Writ Petition No. 6433 of 2011 · Bombay High Court

Mr. N.V. Gangal for the petitioners Mr. S.H. Joshi for the respondent no.1 ......... ......... CORAM : R.Y.GANOO, J DATE : 28th SEPTEMBER,2011. P.C. :

Rule. Rule made returnable forthwith. Learned advocate Mr. Joshi waives service of the petition. By consent, petition is taken up for hearing.

The petitioners herein have filed S.C.Suit No.55 of 2009 in the Court of learned Civil Judge, Senior Division, Palghar, Palghar Dist. Thane against the respondents so as to seek compensation to the tune of Rs.48 lakhs onwards. The suit was required to be filed as the husband of the : 2 : 6433-11-wp=.sxw petitioner no.1 expired in the course of his employment with the respondents. The suit came to be filed at Palghar because the cause of action arose at Palghar. The petitioners had no alternative but to institute the suit at Palghar. The suit is presently pending for framing issues. The petitioners in the year 2010 filed Misc. Application No.190 of 2010 for transfer of the aforesaid suit to Thane. The said application was filed in the Court of Principal District Judge, Thane as he could have passed an order of reassigning of the suit to Thane Court in his capacity as Principal District Judge. That application was rejected by order dated 7th April,

2011. The petitioners have approached this Court so as to get an order of transfer.

I have heard learned advocates on both sides. It is noticed that the petitioners have two small children aged about 11 and 4 years. At the time of filing of the suit, petitioners were staying at Thane. They had no alternative but to institute the suit in the Court of Palghar as the cause of action arose there. A request is made for transfer primarily on the ground that the petitioner no.1 has to travel from Thane to Palghar on every date when the matter is on board leaving her children at the hands of some other person. She is also required to spend substantial amount to : 3 : 6433-11-wp=.sxw undertake the aforesaid journey. According to her if the suit is transfered to Thane Court, she would be able to prosecute the case effectively and if dismissal of the suit for want of presence of the petitioners, can be avoided.

This argument of the petitioners was objected by the learned advocate for the respondents on the ground that the Court can transfer the suit from one Court to other, however, such a transfer must be to a Court which is competent to try and dispose of the suit. Learned advocate for the respondent submitted that the competency of the Court must be tested with reference to the monetary jurisdiction as well as territorial jurisdiction. According to him, if the suit is transfered to Thane, the Thane Court shall have no territorial jurisdiction and hence, the order of transfer cannot be passed. I am not inclined to accept this argument. In my view, the word competent to try is required to be interpreted to mean that if the Court comes to the conclusion that such a proceeding is required to be transfered, the Court must see that it is transferred to a Court which will be able to entertain the suit. To that extent the argument advanced by learned advocate for the respondents is rejected. : 4 : 6433-11-wp=.sxw

Learned advocate Mr. Joshi appearing on behalf of the respondents had relied upon the judgment of the Supreme Court in the case of Dav Boys Senior Secondary School & Ors. Vs. Dav College Managing Committee (2010) 8 SCC 401. He drew my attention to paragraph 11 to submit that the ground of convenience or inconvenience cannot be the matter of transfer. He had also read to me the text of paragraph 12. I have perused the text of paragraph 11. The Supreme Court in paragraph 11 has referred to judgment in the case of Kulwinder Kaur Vs. Kandi Friends Education Trust reported in 3(2008) 3 SCC 659. In fact, in the said paragraph 11, the Supreme Court has quoted important observations in the case of Kulwinder Kaur (Supra). The Supreme Court has given points which will have to be considered at the time of entertaining an application for transfer. One such point is balance of convenience or inconvenience to the plaintiff or the defendant or witnesses. The observations in paragraph 11 clearly support the case of the petitioners.

The learned advocate for the respondents had drawn my attention to paragraph 12 and had submitted that mere convenience of the parties cannot be the ground for transfer. In my view, the words of Supreme Court appearing in paragraph 25 are required to be interpreted to mean : 5 : 6433-11-wp=.sxw that the Court should not take things casually for the purposes of passing order of transfer of proceedings.

It is required to be noted that the respondents are a private limited company. The representative of respondents would be able to attend the trial at Thane. Such is not the case of the petitioner no.1 because petitioner no.1 is a widow and she would not be in a position to depute somebody to attend the Court at Palghar. For securing ends of justice, I hold that the suit is required to be transferred.

I have perused the impugned order. The learned Principal District Judge has not considered the facts in the proper perspective. It should have been noted that if the petitioners succeed, in order to execute the decree she will have undertake trips to Palghar. In my view, the impugned order dated 7th April, 2011 requires reconsideration for the aforesaid reasons.