IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23rd DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.170 OF 2018 BETWEEN:
Smt.Bindhu P.S.
W/o Jayaprakash Reddy, Aged about 24 years, R/at OM Shakthi Nilaya, 2nd Main, 12th Cross, Amaravathi Layout, Bangarpet-563114. …Petitioner (By Sri S.Shivaswamy, Advocate) AND:
Sri Jayaprakash G S/o S.K.Gopal Reddy, Aged about 29 years, R/at No.15, 1st Main, 1st Cross, Near C.S.I. Church, Udayanagar, Bengaluru-560016. ...Respondent (By Sri Zahid Ali, Advocate) **** THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF CPC, PRAYING THIS HON’BLE COURT TO: (a) TRANSFER M.C.NO.1023/2017 PENDING IN THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, TO THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, KGF, KOLAR; AND ETC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioner Smt. P.S. Bindu who is the respondent in M.C.No.1023/2017 for transfer of the petition pending before the II Additional Principal Judge, Family Court, Bangalore to Principal Senior Civil Judge and Principal JMFC, KGF, Kolar and to direct that M.C.No.1023/2017 be clubbed and tried along with M.C.No.68/2017 pending on the file of Principal Civil Judge and Principal JMFC, KGF, Kolar.
2. It is the case of the petitioner that she was married to the respondent on 14.11.2013 at SVR Kalyana Mantapa, Bangarpet, Kolar as per Hindu rites and customs. Due to discord between the couple, the respondent-husband has filed petition seeking divorce against the petitioner-wife in M.C.No.1023/2017 which is pending before the II Additional Principal Judge, Family Court, Bangalore. Thereafter, the petitioner who is residing separately along with her parents at Bangarpet, KGF has filed a petition for restitution of conjugal rights under Hindu Marriage Act,1955 which is pending before the Principal Senior Civil Judge and Principal JMFC, KGF, Kolar which is numbered as M.C.No.68/2017. The petitioner-wife being a household lady is not having any income, she is totally depending on her parents for her livelihood and a small child is also residing with the petitioner-wife. The said infant child requires continuous care by the petitioner-wife.
3. The respondent- husband has filed the M.C petition No.1023/2017 at Bangalore to harass the petitioner-wife. The petitioner-wife has also filed case under Section 125 of Cr.P.C in CMC No.115/2017 before the Court of Bangarpet for maintenance. The respondent-husband has been appearing in the said case. The petitioner-wife without having any income is finding it difficult to attend the case at Bangalore. If the M.C. petition No.1023/2017 filed before the II Additional Principal Judge, Family Court, Bangalore, is transferred to the Court of Prl. Senior Civil Judge and Principal JMFC, KGF, Kolar and clubbed with M.C.No.68/2017, the petitioner-wife can conveniently attend those cases and defend herself in those matters.
4. On service of summons, the respondent- husband has filed the objections and contended that the petitioner-wife has not made out any prime facie ground for seeking transfer of petition. The respondent- husband has filed the divorce petition on 20.2.2017 before the II Additional Principal Judge, Family Court, Bangalore. After knowing the same, the petitioner-wife has filed a petition before the Principal Senior Civil Judge and Principal JMFC Court at KGF, Kolar on 29.6.2017 with a malafide intention and to harass the respondent-husband. The petitioner-wife has also filed petition under Section 125 of Cr.P.C seeking maintenance. The respondent-husband is suffering from Ankylosing Spondylities disease and he is undergoing regular treatment. As such, he is unable to travel and to attend the Courts at KGF, Kolar.
5. Further, it is contended that in order to avoid inconvenience to both the parties and for speedy disposal of all the three cases pending before various Courts may be transferred to one Court for proper adjudication. The Family Court, Bangalore City has power to adjudicate all the three cases and to dispose the said matters as early as possible. In divorce petition, the evidence of both respondent-husband and petitioner-wife are concluded. There are no valid grounds for granting the reliefs as sought for.
6. Learned counsel for the petitioner contended that after discord between the couple, the petitioner- wife was compelled to go to her parents’ house along with her minor child. The respondent-husband has filed a petition seeking divorce but the petitioner-wife who is willing to reside with her respondent-husband has filed a petition for seeking conjugal rights which is pending before the Principal Senior Civil Judge & Principal JMFC, KGF, Kolar. In order to maintain herself and her child, she has filed a application under Section 125 of Cr.P.C seeking maintenance which is pending before the JMFC Court of Bangarpet, Kolar.
7. The petitioner being in financially disadvantageous position and for the reason for taking care of her minor child, is finding it difficult to attend the Court proceedings at II Additional Principal Judge, Family Court, Bangalore, thus, it is necessary to transfer M.C.No.1023/2017 pending before the II Additional Principal Judge, Family Court, Bangalore to Principal Senior Civil Judge and Principal JMFC, KGF, Kolar. In support of his contentions, learned counsel for petitioner has relied upon decision in the case of M.V. Rekha v/s. Sathya Alias Suraj reported in 2011 (2) Kar.L.J. 643.
8. On the other hand, learned counsel for respondent submitted that the respondent-husband has filed M.C. No.1023/2017 on 20.02.2017. Thereafter, as a counter blast, petitioner-wife has filed M.C.No.68/2017 seeking restitution of conjugal rights which is pending before the Principal Senior Civil Judge and Principal JMFC, KGF, Kolar only with an intention to harass the respondent-husband. Due to the health problem, the respondent-husband is unable to travel to KGF, Kolar. In the event of transferring the case pending before the Principal Senior Civil Judge and Principal JMFC, Kolar and maintenance petition pending before the Bangarpet, Kolar to the II Additional Principal Judge, Family Court, Bangalore, all these cases can be disposed off at an early date. The respondent-husband is willing to pay the traveling expenses of the petitioner. Since the evidence of both the parties are led in the M.C. petition No.1023/2017 and is already completed, there is no point in transferring the said M.C. petition to another Court as it is going to cause hardship to the respondent-husband. The petitioner-wife being an engineering graduate was working in some company and she may even take up the job for her livelihood.
