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Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK TRP (C) No.292 of 2022 Santilata Prusty ....... Petitioner -Versus- Shibani Prusty and others ....... Opp. Parties For Petitioner : Mrs. Jyotsnamayee Sahoo, Advocate For Opp. Party No.1 : Mr. Samir Kumar Mishra, Senior Advocate For Opp. Party No.3 : Ms. Samapika Mishra, Advocate ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA ------------------------------------------------------------------------------- Date of Hearing and Judgment: 16.07.2025 ------------------------------------------------------------------------------- S.K. Mishra, J. 1. This Transfer Petition has been filed by the
Legal Reasoning
Petitioner, who is the Defendant No.1 in Civil Suit No.124 of 2021, for transfer of proceeding in the said case from the Court of Civil Judge (Sr. Divn.), Patnagarh, Bolangir to the Court of Civil Judge (Sr. Divn.), Cuttack basically on two TRP(C) No.292 of 2022 Page 1 of 7 grounds. The first ground is she is an old widow, who is struggling to manage herself and is overburdened to look after the case at Patnagarh, which is around 400 K.Ms away from Cuttack. The second ground is, she is suffering from old age ailments and it is very difficult on her part to go to Patnagarh to attend the Court proceeding alone, as she has no other family member to accompany her. 2. Heard Mrs. J. Sahoo, learned Counsel for the
Legal Reasoning
Petitioner so also Mr. S.K. Mishra, learned Senior Counsel for the Opposite Party No.1 and Ms. S. Mishra, learned Counsel for the Opposite Party No.3. 3. Reiterating the grounds urged in the Transfer Petition, Mrs. Sahoo, learned Counsel for the Petitioner submits, the Petitioner (defendant No.1 in Civil Suit No.124 of 2021), who is old and ailing, is staying at Cuttack alone, whereas the Opposite Party No.2, who is the daughter of the Petitioner (Defendant No.2 in Civil Suit No.124 of 2021) is staying at Hyderabad. Mr. Sahoo further submits, present Opposite Party No.1, who is the Plaintiff in Civil Suit No.124 of 2021, is also residing at Cuttack. If the suit is transferred to Cuttack, it will be convenient for both the parties to assist the TRP(C) No.292 of 2022 Page 2 of 7 Court at Cuttack for early disposal of Civil Suit No.124 of 2021. 4. Though no written objection has been filed by the Opposite Party Nos.1 and 3 opposing to such prayer for transfer, Mr. Mishra, learned Senior Counsel for the Opposite Party No.1 submits, Civil Suit No.124 of 2021, being a suit pertaining to immovable property, has been rightly instituted before the Court of Civil Judge (Sr. Divn.) at Patnagarh having territorial jurisdiction to try the said suit. Drawing attention of this Court to the schedule of property detailed in the Plaint, Mr. Mishra, learned Senior Counsel further submits, the suit land pertains to Patnagarh and the Defendant No.3 in the said suit, who is the Opposite Party No.3 in the present Transfer Petition, who purchased the suit land from his client, is also residing at Patnagarh. Mr. Mishra, learned Senior Counsel further submits, the Opposite Party No.2, being the daughter of the Petitioner, who has been arrayed as Defendant No.2 in Civil Suit No.124 of 2021, is supporting the cause of her mother and intentionally has not appeared in this case, though notice was duly served on her. Mr. Mishra, learned Senior Counsel further submits, even if it is accepted that the Petitioner is an old and ailing lady, as per the settled position TRP(C) No.292 of 2022 Page 3 of 7 of law, so far as civil suits are concerned, the grounds urged in the transfer petition for transfer of proceeding are not tenable alike matrimonial proceedings at the instance of an woman. 5. Supporting the arguments advanced by Mr. Mishra, learned Senior Counsel for the Opposite Party No.1, Ms. S. Mishra, learned Counsel for the Opposite Party No.3 submits, her client is a resident of Patnagarh. That Apart, relying on the judgment of this Court reported in 2005 (II) OLR 509 (Benudhar Swain and others Vs. Nilamani Swain and others) Ms. Mishra further submits, the grounds urged in the Transfer Petition for transfer of proceeding from Patnagarh to Cuttack cannot be accepted as good grounds to pray so. That apart, the Petitioner, who is the Defendant No.1 in Civil Suit No.124 of 2021, is not supposed to attend the said proceeding on each and every date, as she is represented through a lawyer. Only her presence would be required in the proceeding, if she wants to depose as a defendant witness. If there is any inconvenience for her to remain present before the said Court for adducing evidence, she can be examined through Video Conferencing mode or on commission, as provided under Order 26, Rule 4 C.P.C. TRP(C) No.292 of 2022 Page 4 of 7 6. In Benudhar Swain (supra), this Court held as follows: “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 (see-Purna 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 TRP(C) No.292 of 2022 Page 5 of 7 Prakash Agarwala V. Berhampur Municipality). In view of 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.” 7. In the case of 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.” 8. Admittedly, the suit land comes under the territorial jurisdiction of the Court of Civil Judge (Sr. Divn.), Patnagarh, in the district of Bolangir. The Opposite Party No.3, though is residing at Cuttack, has filed the case at Patnagarh. Law is well settled that the Plaintiff has the choice of his forum so long as the suit is not subjected to the defect TRP(C) No.292 of 2022 Page 6 of 7 of want of local jurisdiction. Hence, taking note of the reasons detailed in the Transfer Petition so also submissions made by learned Counsel for the parties, this Court is of the view that, only to suit the convenience of the Petitioner, who is the Defendant No.1 in Civil Suit No.124 of 2021, prayer made in the Transfer Petition to transfer the proceeding from Patnagarh to Cuttack merits no consideration. 9. However, it is made clear that rejection of the prayer made in the Transfer Petition shall not be a bar for the Petitioner, who is the Defendant No.1 in Civil Suit No.124 of 2021, to move appropriate application before the Court of Civil Judge (Sr. Division), Patnagarh, seeking leave of the said Court to allow her to be examined through Video Conferencing mode, apart from seeking remedies under C.P.C for recording of her evidence through Commission, if she is so advised. 10. With the said observation, the Transfer Petition
Decision
stands disposed of. ….….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack Dated, 16th July, 2025/Kanhu TRP(C) No.292 of 2022 Signature Not Verified Digitally Signed Signed by: KANHU BEHERA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 18-Jul-2025 19:18:07 Page 7 of 7