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Smt. Payal vs Ranaram Veera on 16 January, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

..

S.B. CIVIL TRANSFER APPLICATION NO. 149 / 2017.

Smt. Payal wife of Ranaram Veera daughter of Shri Girdhari Sain,

by caste Sain, aged 26 years, presently residing at 18/620,

Chopasni Housing Board, Jodhpur.

—-Petitioner

Versus

Ranaram Veera son of late Shri Tejaram Veera, by caste Sain,

aged 32 years, resident of Village Pauchhina, District Tehsil

Jaisalmer (Rajasthan), presently residing at 496, MOF C/o 32

Wing, C/o 56 APO, Air Force Station, Ratanada, Jodhpur (Raj.)

342001.

—-Respondent

__
For Petitioner(s) : Mr. Shailendra Kala.
Mr. Anuj Kala.
For Respondent(s) : Mr. N.L. Joshi.
__
(2 of 15)
[CTA-149/2017]

JUSTICE DINESH MEHTA
Order
16/01/2018

REPORTABLE
BY THE COURT:

The present transfer application has been filed by the

petitioner – wife, inter alia, seeking transfer of Matrimonial Case

No. 2/2017 (26/2012) in the matter of “Ranaram Veera Vs. Smt.

Payal” from Family Court, Jaisalmer to Family Court, Jodhpur.

Narrating the facts of the present transfer application,

learned counsel Mr. Anuj Kala appearing for the petitioner

submitted that the petitioner contracted marriage with the

respondent on 14.05.2011 at Jaisalmer; soon whereafter, their

nuptial affinity got strained, for which, the petitioner was

constrained to return to Jodhpur for living with her parents.

Learned counsel for the petitioner informed that there is a series

of litigation pending between the parties, out of which, one is a

suit for permanent injunction filed by the respondent-husband on

26.01.2017, second being petition for maintenance filed by the

petitioner (wife) filed on 24.10.2017 and third being a case for

domestic violence filed on 28.07.2017 in the Court of competent

jurisdiction at Jodhpur. He submitted that owing to the discord in

the matrimony, Petitioner along with her 4 ½ year old daughter

has been living at Jodhpur with her parents, for whom taking up

journey to Jaisalmer is tiresome and agonizing as it involves not

only the cost but time also. She finds herself in a great difficulty

travelling as Jaisalmer is about 350 kms. away from Jodhpur. He
(3 of 15)
[CTA-149/2017]

also pointed out that presently the Respondent is also posted at

Jodhpur, for which he has filed cases at Jodhpur.

Opposing such request for transfer of the case, Mr. N.L.

Joshi, learned counsel appearing for the respondent-husband, at

the outset invited attention of this Court towards an order dated

19.05.2015, passed in S.B. Civil Transfer Application No. 3/2015

(Smt. Payal Vs. Rana Ram) filed by none other than the

petitioner herself, wherein a request identical to the one in the

present application was rejected, while observing that the

petitioner can avail services of a lawyer and she need not appear

in-person. It will not be out of place to reproduce the relevant

part of the order aforesaid, which reads thus:-

“Having considered the matter in its entirety and

taking into account the fact that divorce petition is

pending before the learned District Judge, Jaisalmer

since 2012, I am not inclined to grant indulgence to

the petitioner. It may be observed here that before

the learned District Judge, Jaisalmer the petitioner is

not required to appear in person and she can very well

avail services of a lawyer. That apart, by virtue of

Section 24 of the Hindu Marriage Act, 1955 (for short,

‘Act of 1955’) petitioner can also claim maintenance

pendente lite and litigation expenses from the

respondent-husband including the travelling expenses.

Learned counsel for the petitioner has submitted that

no endeavour is made by the petitioner to claim

maintenance pendente lite and litigation expenses.

(4 of 15)
[CTA-149/2017]

Be that as it may it is the volition of the

petitioner not to stake claim for maintenance pendente

lite and expenses for proceedings, otherwise legal

position in this behalf is no more res-integra by virtue

of Section 24 of the Act of 1955.

