Aravinda Raja v. Aditya Rana and S. Deepa

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 Tr.Appeal(C).No. 10 of 2009() ----------------------------AGAINST THE JUDGEMENT/ORDER IN Tr.PC.83/2009 Dated 08/06/2009 .................... APPELLANT/PETITIONER: ----------------------------------------- ARAVINDA RAJA, `GEMINI', PADIVATTOM, EDAPPALLY P.O., KOCHI-682 024. BY ADV. SRI.MOHAN PULIKKAL SRI.REJI GEORGE SMT.MANJU RAJAN ## RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. ADITYA RANA, MINOR AGED 8 YEARS, REPRESENTED BY MOTHER AND NATURAL GUARDIAN S.DEEPA, FLAT NO.J-9B, ROYAL GARDENS REFINERY ROAD, OPPOSITE MILMA, TRIPUNITHURA. 2. S. DEEPA, FLAT J-9B, ROYAL GARDENS REFINARY ROAD, OPP.MILMA, TRIPUNITHURA. ADV. SRI.M.R.ANANDAKUTTAN FOR R1 & R2 SMT.M.A.ZOHRA FOR R1 & R2 SRI.R.S.MADHU FOR R1 & R2 SRI.MAHESH ANANDAKUTTAN FOR R1 & R2 THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON 21/01/2010 DELIVEREDED THE FOLLOWING: ## **K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## Tr.A.No. 10 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of January, 2010 ## **JUDGMENT** ## **Joseph Francis, J.** The appellant herein is the petitioner in Tr.P(C) No.83 of 2009 on the file of this Court. Respondents 1 and 2 herein are the respondents 1 and 2 in that petition. 2. The appellant filed Transfer petition No. 83 of 2009 seeking transfer of two suits, viz. O.S. No. 222 of 2009 on the file of the Munsiff's Court, Trivandrum and O.S.No. 40 of 2009 on the file of the Munsiff Court, Paravur, Kollam District, in which he is the defendant, to Ernakulam Sub court, to be tried along with O.S. No. 1065 of 2007 filed by the appellant, in which the respondents are the defendants. 2 ## Tr.A.No. 10 of 2009 3. The respondents filed counter contending that the transfer sought for is not allowable as it lacks bonafides. The matter involved in all the suits, according to the respondents, are either within the Munsiff Court, Paravur or the Munsiff Court, Trivandrum. After the death of the former husband, the second respondent has remarried and her present husband is at present in Gulf and she, along with the minor child, is residing with her parents at Paravur in Kollam. Therefore, the transfer of the case to Ernakulam as desired by the petitioner would cause severe hardship and irreparable injury to the respondents. 4. The learned Single Judge, on considering the matter, observed that whatever that be, on the facts and circumstances presented in the case, it appears that driving the respondents in the petition to prosecute the suits filed by them at Paravur, Kollam District and Thiruvananthapuram along with the suit preferred by the petitioner at Ernakulam would cause them 3 ## Tr.A.No. 10 of 2009 severe hardship and misery and that petition was dismissed. Against that order, the petitioner filed this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the respondents. 6. Admittedly the appellant is residing at Edapally in Ernakulam District. The learned counsel for the respondents admitted that the respondents are now residing at Tripunithura in Ernakulam District. The learned counsel for the respondents, relying on the decision of the Apex Court reported in **Lakshmi Narain v. First Addl. District judge** (AIR 1964 SC 489), argued that the suits pending before the Paravur and Trivandrum Courts cannot be transferred to the Sub Court, Ernakulam as the Sub Court, Ernakulam has no territorial jurisdiction to try those suits. That decision is not applicable to the facts of this case. In that case it was held that the appeals, which the High Court alone has pecuniary jurisdiction to hear, cannot be transferred to 4 Tr.A.No. 10 of 2009 the District Court, which has no pecuniary jurisdiction to hear that appeals. 7. In the decision reported in **Kulwinder Kaur alias Kulwinder Gurucharan Singh v. Kandi Friends Education** **Trust** (AIR 2008 SC 1333) it was held that the High Court cannot transfer suits without recording any reasons. The learned counsel for the appellant invited our attention to the decision of this Court reported in **Pappammal v. Bhagavathy Appan** (1984 KLT 916), in which it was held: The power under Sec.24 of C.P.C. And S.21 of the Hindu Marriage Act has to be exercised on a consideration of all relevant aspects. In considering this question of transfer, the general disadvantageous situation of a wife cannot be overlooked. The contention that the transferee court has no jurisdiction at all, would not be a serious impediment in 5 ## Tr.A.No. 10 of 2009 ordering the transfer. As a general principle, it is now fairly settled that an allegation that the transferee court has no jurisdiction to try the suit would not bar the High Court in exercising the power of transfer. Merely because there is a dispute regarding jurisdiction, the High Court is not rendered powerless in effecting a transfer, when the transfer is otherwise justified.” 