K.Saravanan v. M.Chitra

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.01.2009CORAMTHE HONOURABLE MR. JUSTICE M.VENUGOPALTransfer C.M.P.No.285 of 2008K.Saravanan ..Petitioner/Petitioner VersusM.Chitra ..Respondent/RespondentTransfer Civil Miscellaneous Petition is filed to pass anorder of direction, directing the transfer of I.A.No.16/2008 inH.M.O.P.No.106/2007 on the file of the Sub-Court, Thirupathur, tothe file of G.O.P.No.14/2008 before the District Court, Vellore andaward costs. For Petitioner : Mr.S.AyyaduraiFor Respondent : Mr.S.MuthukumarORDERThe petitioner/husband has filed this Transfer C.M.P.285 of2008 before this Court praying for issuance of an order to transferthe I.A.No.16/2008 in HMOP.106/2007 from the file of the Sub-Court,Thirupathur, to the file of the District Court, Vellore, whereG.O.P.14/2008 is pending.2.The petitioner herein is the husband. The respondent isthe wife. The marriage between the parties has taken place on30.08.2001 and they have been residing at ViswareddipalayamVillage, Radhapuram Post, Villupuram Taluk. As a result of thewedlock, the respondent/wife has given birth to a female child,Yamuna, who is aged 7 years.3.The averment of the petitioner/husband is that therespondent/wife used to spend money to her parents house withoutthe knowledge of the petitioner and on questioning, she picked upquarrel with him for no reasons and on 13.10.2004, she took thechild and went to her parents house without informing him andinspite of several panchayats, she did not return to his house andfurther that she filed HMOP.93/2004 on the file of the Sub-Court,Villupuram for the relief of restitution of conjugal rights and hehas been called on 23.10.2004 by the Station House Officer of AllWomen Police Station, Thirupathur on a complaint given by his wifefor dowry harassment and later, she agreed to return back to thematrimonial house and in HMOP.93/2004, an ex-parte decree has beenpassed on 2.2.2005 for restitution of conjugal rights since his https://hcservices.ecourts.gov.in/hcservices/ wife has been set ex-parte on account of her absence and later hehas filed HMOP.45/2006 on the file of the Sub-Court, Villupuram fordivorce and the same has been transferred to the Sub-Court,Tirupattur by an order of this Court dated 10.01.2007 made on theTr.C.M.P.298/2006 filed by the wife and that he has filedGOP.47/2007 praying for the custody of the child, his daughter fromhis wife before the District Court, Villupuram and that his wifefiled Tr.C.M.P.No.502/2007 for transferring the GOP.47/2007 to theSub-Court, Tirupattur and after contest, this Court has passed anorder in Tr.C.M.P.502/2007 on 6.2.2008 directing the transfer ofthe said G.O.P.47/2007 to the District Court, Villupuram havingjurisdiction over the matter and the said GOP on transfer has beentaken on file by the District Court, Vellore.4.That apart, the respondent/wife has filed an I.A.16/2008in HMOP.106/2007 before the Sub-Court, Thirupathur praying for asum of Rs.10,000/- towards maintenance of the 7 years old child, tobe paid by the husband and that the respondent/husband has filedI.A.16/2008 in April, 2008 praying for maintenance to her child andthat she ought to have filed the same before the District Court,Vellore having jurisdiction over the GOP.14/2008. But she hasdeliberately filed the same before the Sub-Court, Tirupattur in theHMOP proceedings, with a view to protract the proceedings and theproper forum for deciding the I.A.16/2008 for maintenance is theDistrict Court, Vellore having jurisdiction over GOP.14/2008 filedfor the custody of the child by the petitioner/husband andtherefore, the application for transfer may be allowed by thisCourt in the interest of justice.5.The respondent/wife has taken the stand inter aliastating that the petitioner/husband has filed HMOP.93/2004,HMOP.45/2006 before the Sub-Court, Villupuram and GOP.47/2007before the District Court, Villupuram, Cr.M.P.962/2007 before theJudicial Magistrate, Villupuram and Crl.R.C.29/2008 before theDistrict Court, Villupuram and that she will be put intoirreparable loss and hardship to attend the court at Vellore withher child and that the petitioner/husband has not shown any reasonto transfer the I.A.16/2008 from the file of the Sub-Judge to thefile of the District Court, Vellore and that the petitioner/husbandhas not participated in the enquiry/trial of HMOP and