Ayub Khan v. Shainy and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932** ## **TR.P(C).NO. 344 OF 2010()** **--------------------------------------** **OP.741/2010 OF FAMILY COURT, KOTTARAKKARA** **....................** ## **PETITIONER/RESPONDENT** **-----------------------------------------** **SRI.AYUBKHAN,AGED 41 YEARS, S/O.LATE PEERUKHAN @ PEERUKANNU RAWTHER, RESIDING AT ANPATHUPARAYIL VEEDU,ELEVARAMKUZHY MURI,7TH BLOCK,AYIRANALLOOR VILLAGE, PATHANAPURAM TALUK.** **BY ADV. SRI.ALAN PAPALI SRI.SOJAN MICHEAL** ## **RESPONDENT(S): PETITIONERS** **-------------------------------------------------** **1. SMT.SHAINY,AGED 28 YEARS,** - **D/O.SAMSUDEEN,RESIDING AT SHAINY MANZIL,KARIARA MURI,VILAKUDY VILLAGE,VILAKUDY.P.O,PATHANAPURAM TALUK,PIN-691508,KOLLAM DISTRICT.** **2. ASIF KHAN(MINOR),(REPRESENTED BY MOTHER THE IST RESPONDENT).RESIDING AT SHAINY MANZIL, KARIARA MURI,VILAKUDY VILLAGE.VILAKUDY.P.O, PATHANAPURAM TALUK.PIN-691508,KOLLAM DISTRICT.** **3. FATHIMA KHAN(MINOR),(REPRESENTED BY MOTHER THE IST RESPONDENT).RESIDING AT SHAINY MANZIL,VILAKUDY.P.O,KARIARA MURI,VILAKUDY VILLAGE, PIN-691 508,KOLLAM DISTRICT,PATHANAPURAM TALUK.** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **THOMAS P.JOSEPH, J.** **==================================== Tr.P(C) No.344 of 2010 ==================================== Dated this the 21[st] day of December, 2010** ## **O R D E R** Respondents are served on this petition but they remain absent. 2. Petitioner, the husband seeks transfer of three proceedings from Family court, Kottarakkara to Family Court, Kollam. It is stated that petitioner feels and bona fide believes that he may not get justice from Family Court, Kottarakkara in the said proceedings. 3. Respondent No.1 filed O.P. Nos.741 and 904 of 2010 and M.C. No.251 of 2010 against petitioner in Family Court, Kottarakkara seeking various reliefs. Of them, O.P. No.904 of 2010 is for an order of prohibitory injunction to restrain petitioner from contracting a new marriage. In O.P. No.741 of 2010 petitioner appeared in the Family Court through his counsel, Advocates Ravindra Kumar and Shygen. While so, O.P. No.904 of 2010 came up for hearing on 12.10.2010. The Junior counsel (Advocate Shygen) representing Advocate Ravindra Kumar took notice for **Tr.P(C) No.344 of 2010** ## -: 2 :- petitioner (respondent in the said proceeding). The counsel also made an undertaking that petitioner will not marry till 14.10.2010. O.P. No.904 of 2010 came up for hearing on 14.10.2010. Petitioner was present in court and made a statement that he has already contracted the marriage on 17.09.2010 and as the proceeding of the Judge of Family court states petitioner changed his stand and claimed that he has not remarried. Learned Judge observed that petitioner has mis-instructed his counsel who happened to make factual mistake in the submission and directed that counsel is not permitted to file his vakalath on behalf of petitioner for the above reason. Petitioner was granted time to file counter. Learned Judge also passed an interim order of injunction against petitioner marrying again. In the meantime O.P. No.741 of 2010 came up for hearing the next day (15.10.2010). Though Advocate Ravindra Kumar along with his junior had filed Vakalath for petitioner in that proceeding, the Presiding Officer ordered that petitioner is absent and set him ex parte. The case was posted for ex parte evidence. 