In totality, taking into account the fact that

litigation is pending since 2012 and it is not imperative

for the petitioner to appear in person before the

learned District Judge, Jaisalmer, I am not persuaded

to accede to the prayer of the petitioner.

Consequently, this transfer petition fails and same is

hereby dismissed.

Before parting, it may be observed that looking

to the sensitive nature of dispute, which is a petition

for dissolution of marriage and pending since 2012,

the learned District Judge, Jaisalmer is expected to

proceed with the trial as expeditiously as possible and

decide the same at the earliest.”

Mr. N.L. Joshi further submitted that the fact that the

petitioner is having 4½ years old daughter with her, by itself is not

a ground for which, the matter needs to be transferred, while

maintaining that these facts were very much existing when this
(5 of 15)
[CTA-149/2017]

Court had rejected petitioner’s earlier transfer application, vide

order dated 19.05.2015. Learned counsel for the Respondent

husband on the one hand contended that the present application

is hit by the principle of res judicata and on the other argued that

the grounds put forth by the applicant do not justify transfer of

case and that his client is ready to bear the cost of journey.

In rejoinder, Mr. Kala submitted that the principles of res

judicata do not apply to the applications for transfer of a case filed

under Section 24 of the Code of Civil Procedure, inasmuch as the

transfer application does not determine the rights of the parties;

and the change in circumstances gives a separate cause of action

to the applicant to move the Court for transfer of the case all over

again. In support of his contention, Mr. Kala placed reliance upon

a Full Bench Judgment, reported in AIR 1935 Rangoon 267 and

the judgment of the Hon’ble Andhra Pradesh High Court, reported

in 2006 (1) ALD 642 (A.P.) in the matter of Yeleti Pedaveerraju

Vs. Vanka Jayalakshmi in support of such argument.

In a bid to steer clear the hurdle of res-judicata, learned

counsel for the Petitioner submitted that at the time of decision of

Petitioner’s first transfer application, the matter was being tried by

the District and Sessions Judge, Jaisalmer, before whom, lawyers

could appear on behalf of the litigants. However, the scenario has

since changed, as the Family Court has been established in

Jaisalmer and the case is being conducted by such Family Court,

where services of lawyers cannot be availed as a matter of right.

To buttress his argument with respect to grounds for

transfer, Mr. Kala cited the judgments of the Hon’ble Supreme
(6 of 15)
[CTA-149/2017]

Court, reported in 2001(5) Supreme 723 (Supreme Court) in the

matter of Amita Shah Vs. Virender Lal Shah; 2013(2) HLR 86

(Supreme Court) in the matter of Arvind Kumar Sharma Vs.

Vineeta Sharma Anr.; 2016(2) HLR 791 (Bom.), in the matter of

Sheetal Mahendra Devrukhkar Vs. Mahendra Kashram

Devrukhkar; and 2015 (3) HlR 561 (PH), in the matter of

Harpreet Kaur Khalsa Vs. Kawaldeep Singh and submitted that in

the facts of the present case, the case pending at Jaisalmer

deserves to be transferred to the Family Court, Jodhpur.

Per contra, Mr. N.L. Joshi argued that the case should not be

transferred at the request of a wife, merely because she is a

woman or she has to raise a young child. In support of such

contention, he cited judgments of the Hon’ble Supreme Court,

reported in (2005) 11 SCC 535 in the matter of Preeti Sharma Vs.

Manjit Sharma; (2004) 13 SCC 694 in the matter of Anuradka

Dutta Vs. Subash Chandra Dutta; (2000) 10 SCC 95 in the

matter Usha George Vs. Koshy George; in the matter of Pooja

Choudhary Vs. Vinay Jaiswal [Transfer Petition (Civil) No.

683/2014, decided on 08.01.2015]; AIR 2017 SC 1345 in the

matter of Krishna Veni Nagam V. Harish Nagam; and (2006) 9

SCC 197 in the matter of Anindita Das Vs. Srijit Das; judgments

of this Court, reported in 2009(3) DNJ (Raj.) 1472 in the matter of

Tilotamma (Smt.) Vs. Anoop Kumar; in the matter of Smt.

