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Deepa Piyush Khatri vs Piyush Bandulal Khatri on 4 March, 2019

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

MISC.CIVIL APPLICATION NO.42 OF 2019
(Deepa w/o Piyush Khatri Vs. Piyush s/o Bandulal Khatri)

Mr.B.U.Hosamath and Mr.S.B.Bhosle, Advocate for the applicant.

( CORAM : Ravindra V.Ghuge, J.)

DATE : 04/03/2019

PER COURT :

1. The learned Advocate for the petitioner/wife has put forth the

following prayers in this application u/s 23(3), 24 and Section 151 of

the Code of Civil Procedure :-

“1. This Misc.Civil Application may kindly be allowed, and
2. This Hon’ble Court may please be transferred the
proceedings of Divorce-petition bearing N o.A-447/2018
pending in the files of the Ld.Family Court at Aurangabad to
the Hon’ble Principal Judge of Family Court at Hubballi
(Karnataka State)”

2. The issue, therefore, is as to whether this Court can exercise

its jurisdiction u/s 24 to transfer a proceeding from a Court

subordinate to this Court, to a Court subordinate to another High

Court.

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3. The learned Advocate for the applicant has strenuously

canvased that u/s 23 and especially Sub Section 3, this Court has

the power and jurisdiction to transfer such a proceeding to another

Court which is sub ordinate to the Karnataka High Court. Reliance

is placed on the following judgments :-

“1. Misc.Civil Application No.34/2014 of Bombay High Court,
Bench at Aurangabad. Lavanya w/o Rameshwar Nalamwar
v/s Rameshwar s/o Dadarao Nalamwar (Coram : Shri
T.V.Nalawade, J.)
2. Lakshmi Nagdev v/s Jitendra Kumar Nagadev [(2005) 1-HLR
374 (MP)]
3. Bhakti Sharma v/s Mahendra Kumar Udenia [(1994) 2 DMC
166 (Allahabad)],
4. M.Manjulatha v/s M.L.Narasimham, [(1985) 2 DMC 70
(Karnataka)]
5. Mona Aresh Goel V/s Aresh Satya Goel [AIR 2000 SC 3512
(1)]”

4. The strenuous submission of the learned Advocate, relying on

Lavanya (supra), dated 11/06/2014, is that this Court has

transferred a HMP from the Court of the learned Civil Judge, Sr.Dn.

Parbhani to the Court of the learned District Judge, Nizamabad

which falls under the State of Telangana thereby being subordinate

to the Telangana High Court.

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5. I find that the judgment delivered by the Hon’ble Apex Court in

Durgesh Sharma Vs. Jayshree [(2008)9 SCC 648], was not cited

before this Court when the order dated 11/06/2014 was passed at

Aurangabad. My learned Brother in the said matter was therefore

not properly assisted and the judgment in Durgesh (supra) was not

cited for his assistance.

6. Learned Advocate then places reliance upon an order passed

by the Hon’ble Apex Court in the matter of Mona Aresh Goel Vs.

Aresh Satya Goel [AIR 2000 SC 3512(1)]. I find that the said order

which is in 4 paragraphs, reads as under :-

“1. The respondent-husband has been served but does not

appear.

2. The transfer petition is filed by the wife to transfer the divorce
proceedings taken by the husband in Bombay to Delhi, where
she now stays with her parents. The transfer petition avers that
the wife has no independent income and that her parents are
not in a position to bear the expenses of her travel from Delhi to
Bombay to contest the divorce proceedings. She avers that she
is twenty two years old and cannot travel to and stay in
Bombay alone for, there is no one in Bombay with whom she
can stay. We are of the opinion that the transfer petition should,
in the circumstances, be allowed.

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3. The transfer petition is made absolute in terms of prayer (a),
M.J. Petition No. A-636 of 1999 pending before the family Court
at Bandra, Bombay is transferred to the Court of the District
Judge, Tis Hazari, Delhi, who shall hear it. himself or assign it
for hearing to a competent Court.

