Aneesh Philipose v. Sherin Kuruvilla

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944 ``` ``` TR.APPEAL(C) NO. 15OF 2022 ``` ``` AGAINST THE ORDER DATED 26.08.2022 IN Tr.P(C)NO.497 OF 2022 OF HIGH COURT OF KERALA ``` ``` APPELLANT: ``` ``` ANEESH PHILIPOSE, AGED 45 YEARS S/O K. PHILIPOS'E JOSEPH, RESIDING AT FLAT NO.6B, E1, CASTILLO, MATHER, JAWAHAR NAGAR, KADAVANTHRA, PIN - 682020 ``` ``` BY ADVS. R.LEELA ARUN SEBASTIAN M.SREELAKSHMI ``` ## **`RESPONDENT:`** ``` SHERIN KURUVILLA, AGED 41 YEARS D/O CDR.(RETD.) T.V. KURUVILLA, TC 2/3377, NO.7, SCT NAGAR, NEAR SKYLINE MAPLE HEIGHT FLAT, PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695004 ``` ``` BY ADVS. Gokul Babu .S M.ANIL PRASAD(K/1516/1995) S.JAYANT(K/731/2015) SREEKANTH S(K/770/2017) ARUN M.V.(K/943/2017) ``` ``` THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.Appeal(C)No.15 of 2022 ``` 2 ## **JUDGMENT** ## **Anil K. Narendran, J** . The respondent in Tr.P.(C)No.497 of 2022 has filed this Transfer Appeal, invoking the provisions under Section 5 of the Kerala High Court Act, 1958, challenging the order dated 26.08.2022 of the learned Single Judge in that Transfer Petition, whereby O.P.No.3087 of 2021 is ordered to be transferred from the Family Court, Ernakulam to the Family Court, Thiruvananthapuram. By the said order, the parties are given liberty to move the Family Court, Thiruvananthapuram, to seek for consolidation and joint trial of all the cases pending between the parties. O.P.No.3087 of 2021 is one filed by the petitioner, under Section 7(a) of the Family Courts Act, 1984 read with Sections 10 and 17 of the Guardian and Wards Act, 1890, for restitution of conjugal rights by directing the respondent to resume cohabitation with the petitioner, in his flat at Kadavanthra, and also a decree declaring him as the permanent custodian of the minor children, named, Neil Aneesh Philipose, aged 13 years, Dave Aneesh Philipose, aged 9 years, and Ryan Aneesh Philipose, aged 5 years. 2. In Tr.P.(C)No.497 of 2022, the petitioner entered appearance and filed counter affidavit. After considering the rival ``` Tr.Appeal(C)No.15 of 2022 ``` 3 contentions, the learned Single Judge allowed the Transfer Petition, by the order dated 26.08.2022, whereby O.P.No.3087 of 2021 pending before the Family Court, Ernakulam is ordered to be transferred to the Family Court, Thiruvananthapuram. In the said order, the learned Single Judge noticed that the respondentmother along with her minor children are residing at Thiruvananthapuram. The children are studying in a school at Thiruvananthapuram. The respondent is employed in a firm at Thiruvananthapuram and in such circumstances, it would be difficult for them to travel all the way from Thiruvananthapuram to Ernakulam to contest O.P.No.3087 of 2021. Since one of the reliefs sought for is regarding custody of the minor children, they will have to be brought from Thiruvananthapuram to Ernakulam. Moreover, various litigations are pending between the parties before the Family Court, Thiruvananthapuram and also before the Judicial First Class Magistrate Court, Thiruvananthapuram. 3. The learned Senior Counsel for the petitioner would contend that, in view of the directions contained in the judgment dated 09.06.2022 in W.A.No.674 of 2022 and the judgment dated 19.07.2022 in O.P.(FC)No.386 of 2022, the learned Single Judge went wrong in ordering transfer of O.P.No.3087 of 2021 to the ``` Tr.Appeal(C)No.15 of 2022 ``` 4 Family Court, Thiruvananthapuram. By the above judgments, a Division Bench of this Court directed Family Court, Ernakulam to ensure time bound consideration of O.P.No.3087 of 2021. The learned Senior Counsel would also point out the order dated 01.07.2022 of the Family Court, Ernakulam, in I.A.No.448 of 2022 in O.P.No.3087 of 2021, whereby the application filed by the respondent-mother to return the original petition filed by the petitioner-father, for want of territorial jurisdiction, stands rejected. 4. Per contra, the learned counsel for the respondent would contend that the reasoning of the learned Single Judge in the order dated 26.08.2022 in Tr.P.(C)No.497 of 2022, while ordering transfer of O.P.No.3087 of 2021 from the Family Court, Ernakulam to the Family Court, Thiruvananthapuram, is neither perverse nor patently illegal, warranting interference in exercise of the appellate jurisdiction of this Court under Section 5 of the Kerala High Court Act. While issuing such an order, the learned Single Judge has taken note of the fact that the respondentmother along with her minor children are staying at Thiruvananthapuram and the children are studying in a school at Thiruvananthapuram. 5. Section 24 of the Civil Procedure Code, 1908, deals with ``` Tr.Appeal(C)No.15 of 2022 ``` 5 general power of transfer and withdrawal and Section 25 deals with the power of the Supreme Court to transfer suits, etc. As per sub-section (1) of Section 24, 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) re-transfer the same for trial or disposal to the court from which it was withdrawn. 