dragging onthe same and therefore prays for dismissal of the transferpetition.6.It is to be noted that the guiding principle of dealingwith an application under Section 24 of CPC is that the petitionought not to be dealt with in a light fashion and transfer of acase from one court to another should not be granted readily forany whimsical reason of the petitioner. For the purpose oftransfer, the balance of convenience of the parties shall beconsidered. A Court of law is to find out whether a particularparty has chosen a forum in utter disregard to the convenience ofthe parties for some ulterior object and in abuse of his positionas an arbiter litus. The exercise of the powers under Section 24is the convenience and inconvenience of the parties. The aspect of https://hcservices.ecourts.gov.in/hcservices/ expediency will depend upon the facts and circumstances of eachcase. But the prime consideration for exercise of that power mustbe to meet the ends of justice. The prime consideration is thatjustice according to law is done. In transfer of matrimonialpetitions, generally the convenience of the wife will be taken noteof. As a matter of fact, the inconvenience or difficultyvisualised under Section 24 CPC for transfer of a case should be ofsuch nature which may lead to injustice, if an individual is askedto continue the trial at a place, where it has been laid or whenthe court comes to the conclusion that the proceedings has beenfiled in a particular court for causing injustice. Indeed inregard to the transfer of a case from one Court to another, therelevant consideration is failure of justice and therefore, a caseis to be made out that the party has a reasonable apprehension thatjustice will be denied to him.7.It cannot be gainsaid that in Tr.C.M.P.298/2006, dated10.01.2007, this Court has inter alia directed the transfer ofHMOP.45/2006 pending on the file of the learned Sub-Judge,Villupuram to the file of the learned Sub-Judge, Tirupattur andalso directed the learned Sub-Judge, Thirupathur to dispose of theHMOP.45/2006 within a period of three months from the date ofreceipt of a copy of that order.8.In the High Court's Roc.No.2065/85-F1 in P.Dis.No.101/85,dated 17.06.85, the Subordinate Courts have been informed thatwhenever a direction has been issued by the High Court, theSubordinate Courts concerned,1.should dispose of the proceeding pending on their filewithin the time specified in the order of the High Court and reportthe fact to the High Court immediately after disposing of theproceeding concerned; 2.and should make a request to the High Court for extensionof time for carrying out the direction well in advance with thedate specified in the order of the High Court, stating the reasonstherefor and the further time required, if for any reason theSubordinate Court concerned is not able to comply with the order ofthe High Court within the time specified and further that all theSubordinate Courts have been informed that any lapse or delay inthis regard will be viewed seriously.9.Admittedly, I.A.16/2008 in HMOP.106/2007 on the file ofthe Sub-Judge, Tirupattur has been in part-heard, evidence stageand the matter has been posted to 4.12.2008 as informed by therespondent/wife's counsel. But the prayer of thepetitioner/husband is to transfer the I.A.16/2008 in HMOP.106/2007pending on the file of Sub-Court, Tirupattur to the file of theDistrict Court, Vellore, where GOP.14/2008 is pending for thecustody of the minor child. In fact, the petitioner/husband hasnot sought the transfer of the main HMOP.106/2007 pending on thefile of the Sub-Court, Tirupattur, but has only prayed for the https://hcservices.ecourts.gov.in/hcservices/ transfer of I.A.16/2008 in HMOP.106/2007. When the fact situationis that I.A.16/2008 is pending in part-heard stage evidence, thenthis Court opines that it is not possible for this Court totransfer the I.A.16/2008 in HMOP.106/2007 pending on the file ofthe Sub-Court, Tirupattur to the file of the District Court,Vellore, where admittedly the GOP.14/2008 is pending and in thatview of the matter, this Tr.C.M.P. fails and the same is herebydismissed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.tsiTo1.The Sub-Judge, Thirupathur, Vellore District.2.The Section Officer, V.R.Section, High Court, Madras.+ 1 c.c. to M/s. S. Muthukumar, Advocate. S.R.No.2400. Tr.C.M.P.No.285 of 2008KJI (CO)GSK 30.01.2009.