JUDGMENT D. K. Seth, J.
1. After hearing Sri S. K. Verma. counsel for the applicant and Sri Vtvek Mishra. counsel for the respondent it appears thai the suit for divorce which was originally in Allahabad was transferred to Mainpuri. Mr. Verma contended that the entire bar was supporting the respondent and. therefore, he could not get any lawyer to contest the case at Mainpuri, ultimately it was dismissed in default and thereafter the application for restoration was also dismissed. All records have been made untraceable. He contends that the father of the respondent was one of the leading lawyer and very influential in Mainpuri and that two brothers of the respondent are also practicing lawyer in Mainpuri and, therefore, it was not possible for the applicant to get assistance at Mainpuri even any lawyer who had appeared on behalf of the applicant at Mainpuri, was also threatened, therefore, in such situation the present Suit No, 83 of 1993 filed under the Hindu Adoption and Maintenance Act by the respondent should be transferred to Allahabad since it is not possible for the applicant to go and contest the suit at Mainpuri. He has also contended that the suit is not maintainable since there has been a decree of divorce between the parties. After the decree of divorce, the suit under the Hindu Adoption and Maintenance Act is not maintainable, since it is the wife who can maintain the suit. After the decree of divorce, the respondent cannot be treated as wife of the. applicant, to maintain such suit. He had also raised the question regarding the maintainability of the Suit No, 83 of 1993.
2. Mr. Vjvek Mishra, counsel for the respondent on the other hand contended that the father of the respondent is no more and two other brothers are living separately from the respondent. In the counter-affidavit, all such allegations raised and non-availability of counsel are denied. He has aiso pointed out that initially two of the counsel were representing the applicant. He has also contended that it is not on account of non-availability of lawyer, the divorce suit was dismissed. On the other hand, according to him, the petitioner had discontinued the suit for divorce at Mainpuri and had got a suit filed at Vellore and obtained a decree of divorce and, therefore, the applicant did not proceed with the suit for divorce at Mainpuri. Therefore, according to him. the application should be dismissed.
3. Mr. S. K. Verma. learned counsel for the applicant on the other hand contended that the submission of Mr. Mishra cannot be sustained and had repeated his submission giving rise to the making of this application for transfer. However, in his usual fairness, he had submitted that in the meantime a decree for divorce has since been obtained at Vellore by the applicant against the respondent and on the basis whereof he has raised the question of maintainability of the suit.
4. I have heard both the learned counsel at length.
5. Admittedly while deciding an application for transfer under Section 24 of the Code of Civil Procedure, it is not open to the Court to look into the merit of the case. Whether the suit is maintainable or not. is a question which is to be gone into at the hearing of the suit. Such a question cannot be looked into while deciding the question of transfer application. The maintainability of the suit also cannot form a ground of transfer. Whether the decree obtained at Vellore is binding or not is a question that is to be gone into at appropriate stage. But in the course of deciding the application under Section 24 of Code of Civil Procedure, such question cannot be gone into.
6. It appears from the application that the applicant was posted at Bombay as Commissioner. Textile. Now it is submitted in Court by Mr. Verma that he is now posted at Tamil Nadu. It is also an admitted position that the applicant had obtained a decree of divorce at Vellore. In the application for transfer, various facts have been disclosed, but this fact was nowhere mentioned. It is also not menlioned as to how the Court at Vellore could assume jurisdiction. Inasmuch as in the application, nothing has been disclosed about any fact which relates to the rising of the cause of action at Vellore. Be that as it may. since within the scope of this application such question cannot be gone into, it is not necessary to deal with the same.
7. But the fact remains that the applicant had dragged the proceedings to Vellore against the respondent. Now he claimed that he may not be dragged to Mainpuri. !n the application for transfer, it has been mentioned that the father and brother of the respondent are practicing lawyers at Mainpuri. The respondent appears to have been married at Mainpuri, therefore, the Court at Matnpuri has Jurisdiction and such Jurisdiction cannot be questioned.
8. So far as the allegation with regard to threat, there is nothing to show that about such threat any first information report has been lodged. At the same time, even if the brothers of the respondent are practicing lawyers, it is very difficult to presume that all the lawyers would be refusing to accept the brief of the applicant. There appears to be some substance in the contention of Mr. Vivek Mishra to the extent that since the applicant had been pursuing his remedy for divorce at Vellore, he may not have pursued his proceedings at Mainpuri.
9. In such circumstances, when there are assertions by both the parties against each other, it is not possible for this Court to decide such question. On the other hand, it seems that since the petitioner had been pursuing his remedy at Vellore, he did not pursue his remedy at Mainpuri. This fact having not been disclosed by the petitioner, which fact, however, has been admitted by the ieamed counsel for the petitioner, in his usual fairness, it is open to the Court to presume that the petitioner has not come with clean hands and as such there are sufficient grounds for not believing the assertions of the petitioner, though however in a proceeding under Section 24 of the Code of Civil Procedure, the Court is not supposed to decide disputed question of fact.
10. Having regard to the entire facts and circumstances of the case, I find no reason to Interfere. The application for transfer is. therefore, dismissed.
11. However, the trial court when deciding the suit may appreciate the situation that the applicant is posted outside the State and if any prayer for accommodation is made, the same may be considered on the basis of the merit of such prayer if occasion so arises. This position should be borne in the mind of the learned trial court, but not at the cost of delay which might defeat justice and without allowing the petitioner to stagger or stall the proceedings.
12. There shall be no order as to costs.