IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.331 OF 2018 BETWEEN:
SMT.A.C.NAGARATHNA, AGED ABOUT 43 YEARS, W/O SRI.T.H.HALESH, RESIDING AT:-
C/O SRI.A.CHANDRAPPA, DOOR NO.691/12, 1ST MAIN, K.B.BADAVANE, DAVANAGERE – 577002. …PETITIONER (BY SRI.MALLIKARJUNA K, S.D.N.PRASAD AND M.N.UMESH, ADVOCATES) AND:
SRI.T.H.HALESH, S/O SRI.T.H.HALASIDDAPPA, AGED ABOUT 47 YEARS, TEACHER, GOVERNMENT PRIMARY SCHOOL, LINGAPURA, DAVANAGERE DISTRICT -577002, RESIDING AT:-
RAMPURA VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT – 577002. ...RESPONDENT THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF CPC, PRAYING TO WITHDRAW M.C.NO.20/2017 PENDING ON THE FILE OF THE HON’BLE SENIOR CIVIL JUDGE, AT:-HARIHAR AND TRANSFER THE SAME TO THE HON’BLE FAMILY COURT, AT: DAVANAGERE AND GRANT SUCH OTHER RELIEFS AS THIS HON’BLE COURT DEEMS FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the counsel for the petitioner. Notice to the respondent was served, but he is unrepresented.
2. Though this petition coming on for admission, it is heard finally on merits.
3. Petitioner is before this court seeking transfer of M.C. No.20/2017 pending on the file of Senior Civil Judge at Honnali to the Family Court at Davanagere.
4. The petitioner is the wife and the respondent is the husband. They were married on 23.12.2001. Out of the wedlock the petitioner has delivered a female child who is aged about 14 years. The Petitioner has filed a C. Misc. claiming maintenance against the respondent before the Family Court at Davanagere which is numbered as C. Misc. No.205/2009. Earlier the joint petition was filed by both the parties in M.C. No.263/2011 before the Family Court, Davanagere which was decreed. As per the said decree the respondent husband was under the obligation to pay a permanent alimony of Rs.5,50,000/-. In order to evade the payment of said permanent alimony the respondent remarried the petitioner on 4.3.2013. Thereafter he did not fulfill his obligation of setting up the house at Davanagere. As such, there were some matrimonial disputes. At present the petitioner is residing in her parents’ house along with her daughter. She is unable to attend the Court proceedings at Honnali due to financial problems.
5. In view of the submission of the counsel, the only question that arises for consideration is that, whether there are valid grounds for transfer of M.C. No.20/2017 from Honnali to Davanagere as prayed for?
6. According to the petitioner even after remarriage she could not lead marital life with the respondent as he did not set up the house at Davanagere which was very much essential for education of the girl child. The petitioner being the house wife, do not have independent income, as a result of which she is put to inconvenience in attending the Court proceedings at Honnali.
7. Section 24 of the Code of Civil Procedure provides for the general power of transfer and withdrawal of the suits, appeal or other proceedings. The relevant provision is sub-section (1)(b) of Section 24, which is as under:
“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,— (a) ….
(b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it; and (i) try to 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.
8. In the case of M.V. Rekha v/s. Sathya Alias Suraj reported in 2011 (2) Kar.L.J. 643, it is held as under:
“15. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that ends of justice demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever 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 thereon and the 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 while considering transfer. Further, when two proceedings in different Courts which raise common question of fact and law and when the decisions are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.”
9. As could be seen from the records it is seen that the wife has filed a maintenance petition before the Family Court at Davanagere and she has to look after her minor daughter. In view of the principles laid down in the aforesaid decision when two proceedings in different Courts which raise a common question of fact and law and when the decisions are inter dependent it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions. Even in the instant case the petitioner has claimed maintenance by filing a petition before the Family Court. In the event of transferring the petition filed before the Honalli Court, to the Family Court at Davanagere both the matters can be heard together.
10. For the foregoing reasons, the civil petition is allowed. M.C. No.20/2017 pending on the file of Senior Civil Judge at Honnali is transferred to the Family Court at Davanagere.
Sd/- JUDGE ykl