TA No.167 of 2017 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
TA No.167 of 2017
Date of decision: 29.03.2017
Suman
… Applicant
Vs.
Rajbala and others
… Respondents
CORAM: HON’BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. P.S. Dhaliwal, Advocate
for the applicant.
None for the respondents.
*******
RAMESHWAR SINGH MALIK, J. (ORAL)
Applicant, by way of instant transfer application under Section 24
of the Code of Civil Procedure (for short ‘CPC’), seeks transfer of a petition
under Sections 7, 10 and 25 of the Guardian and Wards Act, 1890 (‘the Act’ for
short) titled as Rajbala and another Vs. Suman and others filed by respondents
No.1 and 2 from Rohtak to Fatehabad.
Notice of motion was issued.
As per office report dated 27.03.2017, service is complete.
However, neither anybody has come present on behalf of the respondents to
oppose the present transfer application nor any request for pass over has been
made.
Heard learned counsel for the applicant.
It has gone undisputed before this Court that the applicant, along
with her two minor children, is living with her parents at Fatehabad. Since the
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applicant is not having any regular source of income, she is dependent on her
parents. Distance between Rohtak and Fatehabad is more than 100 kilometers.
Other litigations between the parties, at the instance of the applicant, are also
pending at Fatehabad.
In view of the abovesaid undisputed fact situation of the case, this
Court feels no hesitation to conclude that it is just and expedient to transfer the
abovesaid petition from Rohtak to Fatehabad. It is so said because all the
abovesaid undisputed facts clearly go in favour of the applicant and against
the respondents. In the circumstances of the case, it will not only be
inconvenient but would be very difficult for the applicant to go from
Fatehabad to Rohtak to pursue the litigation imposed on her by the
respondents.
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: –
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1. Mrs. Maneka Sanjay Gandhi and another Vs. Miss Rani
Jethmalani, AIR 1979 (SC) 468.
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 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,
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TA No.167 of 2017 4caution 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
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TA No.167 of 2017 5the exercise of power must be to meet the ends of justice. It is
true that if more than one court has jurisdiction under the Code
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 abovesaid 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
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2015 (Sushma and others Vs. Kapil @ Sahil Bansal) and TA No.797 of 2015
(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 case 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 is entitled for getting the abovesaid petition transferred from Rohtak
to Fatehabad, so as to enable her to pursue the litigation without facing any
undue hardship or harassment at the hands of the respondents. 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 is forced to go from Fatehabad to Rohtak, 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 petition from Rohtak to
Fatehabad.
No other argument was raised.
Considering the peculiar facts and circumstances of the case
noted above, coupled with the reasons aforementioned, this Court is of the
considered view that instant transfer application deserves to be accepted and
the same is hereby allowed. Petition under Sections 7, 10 and 25 of the Act
titled as Rajbala and another Vs. Suman and others filed by the respondents is
ordered to be transferred from Rohtak to Fatehabad.
Accordingly, the learned District Judge, Rohtak is directed to
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send complete record of the abovesaid petition to the learned District Judge,
Fatehabad 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, Fatehabad is also directed either to
decide the case himself or assign it to the learned Court of competent
jurisdiction, for an early decision, in accordance with law.
With the abovesaid observations made and directions issued,
present transfer application stands disposed of, however, with no order as to
costs.
[ RAMESHWAR SINGH MALIK ]
29.03.2017 JUDGE
vishnu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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