TA No. 743 of 2016 1
TA No. 781 of 2016
HIGH COURT FOR THE STATES OF PUNJAB HARYANA
AT CHANDIGARH
TA No. 743 of 2016
Date of decision: 28.3.2017
Shikha Nanda …Applicant
Versus
Sushant Nanda …Respondent
2. TA No. 781 of 2016
Shikha Nanda …Applicant
Versus
Sushant Nanda …Respondent
CORAM: HON’BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Naresh Gopal Sharma, Advocate
for the applicant.
Mr. H.S. Randhawa, Advocate for
Mr. P.S. Ahluwalia, Advocate
for the respondent.
RAMESHWAR SINGH MALIK, J. (Oral)
These two transfer applications bearing TA Nos. 743 and 781 of
2016 are being decided together, as both these applications are arising out of
the same set of facts and between the same parties. However, for the facility
of reference, facts are being culled out from TA No. 743 of 2016.
Applicant, by way of these two transfer applications under
Section 24 read with Section 151 of the Code of Civil Procedure (for short
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‘CPC’), seeks transfer of the petition under Section 9 of the Hindu Marriage
Act, 1955, as well as petition under Sections 6 and 25 of the Guardian and
Ward Act, 1890, titled as Sushant Nanda Vs. Shikha Nanda, filed by
respondent husband from Dasuya, District Hoshiarpur to Nakordar, District
Jalandhar.
Notice of motion was issued and learned trial court was directed
to adjourn the case beyond the date fixed before this Court.
Heard learned counsel for the parties.
It has gone undisputed between the parties that the applicant-
wife, along with her three minor children, is staying with her parents at her
parental village in District Jalandhar. Respondent-husband is not paying any
amount of maintenance either for the applicant or for the minor children.
Since applicant-wife is not having any regular source of income, she is
dependent on her parents. Distance between Dasuya, District Hoshiarpur
and Nakordar, District Jalandhar, is more than 80 Kms.
The only argument raised by the learned counsel for the
respondent that respondent-husband is having apprehension, at the hands of
the applicant-wife and her family members, has been duly considered but
found misplaced and not worth acceptance.
After giving anxious consideration to the contentions raised and
careful perusal of the record of the case, this Court is of the considered
opinion that both these transfer applications have been found to be fit cases
for ordering the transfer of abovesaid petitions from Dasuya, District
Hoshiarpur to Nakordar, District Jalandhar. It is so said because all the
abovesaid undisputed facts clearly go in favour of the applicant-wife and
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against the respondent-husband. In the circumstances of the cases, it will not
only be inconvenient but would be very difficult for the applicant-wife to go
from Nakordar, District Jalandhar to Dasuya, District Hoshiarpur, to pursue
the litigation imposed on her by the respondent-husband. Convenience of the
wife in transfer applications, like the cases in hand, arising out of a
matrimonial dispute, is one of the relevant considerations. Further, distance
between the two places, financial status of the wife, her source of income,
her age as well as her responsibility for bringing up the minor children, are
the relevant factors to be considered, while deciding the transfer applications
like the present ones.
The cardinal principle for exercise of power under Section 24 of
the Civil Procedure Code is that the ends of justice demand the transfer of
the suit, appeal or other proceeding. In matrimonial matters, wherever the
Courts are called upon to consider the plea of transfer, the Courts have to
take into consideration the economic soundness of either of the parties, the
social strata of the spouses and behavioural pattern, their standard of life
antecedent to marriage and subsequent thereto and circumstances of either of
the parties in eking out their livelihood and under whose protective umbrella
they are seeking their sustenance to life. Generally, it is the wife’s
convenience which must be looked at by the Courts, while deciding a
transfer application.
The view taken by this Court also finds support from the
following judgments of the Hon’ble Supreme Court, as well as different
High Courts, including this Court: –
1. Mrs. Maneka Sanjay Gandhi and another Vs. Miss Rani
Jethmalani, AIR 1979 (SC) 468.
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2. Dr. Subramaniam Swamy Vs. Ramakrishna Hegde, 1990
(1) SCC 4.
3. Neelam Kanwar Vs. Devinder Singh Kanwar, 2000 (10)
SCC 589.
4. Sumita Singh Vs. Kumar Sanjay and another, AIR 2002
(SC) 396.
5. Mangla Patil Kale Vs. Sanjeev Kumar Kale, 2003 (10) SCC
280.
6. Fatema Vs. Jafri Syed Husain @ Syed Parvez Jafferi, AIR
2009 (SC) 1773.
7. Anjali Ashok Sadhwani Vs. Ashok Kishinchand Sadhwani,
AIR 2009 (SC) 1374.
8. Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi
Friends Education Trust and others, AIR 2008 SC 1333.
9. Nisha Vs. Dharmenda Pratap Singh Rathore, 2015 (3) All.
LJ 168.
10. M.V. Rekha Vs. Sathya, 2011 (2) HLR 34.
11. Sneha Vs. Vinayak, 2013 ILR (Karnataka) 165.
12. Rimpal Vs. Balinder Kumar, 2010 (7) RCR (Civil) 286.
13. Anju Vs. Sanjay, 2011 (6) RCR (Civil) 112.
14. Komal Devi @ Komal Kumari @ Komal Rani Vs.
Harbhajan Singh, 2012 (8) RCR (Civil) 84.
