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Calcutta High Court (Appellete Side)

762/2012 on 19 June, 2012

Author: Tapan Kumar Dutt

Bench: Tapan Kumar Dutt

                                                 1

.06.12
skp.
                        C.O. 762 of 2012


               Mr. Sabyasachi Bhattacharyya,
               Mr. Anirban Tarafder       ... for the petitioner.

               Mr. Gopal Ghosh     ... for the respondent/opposite

party.

The wife-petitioner has filed the present application under Section 24 of the C.P.C. against the husband-opposite party praying for an order of transfer of the Matrimonial Suit no. 147 of 2011 pending in the Court of the learned Additional District Judge, 7th Court, at Barasat, North 24-Parganas to the Court of the learned District Judge at Alipore or to any other competent Court at Alipore.

It appears that the husband-opposite party filed Matrimonial Suit no. 1192 of 2011 against the wife-petitioner praying for restitution of conjugal rights and such suit has been re-numbered as Matrimonial Suit No. 147 of 2011 and is pending before the learned 7th Additional District Judge, Barasat. The wife- petitioner has filed Matrimonial Suit no. 2671 of 2011 before the learned District Judge at Alipore wherein she has prayed for dissolution of the marriage between the parties.

The learned Advocate for the wife-petitioner has submitted that both the wife-petitioner and the husband-opposite party resides within the jurisdiction of Police Station Survey Park, District South 24-Parganas. It appears so from the 2 cause title of the application. The said learned Advocate has submitted that since both the parties are residing in the same area, which is close to Alipore Court, it is only fit and proper for both the suits should be tried together by the same Court at Alipore.

The learned Advocate appearing on behalf of the husband-opposite party has submitted that there is a dispute with regard to the residence of the wife- petitioner as according to the said learned Advocate, the wife-petitioner has a residence at Barasat and it is not correct to say that the wife-petitioner is residing at Survey Park, Kolkata. The said learned Advocate further submitted that the two suits are in different stages and therefore, the prayer for transfer made by the wife-petitioner should not be allowed. The said learned Advocate also submitted that the wife-petitioner has her practice as a Psychiatrist at Barasat and therefore, it cannot be convenient for the wife-petitioner to have the suit filed by the husband transferred to Alipore. The said learned Advocate cited an order of this Court dated 14th September, 2010 passed in C.O. 2538 of 2005 in support of his contention that the prayer for transfer made by the wife- petitioner should be rejected.

On perusal of the said order dated 14th September, 2010 passed in C.O. 2538 of 2005, it does not appear from the said order that both the parties have been residing in the same area. Thus, factually the said case is quite different from the facts of the instant case.

This Court is of the view that the said order dated 14th September. 2010 cannot be made applicable to the facts and circumstances of the present case. This Court is unable to appreciate the argument made by the learned Advocate for the husband-opposite party to the effect that since the wife-petitioner has her residence at Barasat, it cannot be convenient for the wife-petitioner to attend any suit at Alipore. There is no dispute with regard to the fact that the husband- opposite party is having his residence at Survey Park, Kolkata as it has been clearly stated in the cause title of the Matrimonial Suit filed by the husband- opposite party that his residence is at Survey Park, Kolkata. Even though in the same cause title the husband-opposite party had described the residence of the wife-petitioner as at Barasat, it appears from the written objection of the wife- petitioner in the said suit that the wife-petitioner has described her residence as at Survey Park, Kolkata. Such facts will appear from the annexures to the present application under Section 24 of the C.P.C.

On perusal of the documents on record it appears that both the parties are having their respective residence at Survey Park, Kolkata and even if, assuming for the sake of argument, the wife-petitioner has a residence at Barasat and the said wife-petitioner wants to have an order of transfer of a certain suit from Barasat to Alipore, it cannot cause inconvenience of the husband-opposite party since the husband-opposite party's residence is close to Alipore at least, closer than Barasat.

Thus, on the ground of residence of both the parties as it would appear from the materials on record, this Court is of the view that it will not be inconvenient for both the parties if the Matrimonial Suit is tried in a competent Court at Alipore.

The learned Advocate for the husband-opposite party submitted that the opposite party's suit at Barasat is in the peremptory stage of hearing but the learned Advocate appearing on behalf of the wife-petitioner has drawn the attention of the Court to the statement made by the wife-petitioner that the husband-opposite party has already filed an application for amendment of the plaint in his suit and has also made an application for taking off the suit from the peremptory board. He has referred to the relevant annexures in this regard. That apart, there cannot be any dispute that common questions of facts and law are involved in both the suits and it is only fit and proper that both the suits should be tried by the same Court to avoid conflict of decision and multiplicity of proceedings.

In the aforesaid circumstances, the application under Section 24 of the C.P.C. is disposed of by directing that the Matrimonial Suit no. 147 of 2011 pending in the Court of the learned 7th Additional District Judge at Barasat, North 24-Parganas along with the records be transferred to the Court of the learned 16th Additional District Judge at Alipore where the Matrimonial Suit no. 27 of 2012 filed by the wife-petitioner is pending. After such transfer takes effect, the learned 16th Additional District Judge at Alipore shall take up for hearing of 5 both the suits together and dispose of both the suits in accordance with law as early as possible.

Let this order be communicated to the Court of the learned 7th Additional District Judge at Barasat, North 24-Parganas and also to the Court of the learned 16th Additional District Judge at Alipore, South 24-Parganas by Special Messenger and the Special Messenger cost for such purpose shall be put in by the wife-petitioner within one week, as prayed for by the learned Advocate for the wife-petitioner.

The affidavit-in-opposition and the affidavit-in-reply and also the affidavit of service filed in Court today by the learned Advocate concerned be kept on record.

Urgent certified xerox copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.

( Tapan Kumar Dutt, J. ) 6