4. No order as to costs.”

7. It is, therefore, obvious that the Hon’ble Apex Court, on the one

hand, noted that the respondent/husband has remained absent and

on the other hand, concluded that the transfer petition for

transferring the divorce proceedings filed by the husband in

Bombay to the Court at Delhi, deserves to be allowed. Nevertheless,

the Hon’ble Apex Court has concluded in Durgesh Sharma (supra)

that the jurisdiction and power to transfer a proceeding from a

subordinate Court under one High Court to a Subordinate Court

under another High Court, lies only with the Supreme Court.

8. He then places reliance upon the judgment delivered by the

High Court of Madhya Pradesh in Lakshmi Nagdev Vs. Jitendra

Kumar Nagdev decided on 24/09/2004 [Laws (MPH)-2004-9-26],

wherein the Madhya Pradesh High Court concluded that Section 23

would empower the High Court to transfer the proceedings from a

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Subordinate Court under the said High Court to another Court which

is subordinate to another High Court. I do not find that the said

view could be accepted considering the observations of the Hon’ble

Apex Court in Durgesh Sharma (supra).

9. In Durgesh Sharma (supra), the husband Durgesh Sharma had

taken the matter to the Hon’ble Apex Court for challenging the

judgment and order dated 25/01/2007 delivered by the High Court

of Madhya Pradesh Bench at Indore in MCA No.414/2005 by which

the Madhya Pradesh High Court ruled that Section 23 would

independently give a right to an applicant to approach the High Court

and the High Court can pass an order transferring a proceeding from

a Court subordinate to it to another Court subordinate to the

Bombay High Court. For clarity, the factual matrix set out in

paragraph No.3 needs to be reproduced as under :-

10. The order of the Madhya Pradesh High Court was summarized

in paragraph No.13 as under :-

“The High Court vide the impugned order dated 25/1/2007
allowed the application and transferred HMA Petition No.164-

A of 2004 pending in the Family Court, Ujjain to a competent
Court at Malegaon through the District Judge, Nasik. It is

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this order which is challenged in the present appeal. Notice
was issuedon 14/05/2007 and further proceedings were
stayed. Considering the nature of litigation, the matter was
ordered to be placed for final hearing and that is how the
matter has been placed before us.”

11. The submissions of the learned Advocates were summarized in

paragraph Nos.15 to 17 which read as under :-

“15. The learned counsel for the appellant contended that the
High Court was wholly wrong in transferring a case pending in
a Court subordinate to the said High Court to a Court
subordinate to another High Court. A High Court does not
possess that power and as such, the High Court of Madhya
Pradesh could not have transferred a case to a Court
subordinate to the High Court of Bombay. On that ground
alone, the order passed by the High Court deserves to be set
aside. It was also submitted that even on merits, no ground for
transfer of case was made out by the respondent-wife.

16. The learned counsel for the respondent, on the other hand,
submitted that the order passed by the High Court is in
consonance with law. It was urged that if the High Court is
satisfied that a proper case has been made out for transfer of a
case from a Court subordinate to the said High Court to a Court
subordinate to different High Court, in exercise of power under
sub-section (3) of Section 23 of the Code such order can be
made.

17. On the facts of the case, it would be very difficult for the

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respondent-wife to travel a distance of about 400 kms. all alone
and hence discretion was exercised by the High Court. This
Court, in the exercise of power under Article 136 of the
Constitution may not interfere with the said order. It was,
therefore, submitted that the appeal deserves to be dismissed.”

12. The Hon’ble Apex Court has then considered the statutory

provisions applicable to such cases in paragraph Nos. 18 to 30 as

under :-

“18. Before we deal with rival contentions and case-law on the point,
it would be appropriate if we notice the relevant provisions of the
Code.

19. Sections 22 to 25 enact law as regards transfer and withdrawal
of suits, appeals and other proceedings from one Court to another
Court. As a general rule, the plaintiff as arbiter litis or dominus litis
has a right to choose his/her own forum where there is more than one
Court in which such suit may be instituted. Normally, the defendant
cannot insist that instead of Court A, the plaintiff should file a suit in
Court B. But the right of the plaintiff to choose a forum is not arbitrary,
absolute or uncontrolled and in appropriate cases, a superior Court
may transfer a case pending in one Court to another Court.

