The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK TRP(C) No.22 of 2022 Benjin Dash …. Petitioner Mr. Anupam Dash, Advocate -versus- Sumit Kumar Dash …. Opp. Party None CORAM: JUSTICE M.S. SAHOO Order No.
Decision
ORDER 17.04.2023 Hybrid Mode 09. 1. 2. Heard learned counsel for the petitioner. The petition under Section 24 of the C.P.C. has been filed seeking transfer of C. P. No.727 of 2019 pending in the court of learned Judge, Family Court, Jagatsinghpur filed by the husband-opposite party under Section 13(1) of the Hindu Marriage Act, 1955 for grant of decree of divorce to the court of learned Judge, Family Court, Bhubaneswar. 3. It is submitted that the petitioner-wife has to tend for herself staying with a minor child of five years. She has also filed a petition under Section 22 of the Special Marriage Act, 1954 for restitution of conjugal rights. It is submitted in the interest of justice the prayer made in the petition be allowed. 4. As noted by the earlier order dated 06.04.2023, the note of the Registry dated 04.07.2022 indicates that the notices has been sufficient. Though the notice has been sufficient, for since more than seven months, the opposite party has chosen not to appear before this Court either to // 2 // defend or to state his version in the present matter. To grant further opportunity, the matter was adjourned on the earlier date. As per the note of the Registry dated 13.04.2023, no counsel has appeared for the sole opposite party. 5. Section 24 of the CPC provides as follows: of and power transfer “24.General withdrawal. (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and- (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer either re-try it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section, (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) execution of a decree or order. includes a proceeding for the ‘proceeding’ (4) The Court transferred or trying any suit withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. Page 2 of 5 // 3 // (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.” 6. Hon’ble Supreme Court in the decision, Kulwinder Kaur ALIAS Kulwinder Gurcharan Singh V. Kandi Friends Education Trust and others : (2008) 3 Supreme Court Cases 659 at pagraph-23 discussing the scope of Sections 24 & 25 of the CPC has held as follows : raised by the parties; in view various “23. Reading Sections 24 and 25 of the Code judicial together and keeping pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by courts. They are balance of convenience or inconvenience to the plaintiff or the defendant or witness; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; “interest of for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the court feels that the plaintiff or the defendant is not likely to have a “fair trial” in the court from which he seeks to transfer a case, it is not only the power, but the duty of the court to make such order. ” justice” demanding [Emphasis Supplied] 7. Having heard the learned counsel for the petitioner, there being no appearance on behalf of the opposite party to controvert the submission of learned counsel for the Page 3 of 5 // 4 // petitioner, applying the principles laid down by the Hon’ble Supreme Court as noted above and in the interest of justice, this Court allows the prayer for transfer of the C. P. No.727 of 2019 pending before the learned Judge, Family Court, Jagatsinghpur to the court of learned Judge, Family Court, Bhubaneswar. 8. It is stated by the learned counsel for the petitioner that the opposite party is appearing before the learned courts in the proceeding, i.e. C.P. No.125 of 2020 filed under Section 22 of the Special Marriage Act, 1954 pending before the court of learned Judge, Family Court, Bhubaneswar and a proceeding under the Protection of Women Domestic Violence Act, 2005, i.e. Criminal Misc. Case No.104 of 2020 pending before the court of learned JMFC, Bhubaneswar. It is directed the learned Judge, Family Court, Bhubaneswar shall do well to fix the date of appearance/posting of both C. P. No.727 of 2019 which is sought to be transferred to the court of learned court as well as C.P. No.125 of 2020 to the same dates for convenience of the parties. It is hoped that the parties shall cooperate in expeditious disposal of all the pending matters before the learned Judge, Family Court, Bhubaneswar. 9. It should also be taken note of that there has been several Information and Communication Technology (ICT) initiatives to make it convenient for the parties to appear before the court through Video Conferencing. The learned courts shall explore the possibility of utilizing the ICT for convenience of the appearing parties and for expeditious disposal of pending litigation. Registry shall intimate this order to all the learned courts to do the needful. Page 4 of 5 // 5 // The TRP(C) is allowed with the aforesaid order. Ordered accordingly. Issue urgent certified copy as per rules. Copy of this order be uploaded. jyostna (M.S. Sahoo) Judge Page 5 of 5