HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
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.
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.)
For Petitioner(s) : Mr. Shailendra Kala.
Mr. Anuj Kala.
For Respondent(s) : Mr. N.L. Joshi.
(2 of 15)
JUSTICE DINESH MEHTA
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)
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)
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
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)
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)
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.
(7 of 15)
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
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)
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
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)
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)
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)
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
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)
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)
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
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,
(14 of 15)
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)
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.
A copy of this order be sent to the concerned Courts for
facilitating transmission of the record.
(DINESH MEHTA), J.