20. Section 22 provides that where a suit may be instituted in one of
two or more Courts and is instituted in one of such Courts, a
defendant may apply to have the suit transferred to another Court.

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21. Section 23 provides the forum where such application may be
made. It is material to the controversy in question and may be
reproduced;

23. To what Court application lies.

(1) Where the several Courts having jurisdiction are
subordinate to the same Appellate Court, an application
under section 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate
Courts but to the same High Court, the application shall be
made to the said High Court.

(3) Where such Courts are subordinate to different High
Courts, the application shall be made the High Court within
the local limits of whose jurisdiction the Court in which the
suit is brought is situate.

(emphasis supplied)

22. Section 24 contains general power of transfer of any suit, appeal
or other proceeding at any stage on the application of a party or by a
Court suo motu (of its own motion). Section 24, as originally enacted
in the Code of 1908, read as under:

Section 24 – General power of transfer and withdrawal (1)
On the application of any of the parties and after notice to
the parties and after hearing such of them as desired to be
heard, or of its own motion without such notice, the High

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Court or the District Court may at any stage–

(a) transfer any suit, appeal or other proceeding pending before it for
trial or disposal to any Court subordinate to it and competent to try or
dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any
Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it
and competent to try or dispose of the same; or

(iii) re-transfer the same for trial or disposal to the Court from which it
was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn
under subsection (1), the Court which thereafter tries such suit may,
subject to any special directions in the case of an order of transfer,
either retry it or proceed from the point at which it was transferred or
withdrawn.

(3) For the purposes of this section, Courts of Additional and Assistant
Judges shall be deemed to be subordinate to the District Court.

(4) The Court trying any suit transferred or withdrawn under this
section from a Court of Small Causes shall, for the purposes of such
suit, be deemed to be a Court of Small Causes.

23. There was a cleavage of opinion on the question whether a case
could be transferred from a Court having no jurisdiction to try it. Some
High Courts have held that the language of Section 24 was very wide

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and there was no restriction on the High Court in exercising the power
of transfer merely because there was a dispute regarding jurisdiction.
Some other High Courts, however, took a contrary view. The Law
Commission considered the question and suggested amendment that a
suit or proceeding could be transferred under this section from a Court
which had no jurisdiction to try it. In the Statement of Objects and
Reasons, it was stated;

“Clause 10–There is a conflict of decisions with regard to the
question whether Section 24 applies in relation to a transfer
of a suit from a Court which has no jurisdiction to try it. The
High Court of Andhra Pradesh has held that the language of
Section 24 is very wide and there are no restrictions or
impediments in the way of the High Court exercising the
power of transfer merely because there is a dispute
regarding jurisdiction. Some other High Courts have taken a
contrary view. It is being clarified that a case may be
transferred from a Court which has no jurisdiction to try it.”

Parliament considered the recommendation of the Law Commission
and by the Code of Civil Procedure (Amendment) Act, 1976, the section
was amended in the present form. Sub Section (1) of Section 24 as
now stands ;”

Section 24 – General power of transfer and withdrawal–(1) On the
application of any of the parties and after notice to the parties and
after hearing such of them as desired to be heard, or of its own motion
without such notice, the High Court or the District Court may at any
stage–

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(a) transfer any suit, appeal or other proceeding pending before it for
trial or disposal to any Court subordinate to it and competent to try or
dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any
Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it
and competent to try or dispose of the same; or

(iii) re-transfer the same for trial or disposal to the Court from which it
was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn
under sub- section (1), the Court which is thereafter to try or dispose of
such suit or proceeding] may, subject to any special directions in the
case of an order of transfer, either retry it or proceed from the point at
which it was transferred or withdrawn.

Sub-section (1) of Section 24 as now stands, enables a High Court (or
a District Court) to transfer or withdraw any suit, appeal or other
proceeding pending before it or in any Court subordinate to it. Such
transfer can be made by the Court at any stage of the proceeding
either on an application of a party or suo motu.

