In (Benudhar Swain and others v. Nilamani Swain and others), reported in
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK TRP(C). No.104 of 2025 Penugurthi Sita ....... Petitioner Mirza Nazia Farheen ....... Opposite Party -Versus- For Petitioner
Legal Reasoning
: Mr. S. K. Singh, Advocate For Opposite Party : None ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA ------------------------------------------------------------------------------------- Date of Hearing & Judgment: 23.07.2025 -------------------------------------------------------------------------------------- S.K. MISHRA, J. A prayer has been made in this transfer petition for transfer of CS No.146 of 2024 from the Court of Civil Judge (Senior Division), Nabarangpur to the Court of Civil Judge (Senior Division), Koraput. 2. Learned Counsel for the Petitioner submits, the Petitioner is a lady of 65 years old. At present she is residing at Visakhapatnam. The distance between Visakhapatnam to Nabarangpur is around 250 KMs, whereas, the distance from Visakhapatnam to Koraput is around 130 KMs, where TRP(C) No.104 of 2025 Page 1 of 5 her relatives are residing. It would be convenient for her if the suit is transferred from Nabarangpur to Koraput. 3. Admittedly, CS No.146 of 2024 has been filed by the Opposite Party, who is the Plaintiff in the said suit, with the following reliefs:- “It is, therefore, prayed that the Hon’ble Court be pleased to pass decree in favour of plaintiff and against the defendant: - (i) To direct the defendant to execute the sale deed with respect to suit land in favour of plaintiff, (ii) To issue perpetual injunction against the defendant not to make any alienation until disposal of this suit, (iii) To award cost of the suit, (iv) To give any other relief as the Hon’ble Court deems fit and proper in the interest of justice.” 4. So far as cause of action to file the suit at Nabarangpur, it has been stated in the Plaint as follows:- “Cause of Action; That, the cause of action for filing of the suit arose on 28th March,2023, when an agreement in between plaintiff and was entered defendant and on 3rd October, 2024, when a sale deed drafted and prepared as per the instructions of defendant and on 21.10.2024 to when defendant and all are within the jurisdiction of this Hon'ble Court.” the plaintiff legal notice issued (Emphasis Supplied) TRP(C) No.104 of 2025 Page 2 of 5 5. In (Benudhar Swain and others Vs. Nilamani Swain and others), reported in 2005 (II) OLR 509, this Court held as follows: (see-Purna “5. Law is well settled that only to suit the convenience of a party, the other party should not be put to inconvenience. While dealing with a petition under Section 24 CPC the Court always has to keep in mind that the plaintiff has the choice of his forum so long as the suit is not subject to the defect of want of local jurisdiction a suit is not to be transferred from the Court where the plaintiff chooses to institute it, merely to serve the convenience of the defendants Chandra Mohanty V. Samanta Radhaprasanna Das). Mr. Misra also relied upon the decision report in AIR 1982 SC 52 and submitted that as the substantial portion of the suit property is situated at Angul, the suit may be transferred to Angul. But then as would be evident from the suit schedule, substantial portion of the suit property is situated at Dhenkanal and not at Angul. The other ground that it will be inconvenient to the defendants who are old persons to travel all the way from Angul to Puri also cannot be a ground to transfer a suit. As per Order 26, Rule 4 CPC if there is inconvenience and a party is unable to travel to the Court for adducing evidence, he can be examined on commission as has been held in the decision reported in 92 (2001) CLT 26 (Om Prakash Agarwala V. Berhampur Municipality). the aforesaid settled position of law, I am not inclined to transfer the suit from Puri to Angul and dispose of this Writ Petition accordingly.” In view of (Emphasis Supplied) TRP(C) No.104 of 2025 Page 3 of 5 6. In Indian Overseas Bank, Madras Vs. Chemical Construction Company and others, reported in (1979) 4 SCC 358, the Supreme Court held as follows. “16. The principle governing the general power of transfer and withdrawal under Section 24 of the Code is that the plaintiff is the dominus litis and, as such, entitled to institute his suit in any forum which the law allows him. The court should not lightly change that forum and compel him to go to another court, with consequent increase in inconvenience and expense of prosecuting his suit. A mere balance of convenience in favour of proceedings in another court, albeit a material consideration, may not always be a sure criterion justifying transfer.” (Emphasis Supplied) 7. Admittedly, the Opposite Party, who is the Plaintiff in CS No.146 of 2024, is also a lady. CS No.146 of 2024 being a Civil Suit, with the prayers as detailed above, the present Petitioner, who is the Defendant in the said case, is only required to remain present on the dates, when she is to depose as a DW. On each and every date her presence may not be required in the said suit. Hence, this Court is of the view that, if the Petitioner intends to depose as a witness in CS No.146 of 2024 and faces any difficulty to do so, she has the remedy to file appropriate application seeking leave of the Court for recording her evidence through video TRP(C) No.104 of 2025 Page 4 of 5 conferencing. That apart, she can also file application under Order 26 Rule 4 of CPC for recording her evidence on commission. 8. Hence, taking note of the reasons detailed above, submissions made by the learned Counsel for the Petitioner and the settled position of law, as referred herein above, this Court is of the view that only to suit the convenience of the Petitioner, who is the Defendant in CS No.146 of 2024, prayer made in the transfer petition to transfer the proceeding from Nabarangpur to Koraput merits no consideration. 9. Accordingly, the transfer petition stands disposed of at the stage of admission. 10. Office is directed to communicate a copy of this Judgement to the learned Civil Judge (Senior Division), Nabarangpur. ….…….…………… S.K. Mishra, J. Orissa High Court, Cuttack. Dated, 23rd July, 2025/ Mona Signature Not Verified Digitally Signed Signed by: MONALISA SWAIN Reason: Authentication Location: High Court of Orissa Date: 24-Jul-2025 18:09:35 TRP(C) No.104 of 2025 Page 5 of 5