'attlie' territorial jurisdiction can be waived because it does not go __ "to the root of the case whereas competence of the Court to try the 5 5 raid st 10 case goes to the very root of the jurisdiction and refers vto7'._t_h'e. inherent lack of jurisdiction by the Court. in this conne_ct'i'on; relevant to note the observations of the Apex it PATNI VS. KALINA TH -- AIR 1962 SC 199, ixvhifchiis hasiunderr-.i,,_'__V C 7 "It is well settled that the ob'jection_VV as to fiocafi jurisdiction of a Coui{..,.doe3«"eiiotV' st.an.dC"on the statue footing as an objection to the co.nipetencevi'cfv'a'Court to try case. The competence' Vtrypacase goes to the Veryi._.:vroot'e'i' gf jurisdiction; where it is lacking, itis j:ackV"gf'jurisdiction. On the :ot'hér'hgii;dv, anigobjecstiion as this local jurisdiction of a'C_ourt can be:'fwaived}:'._g "
judgment" of the Apex Court supports the view that the Acompetegnce case refers to the inherent jurisdiction to try and n.ot'--f.or teIri'toria=I'jurisdiction. it Full Bench of the Madras High Court in <it¥.iu2i,1§1iIAVAN UNNI VS. MJAYAPANDIA NADAR -- AIR 3;:
11
I973 MADRAS 2, was considering a similar question. It has been held as under:
"Next, to restrict the meaning of the words cornpetentf I to try or dispose of the same-"'us'ed in S_.ecjtion V' A 24(l)(b)(ii), Civil Procedure C:0de1'_"to" te1<rito.ri'alpx jurisdiction over the property' theiijudigmenta. or the residence qualificationiofijtiie judgVi'nen'tedebte_r wouid lead to grave vanoma1ics"'and'taiiure ofijustice. Thus, if the presidingdoiifi-cei' Court happens to thejudgments-debto'i---.hivmsieif "owns the property in;'his"t;f.u1*isdi?:tion "whi"chV.Vis-K 'being proceeded agaiinst, ta3..<:e'n_a prejudicial attitude to one party; and "a ground for transfer of the execution-«.proeeed_ing«,_iiitvwill be impossibie to transfer 'V execution"'--proceeding to any other subordinate the restricted meaning above sought to be competency is to be accepted. It C' that the word competency used in the V above Section cannot be used to restrict the power of 'A : the District Court or the High Court under Section 24, V' *».C.i5vi1 Procedure Code to transfer the execution proceeding only to a Court which has territorial {$9 13 Section 24, an impossible situation is created, then the Court shall have to interpret the word in such a way that it may not bottlenecks for the Court to function under certain V' The Court further heid that the District 3?.-'tdgc--presiding:j'overjjthe', District Court of Jaipur District was cornpetentiito de'a.lA.wijt11. execution proceedings in this case Wrienthey were dti.1y*'_:1*ar;:sfer1'eld under the orders of the High Court. j ~ ~ l3. In MULRAJ DOSfII.7'VS. SINGHANIA .. AIR 1982 ORISSA .191, the/'Gf.i<tS'Et Hi.gh__Co'urt.'jhasl.he1d that the Words 'cornpetent .to'jttj/'7._ittcj1.uded'----in Section 24 of the CPC refers to pecuniary ju1*i_sdiction_and_ notterritorial jurisdiction. 145»; »It_ is clcarifrom the above discussion that the words tfy.7j_.includlediiin Section 24(1) of the Code of Civil Procedure -refer to territorial jurisdiction. The High Court V V or the "£)istri_'ct' Judge can transfer a case under this provision to a H 'Co'urt,_whic'h "need not have territorial jurisdiction over the subject 'i it 62' 14 matter of the litigation if the transferee Court is otherwise competent to try it. If that is so, there is no bar for this Courttog transfer the case filed by the respondent seeking restitntionlyli'(sin conjugal rights in M.C.No.]59/2009 pending on the Principal Family Court at Mysore to the First-:An1tiiti_onaii"
Family Judge, Bangalore. _ _ A _ A A l5. The cardinal principle foijl"'e_xercise.__of .povver_i1'iider Section 24 of the Code of Civil Proce--dtir_e. is-.that endsv..of.vjEt1stice demand the transfer of the liprliceeding. In matrimonial rnatterslg 'tvi1ereve'i'--tC'(';nrts' are called upon to consider the plea of tra"ns_'fer,V the,Cot_1rtsr:l_have to take into consideration the ~' V.econo_mic soiundnessof. either of the parties, the social strata of the C'-sp'ot1se3,anti_behavioura1 pattern, their standard of life antecedent to marriage' and siijhsequent thereon and the circumstances of either of g the parties in.._el<ing out their livelihood and under whose protective n_'rnhrel'l--ag they are seeking their sustenance to life. Generally, it is ___""thel'wife's convenience which must be looked at while considering ll Q 15 transfer. Further, when two proceedings in different Courts whiychy raise common question of fact and law and when the decisions are "
interdependent, it is desirable that they should be tried..together'*by it the same Judge so as to avoid rnuitiplicity in trial' s'arne_ issues' A _ y and conflict of decisions {See V.smr.NA2vr_)}t-- KISJHGRI :VS}; S.B.SHIVAPRAKASH --. AIR 1993 rrkrréizyiayrarna ';§7;V':Sl'J:MITA SINGH VS. KUMAR SANJA/fir' & earn H2902 SC 396, and Smt.SWARN_A G0tIRi_ "V1NA'i'A'K PUJAR --
ILR 2007 KAR "
16.:in the instai1't:'case,"tt1e_. "petitioner is residing at Bangalore with her parerits_,!iSheVhasVto her two chiidren. Therefore, ..--she is_~"*{22zor1{ir1g in'a"-rpr__i_y_ate company on a monthly salary of contended that the respondent is threatening her of d:ire'cofisequencesriaif she Visits Mysore to pursue the case fiied by him seeking restitution of conjuga} rights. She does not have siifficietat income to travel to Mysore to pursue the said case. The ' _.__''''r'esnondent is not giving any maintenance to the petitioner or to her ?
'~59 '£6 children. He has not sought transfer of the case filed petitioner for divorce at Bangalore to a Court at Mysore.__lfle'liasV---to": :_. ' come to Bangalore to attend the said case. the case' ';i'ile§i~ is transferred to Bangalore and clubbed along with itheeaeaseifiledi :3 Al the petitioner will not make any differe.nee fioi~.hi1n.V case filed by the petitioner for for consideration is whether the peiltiorier with cruelty by the respondent. In the seeking restitution of iiyhether the petitioner has withdrawn olirespondent without there bang in both the cases are interdependent} ffhevrelioreii,'Abothithe cases should be tried together «so as tstfpavoiti multipii::itt_y___o{' trial of the same issues and to avoid ";o'1iflict. of--vde'eisioiis,__In the light of the above di_scussious, I am of the yieiwithat filed by the respondent in M.C.No.i59/2009 'O1? Ehe file the Principal Family Court, M3/Sore requires to be tran:sferi=ed to the Court of First Additional Family Judge, ..._ii'Baniga1ore.