24. Sub-section (2) empowers the Court ordering transfer to issue
directions for de novo trial or to proceed with the suit, appeal or other
proceeding from the point at which it was transferred or withdrawn.

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25. Sub-section (3) defines `proceeding’ which includes an `execution
proceeding’. It declares that Courts of Additional and Assistant
Judges will be deemed to be subordinate to the District Court. Sub-
section (4), likewise, states that the expression “Court of Small
Causes” includes Courts vested with the powers of a Court of Small
Causes.

26. Newly added sub-section (5) clarifies that a suit or proceeding can
be transferred from a Court which has no jurisdiction to try it.

27. Section 25, as originally enacted in the Code of 1908, enabled the
Governor-General in Council to transfer, in certain circumstances, a
suit, appeal or other proceeding from one High Court to another High
Court and read thus:

25. Power of State Government to transfer suits–

(1) Where any party to a suit, appeal or other proceeding
pending in a High Court presided over by a single Judge
objects to its being heard by him and the Judge is satisfied
that there are reasonable grounds for the objection, he shall
make a report to the Governor-General in Council, who may,
by notification in the Official Gazette, transfer such suit,
appeal or proceeding to any other High Court;

(2) The law applicable to any suit, appeal or proceeding so
transferred shall be the law which the Court in which the
suit, appeal or proceeding was originally instituted ought to

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have applied to such case.

28. The section was amended by the Government of India (Adaptation
of Indian Laws) Order, 1937. In sub-section (1), for the words
“Governor-General in Council” and “who”, the words “State
Government” and “which” were substituted. Proviso to sub-section (1)
was inserted, which read as under :-

“Provided that no suit, appeal or proceeding shall be
transferred to a High Court without the consent of the State
Government of the State in which that High Court has its
principal seat.”

A Plain reading of the above provision makes it clear that scope and
applicability of Section 25 was very much limited. It enabled the State
Government (earlier Governor-General in Council) to exercise power by
effecting transfer from one High Court to any other High Court.

29. The Law Commission considered the provision as it originally
enacted. It felt that the State Government could not be said to be an
appropriate agency for exercising power of transfer of suit, appeal or
other proceeding inasmuch as exercise of such power was a `judicial
function’. The Commission also noted that an analogous provision was
made in Section 406 of the Code of Criminal Procedure, 1973 which
empowered the Supreme Court to transfer cases and appeals from one
Court to another Court. It accordingly recommended that such wide
powers of transfer should not be retained by the State Government but
should be conferred on the Supreme Court. The recommendation was
accepted.

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30. In the Statement of Objects and Reasons, it was stated:

“Clause 12.–Section 25 of the Code empowers the State
Government to transfer suits etc. in certain circumstances
from the High Court exercising jurisdiction in the State to
another High Court. This section is very narrow in scope as it
provides only for the transfer of suit, appeal or other
proceeding pending in a High Court presided over by a
Single Judge. Besides, the State Government, does not seem
to be an appropriate agency for exercising the power of
transfer. Section 25 is, therefore, being substituted by a new
section which provides for the transfer to the Supreme Court
the existing power vested with the State Government and to
confer on the Supreme Court such wide powers of transfer
as it has in criminal cases under Section 406 of the Code of
Criminal Procedure, 1973. Further, the new section covers
transfer of cases from or to the original side of a High Court
to or from any other Civil Court. The new section is thus
wider in scope than Section 406 of the Code of Criminal
Procedure, 1973.”

Accordingly, Section 25 was substituted in the present form which
reads as under :-

25. Power of Supreme Court to transfer suits, etc (1) On the
application of a party, and after notice to the parties, and
after hearing such of them as desire to be heard, the
Supreme Court may, at any stage, if satisfied that an order

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under this section is expedient for the ends of justice, direct
that any suit, appeal or other proceeding be transferred from
a High Court or other Civil Court in one State to a High Court
or other Civil Court in any other State.

(2) Every application under this section shall be made by a
motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding
is transferred shall, subject to any special directions in the
order of transfer, either retry it or proceed from the stage at
which it was transferred to it.

