IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER, 2017 BEFORE:
THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CIVIL PETITION NO.157/2017 BETWEEN:
1.SMT. JAYALAKSHMAMMA W/O LATE RANGASHAMAIAH, AGED ABOUT 77 YEARS, R/AT NO.4, 1ST MAIN ROAD, 2ND STAGE, SHOBANA NILAYA, DOMMALURU, BENGALURU-560 071.
2.SMT.SWAYAMPRABHA M.R. D/O LATE RANGASHAMAIAH, AGED ABOUT 60 YEARS, R/AT NO.4, 1ST MAIN ROAD, 2ND STAGE, SHOBANA NILAYA, DOMMALURU, BENGALURU-560 071.
3.SMT.SHOBHARANI M.R. D/O LATE RANGASHAMAIAH, W/O DR. K.S.RAJESH AGED ABOUT 53 YEARS, R/AT NO.8, 5TH CROSS, S.A.ROAD, HEBBALA, BENGALURU-560 027. ..PETITIONERS (BY SRI K.G.KAMATH, ADVOCATE) AND:
SMT. M R SULOCHANA W/O T.R.KRISHNAMURTHY, AGED ABOUT 57 YEARS, R/AT SRI.KRISHNA, 7TH MAIN, 3RD CROSS, BEHIND INDUSTRIAL ESTATE, VIDYANAGARA, TUMAKURU-572 103. ..RESPONDENT (BY SRI L MAHESH, ADVOCATE) THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF CPC, BY THE ADVOCATE FOR PETITIONERS PRAYING THIS HON'BLE COURT TO ORDER FOR THE WITHDRAWAL OF THE CASE O.S.NO.42/2017 IN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI AND TRANSFER TO CITY CIVIL COURT, SITTING IN COURT HALL NO.9 IN O.S.NO.3762/2017 AT BENGALURU.
THIS CIVIL PETITION COMING ON FOR ADMISSION THIS DAY THE COURT MADE THE FOLLOWING:
ORDER Heard both the counsels. Perused the records.
2. Petitioner has sought for transfer of O.S.No.42/2017 pending on the file of Additional Senior Civil Judge and JMFC, Madhugiri to City Civil Court sitting in CH-9 wherein another suit O.S.No.3762/2017 is pending. The grounds urged for transfer of the said case is that first petitioner is a very aged lady (77 years) suffering from various diseases. Therefore she cannot often goover to Madhugiri in order to attend the case.
3. On perusal of the records, it is seen O.S.No.42/2017 was filed on 04.04.2017 itself. It appears after service of summons another suit appears to have been filed in O.S.No.3762/2017 by the third petitioner before the City Civil Judge at Bengaluru which appears to be a subsequent suit. Both the suits are for partition and separate possession. Under the above said circumstances, when the first suit is already pending before the competent Court at Madhugiri in O.S.No.42/2017, mere medical ground is not sufficient to transfer the said case, because plaintiff is the master of his case and he can chose jurisdiction. However said court must have jurisdiction to decide the matter. So far as recording of evidence is concerned now drastic changes have been taken place and even evidence can be recorded by commission and through video conference. When such facilities are available, on health grounds the court cannot transfer O.S.No.42/2017 as prayed for. Even, otherwise parties are at liberty to move application under Section 10 of C.P.C for staying of subsequent suit because another suit is already pending which is comprehensive in nature and which can decide and adjudicate the rights of the parties.
With these observations, petition is liable to be dismissed. Accordingly, petition is dismissed.
Sd/- JUDGE SBN