IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH MONDAY THIS THE TWENTY SECOND DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE S.RAVI KUMAR TR.C.M.P. No.269 of 2014 Between: Parvathi . PETITIONER And K.Siva Kumar . RESPONDENT The Court made the following:
THE HON’BLE SRI JUSTICE S.RAVI KUMAR TR.C.M.P No.269 of 2014
ORDER:
This petition is filed to withdraw divorce O.P.No.103 of 2009 from Principal Senior Civil Judge, Anantapur and transfer the same to Family Court, Bellary, Karnataka State.
Wife filed this petition stating that the subject OP has to be transferred to Bellary, Karnataka State on the ground of her convenience.
Otherside filed counter contending that this Court has no jurisdiction to entertain the petition.
Heard both sides.
Advocate for petitioner submitted that as per Sec.23(3) of CPC this Court can entertain this petition.
It is useful to refer Section 23 of CPC for appreciating the submissions of the learned Advocate for petitioner.
“Section 23: To what Court application lies:
(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under Section 22 shall be made to the Appellate Court;
(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court;
(3) Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.
The power under Section 23 CPC is in respect of the petitions that are filed under Section 22 CPC.
Above provision is in respect of petitions filed under Section 22 CPC. A petition under section 22 is to be filed in appellate Court and where such application is to be filed are dealt with under section 23 CPC. This provision is not at all applicable to present case as original petition is sought for transfer.
General power of transfers is governed by Section 24 of CPC. In fact, this petition is also filed under Section 24 CPC and the section reads as follows:
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) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(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) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (i), the Court which (is thereafter to try or dispose of such suit or proceeding) may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn;
(3) For the purposes of this section:
(a) Courts of Additoinal and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) “proceeding” includes a proceeding for the execution of a decree or order
(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it On a plain reading of the above provision, it is clear that the powers under Section 24 CPC can be exercised only on the Courts subordinate to this Court. Admittedly, Family Court, Bellary which is in Karnataka State is not a subordinate Court to this Court. As rightly pointed out by the Advocate for the respondent, this Court has no jurisdiction to entertain this petition.
Considering the provision of Section 24 CPC, I am of the view that present petition is nothing but abuse of process of law. Therefore, this Transfer Civil Miscellaneous Petition is dismissed with costs of Rs.2,000/- (Rupees two thousand only).
Pending miscellaneous applications, if any, shall stand closed in consequence.
S.RAVI KUMAR,J Date: 22.12.2014 Dsr