Parwati Sharma Vs. Pawan Kumar (Transfer Application (CTA No.

87/2015, decided on 03.11.2016), in the matter of Neelam Vs.

Dinkar Jangir (Transfer Application No. 139/2016, decided on

21.02.2017); and the decision rendered in the case of Smt.
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[CTA-149/2017]

Mamta Vs. Dharmendra Kumar Chouhan (Transfer Application

No. 78/2017, decided on 08.09.2017).

Heard learned counsels for the parties at length and perused

the law cited by both the counsels.

The first and foremost question which has cropped up for

consideration is as regards applicability of the principles of res

judicata, in the matters relating to transfer of cases filed under

Section 24 of the Code of Civil Procedure.

The principles of res judicata, a salutary principle, which has

been embodied under Section 11 of the Code of Civil Procedure,

has been expanded by the Courts of law and the Hon’ble Supreme

Court has expounded that such principle applies to different

stages of a suit too.

Learned counsel for the respondent Mr. N.L. Joshi relied upon

the judgment of the Hon’ble Supreme Court, reported in 1964 AIR

(SC) 993 in the matter of “Arjun Singh Vs. Mohindra Kumar

Ors.”, in support of his argument of the applicability of principles

of res judicata.

A perusal of the aforesaid judgment shows that it does not

lend support to the respondent’s contention, as it only lays down

the basic principles regarding res judicata, propounding that such

principle applies to different stages of the proceedings in the same

suit also.

In considered opinion of this Court, if the aforesaid judgment

of the Hon’ble Supreme Court is understood in its true

perspective, the same cannot be held applicable to the application
(8 of 15)
[CTA-149/2017]

under Section 24 of the Code of Civil Procedure, as the decision of

such application neither decides nor adjudicates the rights of the

parties nor does it decide an ‘issue’ involved in the case. Though

an order under Section 24 of the Code of Civil Procedure is a

judicial order, yet such adjudication is confined to the facts and

grounds existing till such stage. Even, on the basis of the

principles enunciated in the judgment aforesaid, it cannot be said

that an order passed under Section 24 of the Code of Civil

Procedure, rejecting the prayer for transfer of a case would be an

impediment or road-block in the way of a party preferring another

application, if the fact situation or circumstances changes to

his/her detriment.

Learned counsel for the petitioner had cited Full Bench

Judgment, reported in AIR 1935 Rangoon 267 in the matter of

Dayabhai Jiwandass Ors. Vs. A.M.M. Murugappa Chettyar, to

contend that the principle of res judicata does not apply to the

applications under Section 24 of the Code of Civil Procedure, as

the same applies to a ‘suit’ only; whereas, adjudication of the

application under Section 24 of the Code does not amount to

decision of a ‘suit’.

The aforesaid judgment of Full Bench that the adjudication of

an application under Section 24 of the Code does not amount to

decree for which, principle of res judicata does not apply, does not

hold water, in light of the judgment of Hon’ble the Supreme Court,

more particularly, 1964 AIR 993 wherein, it has held that the

principle of res judicata applies to different stages of the ‘suit’ and
(9 of 15)
[CTA-149/2017]

such principle cannot be confined to what has been encapsulated

in Section 11 of the Code.

Another judgment cited by Mr. Kala was of Andhra Pradesh

High Court, reported in 2006 (1) ALD 642 (A.P.) in the matter of

Yeleti Pedaveerraju Vs. Vanka Jayalakshmi; while reading para

No. 7 of the judgment aforesaid, learned counsel submitted that

principle of res-judicata does not apply to the petitions under

Section 24 of the Code of Civil Procedure.

A perusal of the judgment aforesaid, including para Nos. 7

and 8, upon which, great emphasis had been laid by Mr. Kala, this

Court finds that this judgment is not at all on the point canvassed

by him and the same lends hardly any support to him. A careful

analysis of the facts and law enunciated in said case shows that

Hon’ble Andhra Pradesh High Court has ruled that a fresh

application under Section 24 of the Code is maintainable before

the High Court, despite the fact that the District Court in exercise

of the powers under Section 24 of the Code has already rejected

such application, observing that jurisdiction to transfer a case

under Section 24 of the Code is a concurrent jurisdiction.