(4) In dismissing any application under this section, the
Supreme Court may, if it is of opinion that the application
was frivolous or vexatious, order the applicant to pay by
way of compensation to any person who has opposed the
application such sum, not exceeding two thousand rupees,
as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding
transferred under this section shall be the law which the
Court in which the suit, appeal or other proceeding was
originally instituted ought to have applied to such suit,
appeal or proceeding.”

13. After considering the various judgments cited, the Hon’ble Apex

Court over-ruled the judgments cited in Priyavari Mehta Vs.

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Priyanath Mehta, [AIR 1980 Bombay 337], Mamta Gupta Vs.

Mukund Kumar Gupta [AIR 2000 AP 394] and Lakshmi Nagdev Vs.

Jitendra Kumar Nagdev [2004(4) MPLJ 310]. Similarly, the judgment

delivered by the Punjab and Haryana High Court in the matter of

State Bank of India Vs. Sakow Industries , Faridabad Private Limited

[AIR 1976 P H 321], was over ruled.

14. Finally, the Hon’ble Apex Court concluded in paragraph Nos.

46 to 49 as under :-

“46. Having considered the scheme of the Code as amended from
time to time, in our judgment, the law relating to transfer of
cases (suits, appeals and other proceedings) is well- settled. It
is found in Sections 22 to 25 of the Code and those provisions are
exhaustive in nature. Whereas Sections 22, 24 and 25 deal with
power of transfer, Section 23 merely provides forum and
specifies the Court in which an application for transfer may be
made. Section 23 is not a substantive provision vesting power in
a particular Court to order transfer.

47. In our considered opinion, where several Courts having
jurisdiction are subordinate to one appellate Court, an
application for transfer may be made to such appellate Court
and the Court may transfer a case from one Court subordinate
to it to another Court subordinate to it. Likewise, where such
Courts are subordinate to the same High Court, an application

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may be made and action may be taken by the High Court
transferring a case from one Court subordinate to it to any other
Court subordinate to that High Court. But where such Courts
are subordinate to different High Courts, it is only the Supreme
Court (this Court) which may pass an order of transfer. In other
words, if two courts are subordinate to different High Courts,
one High Court has no power, jurisdiction or authority to
transfer a case pending in any court subordinate to that High
Court to a Court subordinate to other High Court. It is only the
Supreme Court (this Court) which may order the transfer.

48. Section 25, as originally enacted in the Code of 1908 and the
decisions prior to Amendment Act of 1976, have no application
after substitution of Section 25 as it stands today. To us, Section
23 has no application to such cases and the only provision
attracted is Section 25.

49. The language of Section 25 also supports the view which we
are inclined to take. Sub-section (1) of Section 25 of the Code
enacts that “On the application of a party”, this Court may pass
an appropriate order of transfer. Thus, Section 25 is `self-
contained Code’ and comprises of substantive as well as
procedural law on the point. It allows a party to move the Court
by making an application as also it empowers the Court to
make an order of transfer.”

[Emphasis supplied]

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15. It was then held that every Court would have its own local or

territorial limits beyond which it cannot exercise jurisdiction. In so

far as the Supreme Court is concerned, its jurisdiction is not

circumscribed by any territorial jurisdiction and it extends over any

person or any area within the territory of this Country which is

amenable to the jurisdiction of the Supreme Court. In so far as the

High Court is concerned, it was held that the High Court exercises

jurisdiction limited to the persons and the territories within the State

in which it is established and therefore it cannot exercise jurisdiction

or pass orders transferring a case pending before a Court

subordinate to it, to another Court which is subordinate to a different

High court.

16. The learned Advocate for the wife in Durgesh (supra), had then

canvassed his submissions which are set out in paragraph No.52 as

under :-

“52. The counsel for the respondent-wife submitted that
provisions of Section 23(3) and 25 of the Code should be
harmoniously construed. Referring to Priyavari Mehta, and
Lakshmi Nagdev, it was submitted that Section 23(3) of the

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Code did not stand deleted or superseded by Section 25 of the
Code. If it is held that for transfer of a case, appeal or other
proceeding from a Court subordinate to one High Court to a
Court subordinate to another High Court, only this Court can be
approached, Section 23(3) of the Code will become nugatory,
redundant and futile. No Court of law will interpret one provision
of law which will make another provision superfluous or
ineffective. It was, therefore, submitted that it has been rightly
held that the parties must be left “to choose the forum” either
under Section 23(3) or 25 of the Code.”