8. The word 'competent' as stipulated under Section 24 C.P.C. does not refer to territorial jurisdiction, but only to the pecuniary value and nature of suits, which the Court has got jurisdiction to try. It is worthwhile to mention that Section 15 of the C.P.C. only requires institution of the suits in the Court of lowest grade competent to try it and does not preclude the transfer of a suit instituted to a superior court. 9. The disputes in all the suits relate to devolution of rights over the properties left by the appellant's late parents. 6 ## Tr.A.No. 10 of 2009 The 1[st] respondent, being the son of the predeceased son of the appellant's parents, is the only other legal heir to the properties, apart from the appellant. The second respondent is the widow of the appellant's deceased brother. She has remarried in 2004 and is having another child in her present wedlock. The issue involved in the suits before the Ernakulam Sub Court and Paravur Munsiff's Court relate to the validity of Deed No. 1047 of 2007 of the Paravur Sub Registry and the issue involved in the suit before the Munsiff's Court Trivandrum is the validity of a document styled as a will executed jointly by the appellant's parents, which is also an additional issue in the suit at Paravur Munsiff's Court. 10. Further, the subject matter of the suits at Ernakulam and Paravur is regarding the properties originally belonging to the appellant's late father, whereas the subject matter of the suit at Trivandrum is the property left by the appellant's late mother. 7 ## Tr.A.No. 10 of 2009 Thus issues in all the suits are interlinked and warrants to be tried and decided by a single court. 11. The suit before the Principal Sub Court, Ernakulam was filed on 12.12.2007. The suits before the Munsiff's Courts at Trivandrum and Paravur were filed on 29.01.2009 and 07.02.2009 respectively. The appellant is employed and residing at Ernakulam and the respondents are residing at Tripunithura. The 1[st] respondent minor is studying in Chinmaya Vidyalaya, Tripunithura. 12. One of the objections raised by the learned counsel for the respondents is that the second respondent's father, who is conducting the case, is residing at Paravur, Kollam District and the transfer of the case to Ernakulam will cause inconvenience to him in conducting the case. That is not a sufficient ground to reject the application for transfer. Another objection raised by the learned counsel for the respondents is that the territorial 8 ## Tr.A.No. 10 of 2009 jurisdiction of the Sub Court, Ernakulam is under challenge in O.S.No. 1065 of 2007. That is also not a sufficient ground to reject the application for transfer, if it is allowable otherwise. Since the issues involved in all the three suits are interconnected and some of the issues are common and based on common question of facts and there is possibility of having conflicting decisions if they are tried at different courts. Therefore transfer of O.S.No. 222 of 2009 on the file of the Munsiff Court, Trivandrum and O.S.No. 40 of 2009 on the file of the Munsiff Court, Paravur, Kollam District to Sub Court, Ernakaulam, in which O.S.No. 1065 of 2007 is pending, would be desirable to avoid conflicting decisions on the issues raising the same question of facts and law. 13. Accordingly, this appeal is allowed. The order dismissing Tr.P.C.No.83 of 2009 on the file of this Court is set aside and that petition is allowed. O.S.No. 222 of 2009 on the 9 ## Tr.A.No. 10 of 2009 file of the Munsiff Court, Trivandrum and O.S.No. 40 of 2009 on the file of the Munsiff Court, Paravur, Kollam are transferred to the Sub Court, Ernakulam, in which O.S.No. 1065 of 2007 is pending. There is no order as to cost. It is made clear that this judgment will not be a bar for the Sub Court, Ernakulam in considering the question of territorial jurisdiction in O.S.No. 1065 of 2007. **(K. M. JOSEPH)** Judge **(M.L. JOSEPH FRANCIS)** Judge tm