Having examined the provisions of Section 11 of the Code

and the judgment cited by learned counsel for the respondent,

and other relevant precedents on the subject, this Court is of the

opinion that the principle of res judicata cannot be caged in the

confines of Section 11 of CPC. This canon of law is of far more

general application and wider generic extension.

The principle of res judicata applies to a decision of a ‘suit’ or

an ‘issue’. However, said decision of an application under Section
(10 of 15)
[CTA-149/2017]

24 of the Code cannot be treated to be a decision of an ‘issue’, as

the same is only an adjudication of a request to transfer a case,

on the facts pleaded and/or obtaining at the relevant time. The

adjudication albeit is a judicial adjudication and not an

administrative act simplicitor, yet it does not fall within the

precincts of determination of the rights of parties. Hence, a

second/subsequent application under Section 24 of the Code of

Civil Procedure is not barred.

As such, if subsequent to decision of such application, new

facts emerge or circumstances change materially, it gives a fresh

cause of action to the parties and the succeeding application, if

filed, in light of the changed circumstances, needs to be decided

on the facts pleaded therein. If the Court finds that there is a

change in circumstance or fact situation, the Court is expected

rather obliged to consider such application and decide the same,

of course with greater circumspection and caution. This view of

the Court is fortified by the judgment of the Hon’ble Supreme

Court in the matter of “Arjun Singh Vs. Mohindra Kumar Ors.,

reported in AIR 1964 SC 993 wherein, the Hon’ble Supreme Court

has held as under:-

“But what we are concerned with is slightly different

and that is whether the same Court is finally bound by

that order at later stages, so as to preclude its being

reconsidered. Even if the rule of res judicata does not

apply it would not follow that on every subsequent

day on which the suit stands adjourned for further

hearing the petition could be repeated and fresh
(11 of 15)
[CTA-149/2017]

orders sought on the basis of identical facts. The

principle that repeated applications based on the

same facts and seeking the same reliefs might be

disallowed by the court does not however necessarily

rest on the principle of res judicata. Thus, if an

application for the adjournment of a suit is rejected, a

subsequent appication for the same purpose, even if

based on the same facts, is not barred on the

application of any rule of res judicata, but would be

rejected for the same grounds on which the original

application was refused. The principle underlying the

distinction between the rule of res judicata and a

rejection on the ground that no new facts have been

adduced to justify a different order is vital. If the

principle of res judicata is application to the decision

on a particular issue of fact, even if fresh facts were

placed before the Court, the bar would continue to

operate and preclude a fresh investigation of the

issue, whereas in the other case, on proof of fresh

facts, the Court would be competent, and would be

bound to take those into account and make an order

conformably to the facts freshly brought before the

Court.”

The rival parties have cited various judgments on the merit

of the case in support of their contentions that the case at hand

be transferred or should not be transferred.

(12 of 15)
[CTA-149/2017]

If the facts pleaded in the present case are juxtaposed with

the facts obtaining at the time of decision of earlier transfer

application, it transpires that the earlier transfer application was

moved only because the petitioner residing at Jodhpur was finding

it difficult to participate in the proceedings pending before the

District Judge, Jaisalmer; transfer on which ground had been

denied by this Court, inter alia, observing that she can very well

avail the assistance of a lawyer.

Noteworthy it is, that only one case between the parties was

pending during the earlier application, whereas presently three

cases are pending at Jodhpur filed by the rival parties, with an

additional fact that the respondent-husband himself is posted at

Jodhpur. The factum of institution of these three cases was

neither available nor considered by this Court, while rejecting the

earlier transfer application. As such, the fact situation prevailing

presently is entirely or substantially different than the one

prevailing in 2015, rather there is a sea change in the fact

situation for which, the present application for transfer of case

deserves to be entertained. A genuine and bona fide application

for transfer of the case cannot be gainsaid as another application

filed earlier had been nixed by the Court.