17. The Hon’ble Apex Court overruled Priyavari Mehta (supra) and

Laxmi Namdeo (supra) and concluded in paragraph Nos. 53 to 56 as

under :-

“53. We are unable to uphold the
contention. In our considered view, the fallacy in

the argument lies in the fact that it presumes and presupposes
that Section 23 of the Code is a substantive provision which
authorizes a Court mentioned therein to order transfer. It is not
so. The said section, as held by us, is merely a procedural one
or a machinery provision and provides mode, method or manner
in approaching a Court for making an application. It does not
empower a Court to effect transfer. Moreover, Section 25 of the
Code is a `complete Code’ dealing with substantive as well as
procedural law. Section 23, in our opinion, therefore, cannot be
interpreted in the manner suggested by the learned counsel

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appearing for the wife.

54. After the commencement of the Constitution and
establishment of the Supreme Court (this Court), Parliament
thought it proper to amend Section 25 of the Code and
accordingly, it was substituted by empowering this Court to
order transfer from one High Court to another High Court or to
one Civil Court in one State to another Civil Court in any other
State.

55. It is, no doubt, true that even when Section 25 in the present
form was substituted by the Amendment Act of 1976, sub-
section (3) of Section 23 of the Code has neither been deleted nor
amended. That, however, is not relevant. Since in our
considered view, Section 23 is merely a procedural provision, no
order of transfer can be made under the said provision. If the
case is covered by Section 25 of the Code, it is only that section
which will apply for both the purposes, namely, for the purpose
of making application and also for the purpose of effecting
transfer. On the contrary, reading of sub-section (3) of Section 23
of the Code in the manner suggested by the learned counsel for
the respondent-wife would result in allowing inroad and
encroachment on the power of this Court not intended by
Parliament. Section 23, therefore, in our considered view, must
be read subject to Section 25 of the Code. The decisions taking a
contrary view do not lay down correct law. We, therefore,
overrule them. Even if such power was with a High Court

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earlier, it stood withdrawn with effect from January 01, 1977 in
view of Section 25 of the Code as amended by Code of Civil
Procedure (Amendment) Act, 1976.

56. We are unable to agree with the view that in such cases,
inherent powers may be exercised under Section 151 of the
Code as held by the High Court of Punjab Haryana in State
Bank of India. It is settled law that inherent powers may be
exercised ex debito justitiae in those cases, where there is no
express provision in the Code. The said power cannot be
exercised in contravention or in conflict of or ignoring express
and specific provision of law. Since the law relating to transfer is
contained in Sections 22 to 25 of the Code, and they are
exhaustive in nature, Section 151 has no application. Even that
contention, therefore, cannot take the case of respondent-wife
further.”

[Emphasis supplied]

18. Learned Advocate for the applicant/wife, in the case in hand,

submits that she has a six month’s old child and cannot travel a

distance of about 700 kms. He then submits that he would make an

application for adjournment before the Family Court at Aurangabad

indicating that the applicant/wife now desires to move the Hon’ble

Apex Court for seeking transfer of proceedings from Aurangabad to

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Hubballi in the State of Karnataka.

19. Though I am disposing off this application concluding that this

Court does not have the jurisdiction to entertain this application for

the reasons recorded, I deem it appropriate to entertain the request

of the petitioner at least to the extent of seeking an adjournment

before the Family Court at Aurangabad.

20. As such, this application is disposed off. If the applicant moves

the learned Family Court at Aurangabad in Petition No.A-447/2018

for seeking an adjournment so as to approach the Hon’ble Apex

Court, the learned Family Court would consider such application,

after hearing the husband and pass an appropriate order in the

interest of justice.

( Ravindra V.Ghuge, J.)

khs/MARCH 2019/42-d

::: Uploaded on – 06/03/2019 13/03/2019 14:51:01 :::

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