9. In view of the submissions made by the counsel the only point that arise for consideration is whether there are prime facie and valid grounds for transfer of M.C. petition as claimed by the petitioner- wife is made out.
“8. 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:
“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-
(a) ……… (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.”
9. the section confers general power to transfer, withdraw and re-transfer suits, appeals or other proceedings at any stage on the application of a party. The power of the High Court and District Judge are concurrent. The Court may also exercise the power suo motu. The section postulates that the Court to which the suit or appeal or other proceeding is transferred should be competent to try or dispose of the same. The contention of the learned Counsel for the respondent is that the cause of action for filing of M.C.No.159 of 2009 has accrued at Mysore and that the Family Court at Bangalore is not competent to try the said case. In other words, the Family Court at Bangalore has no territorial jurisdiction to try the case. Therefore, the question for consideration is whether under Section 24 of the Code of Civil Procedure, a case can be transferred from a Court where it was instituted and competent to try and has territorial jurisdiction to try the case, to some other Court, which does not have territorial jurisdiction. The cause of action implies a right to sue.
The material facts which are imperative for the suitor to allege and prove constitute the cause of action. The point involved in this case is a pure question of law and its decision depends upon the construction of the words ‘competent to try’ occurring in Section 24(1) of the Code of Civil procedure.”
10. It is an admitted fact that the petitioner-wife has filed one more petition before the JMFC Court, Bangarpet for maintenance.
11. In the case of M.V. Rekha v/s. Sathya Alias Suraj reported in 2011 (2) Kar.L.J. 643, it is held thus:
“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.”
Even in the present case, as admitted by the parties, M.C. No.1023/2017 filed for divorce is pending before the II Additional Principal Judge, Family Court, Bangalore and other petition filed by the petitioner-wife for restitution of conjugal rights is pending before the Principal Senior Civil Judge and Principal JMFC, KGF, Kolar and one more petition filed by the petitioner-wife seeking maintenance is pending before the Bangarpet Court. When two proceedings in different Courts which rise common question of fact and law, the decision is interdependent, it is desirable that all the cases are tried together with the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.
12. Learned counsel for respondent has relied upon three decisions of Hon’ble Supreme Court i.e (i) in the case of Anindita Das v/s. Srijit Das reported in (2006) 9 SCC 197, (ii) in the case of Neelam Bhatia v/s. Satbir Singh Bhatai in (2004) 13 SCC 95 and (iii) in the case of Usha George v/s. Koshy George in (2000) 10 SCC 95 but, in these three decisions, there is no mention about two or three proceedings pending between the husband and wife before different Courts. Only on considering the stage of cases, the Hon’ble Supreme Court has opined that the travel expenses can be borne by the respondent-husband. Thus, I am of the opinion that these decisions are not aptly applicable to the case on hand.
13. Learned counsel for respondent has strenuously contended that in M.C. Petition No.1023/2017 pending before the II Additional Principal Judge, Family Court, Bangalore, the evidence was led by both the parties and case is for arguments. Since the petition filed by the respondent-husband was earlier to that of the petition filed by the petitioner-wife for seeking restitution of conjugal rights, those cases which are pending before the KGF Courts shall be transferred to the II Additional Principal Judge, Family Court, Bangalore and shall be tried together. But in the instant case, as could be seen, petitioner-wife is residing in her parents’ house at Bangarpet along with her minor child.
14. It is contended that the petitioner-wife being an Engineering graduate was working. It is only filed after filing of objections to the petition for restitution of conjugal rights, she has left the job and she has taken up another job. But to substantiate the said contention, no records/materials are forthcoming either to show that she has left the job or she has taken up a new job and she has sufficient income of her own.
15. It is also contended that the respondent has got health problems. As such, he is unable to travel to other places to attend the Court proceedings. In support of that contention, no records are placed. Thus, the ground urged by learned counsel for respondent is not valid.
16. As already stated above, there are three proceedings pending in different Courts which rises the common question of fact and law. As such, the decisions in both the cases namely M.C. No.1023/2017 for divorce and M.C.No.68/2017 for restitution of conjugal rights are interdependent. Therefore, both the cases have to be clubbed and tried together in order to avoid multiplicity of trial of same issues and to avoid conflict of decisions. The grounds urged by learned counsel for petitioner are that she is unable to maintain herself and she is unable to look after her minor child because of financial difficulty. She is also finding it difficult to attend the cases at Family Court, Bangalore.
17. In the light of the decision in the case of M.V. Rekha v/s. Sathya Alias Suraj reported in 2011 (2) Kar.L.J. 643 and submissions made, I am of the opinion that there are valid grounds for transfer the petition. As a result, Civil Petition succeeds and accordingly, the following:
ORDER (i) Civil Petition is allowed.
(ii) M.C.No.1023/2017 pending before the II Additional Principal Judge, Family Court, Bangalore is ordered to be transferred to Principal Senior Civil Judge and Principal JMFC, KGF, Kolar and the said case shall be clubbed with M.C.No.68/2017 which is filed by the petitioner-wife for restitution of conjugal rights.
(iii) No orders as to costs.
Sd/- JUDGE SSD