Coming to the merits of the petitioner’s contention seeking

transfer of the case, this Court believes that it would be

expeditious and in the interest of justice and convenient to all

concerned that all the matters are heard at one place, viz.,

Jodhpur. Petitioner’s going all the way to Jaisalmer to contest the

present case for dissolution of marriage, particularly when the
(13 of 15)
[CTA-149/2017]

parties are contesting three cases instituted at Jodhpur panders to

nobody’s interest, except Respondent’s ego.

It is not in dispute that the respondent-husband is presently

posted at Jodhpur. This Court fails to understand the adamancy of

the respondent-husband, as he not only wants to push the

petitioner to Jaisalmer for dissolution of marriage, but he himself

also wants to travel all the way to Jaisalmer, despite being posted

at Jodhpur. The stand taken by the respondent-husband

exemplifies nothing, but his inexplicable inflexibility.

It is needless to observe that a case is required to be

decided on the facts obtaining therein. Both the learned counsels

have cited plethora of judgments to give strength to their cause,

however, if the facts of the present case are considered in its

entirety coupled with the judgment of this Court, in the case of

Smt.Vinita Vs. Himanshu, reported in AIR 2017 Rajasthan 102,

wherein most of the judgments on the issue have been dealt with;

reached to a conclusion that the application deserves to be

allowed.

It will not be out of context to quote relevant excerpts from

the judgment of Smt.Vinita Vs. Himanshu (supra), wherein this

Court has held as under:-

“It is, therefore, felt imperative to examine and

explore the necessary principles governing transfer

applications, filed by families, entangled in forensic

fights, while invoking powers conferred upon this

Court by Section 24 of the Code of Civil Procedure,

1908.

(14 of 15)
[CTA-149/2017]

According to this Court, the provisions of Section

24 of the Code provides a great deal of discretion in

the court, however, such discretion is required to be

exercised on the basis of sound principles. It is true

that the discretionary power, more particularly, the

jurisdiction in relation to transfer of cases, can not be

imprisoned or bound within a straight jacket or cast-

iron formula, uniformly applicable to all situations, yet

the courts are required to be mindful of the fact that

the power to transfer a case must be exercised with

due care, caution and circumspection.

Keeping in mind the provisions and mandate of

Sections 24 and 25 of the Code, various judicial

pronouncements have laid down broad propositions as

to what may constitute a ground for transfer of a case.

Generally speaking, they are, balance of convenience

or inconvenience to the plaintiff or defendant or

witnesses; convenience or inconvenience arising out of

a particular place of trial, having regard to the nature

of evidence or the points involved in the case; issues

raised by the parties; and, reasonable apprehension in

the mind of a litigant that he might not get justice in

the court, where the proceedings are pending, or

reasonable apprehension of failure of justice on the

basis of a proven bias. These few factors are some of
(15 of 15)
[CTA-149/2017]

the aspects, germane in considering the question of

transfer of a suit, appeal or other proceedings.

It may be true that distance alone may not be

decisive factor but it has its own role while considering

the convenience of the parties, particularly, a wife.

Court should focus on the convenience rather than

redressal or mitigating against inconvenience.

Convenience itself is a vital factor, to be reckoned

while deciding a Transfer Petition. Suffice it to say,

that in the present case, it is not the distance alone for

which this Court finds that it would be convenient for

the petitioner-wife to defend the case in question at

Bhilwara instead of Chittorgarh. There are other

surrounding circumstances stated above, for which

this Court feels it appropriate to transfer the case to

the court at Bhilwara.”

In view of the facts obtaining and discussion foregoing, this

Court deems it appropriate, expedient and also in the interest of

justice to withdraw Case No. 2/2017 (26/2012) titled as “Ranaram

Veera Vs. Smt. Payal” from Family Court, Jaisalmer with a view

to transfer it to Family Court-First, Jodhpur.

Ordered accordingly.

A copy of this order be sent to the concerned Courts for

facilitating transmission of the record.

(DINESH MEHTA), J.

/Mohan/26

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