The relevant observations made by the Hon’ble Supreme Court
in para 14 of its judgment in Kulwinder Kaur @ Kulwinder Gurcharan
Singh’s case (supra), which can be gainfully followed in the present case,
read as under: –
“Although the discretionary power of transfer of cases cannot
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be imprisoned within a strait-jacket of any cast-iron formula
unanimously applicable to all situations, it cannot be gainsaid
that the power to transfer a case must be exercised with due
care, caution and circumspection. Reading Sections 24 and 25
of the Code together and keeping in view various judicial
pronouncements, certain broad propositions as to what may
constitute a ground for transfer have been laid down by Courts.
They are balance of convenience or inconvenience to plaintiff
or defendant or witnesses; convenience or inconvenience of a
particular place of trial having regard to the nature of evidence
on the points involved in the suit; issues raised by the parties;
reasonable apprehension in the mind of the litigant that he
might not get justice in the court in which the suit is pending;
important questions of law involved or a considerable section
of public interested in the litigation; interest of justice
demanding for transfer of suit, appeal or other proceeding, etc.
Above are some of the instances which are germane in
considering the question of transfer of a suit, appeal or other
proceeding. They are, however, illustrative in nature and by no
means be treated as exhaustive. If on the above or other
relevant considerations, the Court feels that the plaintiff or the
defendant is not likely to have a fair trial in the Court from
which he seeks to transfer a case, it is not only the power, but
the duty of the Court to make such order.”
Again, deliberating on an identical issue, in the case of
Dr. Subramaniam Swamy (supra), the Hon’ble Supreme Court held as
under: –
“The question of expediency would depend on the facts and
circumstances of each case but the paramount consideration
for the exercise of power must be to meet the ends of justice. It
is true that if more than one court has jurisdiction under the
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TA No. 781 of 2016Code to try the suit, the plaintiff as dominus litis has a right to
choose the Court and the defendant cannot demand that the suit
be tried in any particular court convenient to him. The mere
convenience of the parties or any one of them may not be
enough for the exercise of power but it must also be shown that
trial in the chosen forum will result in denial of justice. Cases
are not unknown where a party seeking justice chooses a forum
most inconvenient to the adversary with a view to depriving
that party of a fair trial. The Parliament has, therefore,
invested this Court with the discretion to transfer the case from
one Court to another if that is considered expedient to meet the
ends of justice. Words of wide amplitude- for the ends of
justice- have been advisedly used to leave the matter to the
discretion of the apex court as it is not possible to conceive of
all situations requiring or justifying the exercise of power. But
the paramount consideration must be to see that justice
according to law is done; if for achieving that objective the
transfer of the case is imperative, there should be no hesitation
to transfer the case even if it is likely to cause some
inconvenience to the plaintiff. The petitioner’s plea for the
transfer of the case must be tested on this touchstone.
(emphasis supplied)”
The above-said law laid down by the Hon’ble Supreme has also been
followed by this Court in order dated 16.03.2016 passed in TA No.945 of
2015 (Sushma and others Vs. Kapil @ Sahil Bansal) and TA No.797 of 2015
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(Jagroop Kaur Vs.Varinder Singh Bhela @ Tony) which, in turn, were based
on the judgments of the Hon’ble Supreme Court, as well as different High
Courts, including this Court.
Reverting to the facts of the cases in hand and respectfully
following the law laid down by the Hon’ble Supreme Court as well as
different High Courts, including this Court, it is unhesitatingly held that
applicant-wife is entitled for getting the abovesaid petitions transferred from
Dasuya, District Hoshiarpur to Nakordar, District Jalandhar, so as to enable
her to pursue the litigation without facing any undue hardship or harassment
at the hands of the respondent-husband. It is the settled principle of law that
justice is not only to be done but it should also appear to have been done. If
the applicant wife is forced to go from Nakordar, District Jalandhar to
Dasuya, District Hoshiarpur, it would amount to denial of justice to her.
Thus, to strike a balance between the parties with a view to do complete and
substantial justice and proceeding on a holistic view of the matter, this Court
is of the considered view that it would be just and expedient to transfer the
abovesaid petitions from Dasuya, District Hoshiarpur to Nakordar, District
Jalandhar.
No other argument was raised.
Considering the peculiar facts and circumstances of the cases
noted above, coupled with the reasons aforementioned, this Court is of the
considered view that both these transfer applications deserve to be accepted
and the same are hereby allowed. Both the abovesaid petitions filed by the
respondent-husband are ordered to be transferred from Dasuya, District
Hoshiarpur to Nakordar, District Jalandhar.
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Accordingly, the learned District Judge, Hoshiarpur, is directed
to send complete record of the abovesaid petitions to the learned District
Judge, Jalandhar, at an early date but in any case within a period of one
month from the date of receipt of certified copy of this order.
The learned District Judge, Jalandhar, is also directed to assign
both the abovesaid cases to the learned court of competent jurisdiction at
Nakodar, for an early decision, in accordance with law.
With the abovesaid observations made and directions issued,
both these transfer applications stand disposed of, however, with no order as
to costs.
28.3.2017 (RAMESHWAR SINGH MALIK)
AK Sharma JUDGE
Whether Speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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