6. As per sub-section (2) of Section 24 of the Code, where any suit or proceeding has been transferred or withdrawn under sub-section (1), 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. As per sub-section (3) of Section 24, for the purposes of this section, (a) courts of ``` Tr.Appeal(C)No.15 of 2022 ``` 6 Additional 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. As per sub-section (4) of Section 24, 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. As per subsection (5) of Section 24, a suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it. 7. In **Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust [(2005) 4 KLT 865]** a Full Bench of this Court held that, when an application for transfer or withdrawal of a suit from one court is made under Section 24 of the Code of Civil Procedure, the court has to adjudicate that matter regarding transfer or withdrawal after issuing notice to the parties interested and after giving an opportunity of hearing. An order passed after such an adjudication is certainly appealable under Section 5(i) of the Kerala High Court Act. The Full Bench held further that, even though an order passed at the instance of one party to the suit by the single Judge under Section 24 of the Code is appealable under S.5(i) of the Kerala High Court Act, a word of caution is also necessary. When an appeal is filed under Section 5(i) of the Kerala ``` Tr.Appeal(C)No.15 of 2022 ``` 7 High Court Act against the order passed under Section 24 of the Code of Civil Procedure by a learned Single Judge, the Division Bench must be reluctant to interfere in the matter unless it is manifestly illegal and erroneous or carrying grave or substantial injustice. 8. The law laid down by the Full Bench in **Balan [(2005) 4 KLT 865]** was followed by a Division Bench of this Court (in which both of us are parties) in **Abraham Thomas Puthooran v. Manju Abraham and another [2022 (1) KHC 360]** . 9. In the instant case, the respondent-mother along with three minor children are residing at Thiruvananthapuram, in a tenanted premises. The children are studying in a school at Thiruvananthapuram. The respondent-mother is employed in a firm at Thiruvananthapuram. Since one of the reliefs sought for in O.P.No.3087 of 2021 is custody of the minor children, they will have to be brought from Thiruvananthapuram to Ernakulam, in case the said original petition is not transferred to the Family Court, Thiruvananthapuram. Moreover, various litigations are pending between the parties, before the Family Court, Thiruvananthapuram and the Judicial First Class Magistrate Court, Thiruvananthapuram. ``` Tr.Appeal(C)No.15 of 2022 ``` 8 10. In the judgment dated 09.06.2022 in W.A.No.674 of 2022 and the judgment dated 19.07.2022 in O.P.(FC)No.386 of 2022, a Division Bench of this Court directed the Family Court, Ernakulam to ensure time bound consideration of O.P.No.3087 of 2021. The said direction by the Division Bench will not, in any manner, affect the jurisdiction exercised by the learned Single Judge under Section 24 of the Code of Civil Procedure, while ordering transfer of O.P.No.3087 of 2021 from the Family Court, Ernakulam to the Family Court, Thiruvananthapuram. Similarly, the rejection of I.A.No.448 of 2022 in O.P.No.3087 of 2021 by the Family Court, Ernakulam, whereby the request made by the respondent-mother to return the said original petition filed by the petitioner-father, for want of territorial jurisdiction, will not stand in the way of the learned Single Judge ordering transfer of that original petition, invoking the powers under Section 24 of the Code of Civil Procedure. The reasoning of the learned Single Judge in the impugned order dated 26.08.2022 is neither perverse nor patently illegal. It cannot also be said that, while passing such an order, the learned Single Judge has committed any manifest error, warranting interference in exercise of the appellate jurisdiction of this Court under Section 5 of the Kerala High Court Act. ``` Tr.Appeal(C)No.15 of 2022 ``` 9 11. In the result, this appeal fails and the same is accordingly dismissed. 12. The Family Court, Ernakulam shall transmit the records in O.P.No.3087 of 2021 to the Family Court, Thiruvananthapuram, forthwith. The Family Court, Thiruvananthapuram shall dispose of I.A.No.6239 of 2021 in O.P.No.3087 of 2021, taking note of the directions contained in Annexure A8 judgment dated 09.06.2022 in W.A.No.674 of 2022 and Annexure R1(a) judgment dated 19.07.2022 in O.P.(FC)No.386 of 2022, as expeditiously as possible, at any rate, within a period of one month from the date of certified copy of this judgment. Registry to communicate a copy of this judgment to the Family Court, Ernakulam, forthwith. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- ## **P.G. AJITHKUMAR** **JUDGE** **yd**