The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK TRP(C) No. 252 of 2023 An application under Section 24 of the Code of Civil Procedure. -------------- Charan Samantaray and Another ..… Petitioners -Versus- Subhasmita Baliarsingh ….. and Others Opp. Parties Advocate(s) appeared in this case :- _______________________________________________________ For Petitioners : M/s. K. Patnaik & K.K. Mohanty, Advocates
Legal Reasoning
For Opp. Parties : M/s. S.K. Dash, S.P. Dash, A.K. Srichandan, Advocates (For O.P. Nos. 1 to 3) M/s. R. Sahoo, P.K. Khuntia J.P. Mohanty, Advocates (For O.P. Nos. 4 and 5) _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA J U D G M E N T 19th September, 2024 SASHIKANTA MISHRA, J. The Petitioners, who are Defendants in C.S. No.292 of 2022 filed by the Opposite Party Nos. 1 to 3 in Page 1 of 7 the Court of learned Senior Civil Judge, Khordha, seek transfer of the said case to the Court of learned Senior Civil Judge, Sambalpur. 3. The suit has been filed by the Opposite Party Nos. 1 to 3 for partition, permanent injunction, declaration and other consequential relief. Prayer for transfer of the suit has been made on the ground that Petitioner No.1 is an old man aged about 76 years and is under constant supervision of the Doctor for his fluctuating blood pressure, diabetes etc. and has been advised bed rest and prohibited from travelling. The Petitioner No.2 is an elderly lady of 63 years having cardiac and neurological problem. The documents relating to the ailment of the petitioners have been enclosed. It is further stated that the Plaintiff– Opposite Party Nos. 1 to 3 are residing in Hirakud, near Sambalpur where the Opposite Party No.1 is serving as a teacher in Saraswati Sishu Vidya Mandir at Bandhabahal, also near Sambalpur. It is also stated that when the Petitioners appeared in the Court at Khordha on 16.03.2023, they were harassed by the relations and Page 2 of 7 henchmen of Opposite Party No.1 and abused in filthy language and also threatened. They have also been receiving threatening calls from unknown number. On such grounds transfer of the suit is sought for, more so as the Opposite Party No.1 being a resident of Hirakud, will not be inconvenienced in any manner. 4. The Opposite Party Nos.1 to 3 have filed a counter affidavit opposing the prayer for transfer on the ground that despite being old, the Petitioners are healthy and strong enough to attend the Court at Khordha and Petitioner No.2 has already appeared on 27.09.2023 and 12.10.2023 when she was examined and cross-examined. Further, a case under Section 19 of the Hindu Adoption and Maintenance Act has been filed, which is pending before the learned Judge, Family Court, Khordha. The Opposite Party No.4 has also filed a civil suit being C.S. No. 41 of 2022 and a complaint case before learned J.M.F.C., Khordha vide 1CC Case No.52 of 2022. Though the opposite party No.1 after death of her husband was working as a Teacher in Saraswati Sishu Vidya Mandir, Page 3 of 7 was forced to leave the school on 31.03.2023 because of harassment meted out by the Petitioners. Presently, she along with her two minor children is residing in her parental house at Khordha. It would therefore be inconvenient for her to travel to Sambalpur covering 300 kilometers to attend with the case. 5. The Petitioners have filed a rejoinder to the counter filed by the Opposite Party Nos. 1 to 3, inter alia, stating that Opposite Party No.1 is staying in Bandhabahal in MCL colony quarters and Opposite Party No.2 is studying in Saraswati Sishu Vidya Mandir, as evident from information obtained under the R.T.I. Act. 6. Hear Mr. K. Patnaik, learned counsel for the petitioners, Mr. Saroj Kumar Das, learned counsel for the Opposite Party Nos.1 to 3 and Mr. R. Sahoo, learned counsel for Opposite Party Nos. 4 and 5. 7. Mr. Patnaik submits that his clients being old and ailing are unable to travel from Sambalpur to Khordha to attend to the case, more so as there is danger to their lives at the instance of the Opposite Party No.1, who is none Page 4 of 7 other than their daughter-in-law. Mr. Patnaik further submits that the Opposite Party No.1 deliberately misrepresented facts that she left employment from the school on 31.03.2023, even though information has been obtained through RTI act that she was working at least till 29.02.2024 and moreover, her child (Opposite Party No.2) is still a student of the school at Bandhabahal. 8. Mr. Das, learned counsel for the Opposite Party Nos. 1 to 3 submits that since evidence in the case has already been adduced with the Petitioner No.2 being examined and cross-examined, it would not be proper to transfer the suit at this stage. Secondly, there are multiple litigations pending before different Courts at Khordha between the same parties and therefore, it would be convenient for the Opposite Party No.1, who is a young widow, if the suit is allowed to continue at Khordha. 9. Mr. Sahu, learned counsel appearing for the Opposite Party Nos. 4 and 5 also makes similar arguments as learned counsel for the Opposite Party Nos. 1 to 3. Page 5 of 7 10. Though much has been pleaded an argued, this Court finds that firstly, hearing of the suit has already begun with the Petitioner No.2 being examined and cross- examined on 27.09.2023 and 12.l0.2023. Therefore, in so far as Petitioner No.2 is concerned, there is no compelling necessity for her to appear before the court below physically, unless her personal attendance is otherwise considered necessary by the Court. In so far as the Petitioner No.1 is concerned, this being a civil suit, his personal attendance on each date of posting of the case is also not necessary unless so directed by the Court below. It is not disputed that the Petitioners are represented through counsel in the court below. It is also borne out from the materials on record that there are other litigations between the parties pending before different Courts at Khordha. As regards the claim that the Opposite Party No.1 is residing in Hirakud/Bandhabahal, this Court finds the same is not relevant for the purpose in view of the fact that she has herself not sought for transfer of the case from Khordha to Sambalpur on the Page 6 of 7 ground of her residence. The Petitioners cannot claim transfer citing her inconvenience. 11. For the foregoing discussion therefore, this Court does not find any valid or justified ground to direct transfer of the civil suit from Khordha to Sambalpur. 12 Resultantly, the Transfer Application being devoid of merits is therefore dismissed. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 19th September, 2024/ B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2024 10:01:46 Page 7 of 7