4. It is alleging as above that petitioner filed this petition under Section 24 of the Code of Civil Procedure requesting transfer of the cases to Family Court, Kollam. Petition came up for **Tr.P(C) No.344 of 2010** ## -: 3 :- hearing on 09.11.2010 and after hearing counsel for petitioner this Court directed that further proceedings in O.P. No.741, 904 of 2010 shall stand in abeyance for a period of three weeks (from 09.11.2010). Learned counsel states that on 10.11.2010 counsel for petitioner filed an affidavit in O.P. No.741 of 2010 before Family Court, Kottarakkara deposing to the stay order passed by this Court on 09.11.2010 and requesting a week’s time to produce copy of the order. Learned counsel for petitioner has produced before me certified copy of the said affidavit. Office seal of the Family Court shows that the said affidavit was filed on 10.11.2010. A similar affidavit was taken on file by counsel in O.P. No.904 of 2010 also the same day. Learned counsel for petitioner has given me a copy of proceeding of the Family Court on 10.11.2010 in the two cases. Certified copy of proceeding in O.P. No.741 of 2010 shows that on 10.11.2010 the Presiding Officer ordered as follows: ## “Petitioner present. Affidavit filed. For hearing to 22.12.2010.” Obviously the said reference is to the presence of respondent **Tr.P(C) No.344 of 2010** -: 4 :- No.1 (petitioner in O.P. No.741 of 2010) and the affidavit referred to therein according to the learned counsel for petitioner is the ex parte proof affidavit of respondent No.1 as the case was posted for evidence of respondent to 10.11.2010. Certified copy of proceedings in O.P. No.904 of 2010 shows that on 10.11.2010 learned Judge ordered as follows: “Petitioner present. Respondent absent. No representation. Called absent. Set ex parte. For petitioner's evidence.” (Learned counsel submits that case is posted on 27.12.2010 for ex parte evidence). It is submitted by learned counsel for petitioners that on 10.11.2010 petitioner was represented in court and counsel had also referred to the affidavit (referred to above) about the stay order passed by this Court being filed on 10.11.2010. It is also submitted by learned counsel that though in O.P. No.741 of 2010 the Presiding Officer recorded on 10.11.2010 that respondent No.1 has filed affidavit, that affidavit was actually filed only on 11.11.2010. Petitioner has produced a certified photocopy of the **Tr.P(C) No.344 of 2010** ## -: 5 :- said affidavit which shows that copy of the affidavit was served on petitioner herein only on 11.11.2010 and the office seal of the Family Court shows that the affidavit was filed on 11.11.2010. In the above circumstances it is contended by learned counsel that petitioner has every reason to believe that the court is prejudiced against petitioner and hence the cases may be transferred to Family Court, Kollam. Learned counsel placed reliance on the decision of the Supreme Court in **Dav Boys Senior Secondary School v. Dav College Managing** **Committee** ([2010] 8 SCC 401) in particular the observations in paragraphs 11 and 12 referring to the decisions in **Kulwinder Kaur v. Kandi Friends Education Trust** - ([2008] 3 SCC 659) where it is held that reasonable apprehension in the mind of litigant that he might not get justice in the court in which the suit is pending is a ground for transfer. 5. When an affidavit was filed before the Presiding Officer on 10.11.2010 stating about the order of stay granted by this Court though copy of the order itself was not produced for which counsel requested time, I am persuaded to think that the Presiding Officer should have accepted and acted upon the **Tr.P(C) No.344 of 2010** -: 6 :- affidavit rather than deciding to proceed in the matter, ex parte. 6. Learned counsel for petitioner in the court below has explained circumstances in which undertaking was made by the junior counsel on behalf of petitioner (respondent in O.P. No.941 of 2010). It is not as if such incidents cannot happen. I am also persuaded to think that for the said reason the Presiding Officer need not have taken the harsh step of directing counsel to relinquish Vakalath for petitioner herein, in O.P. No.741 of 2010 and for the said reason in spite of counsel having an engagement for petitioner herein (respondent in O.P. No.741 of 2010) declaring petitioner as ex parte. 7. No doubt the Supreme Court in **Sumitha Singh v.** **Kumar Sanjay and another** (AIR 2002 SC 396) and **Arti Rani v. Dharmendra Kumar Gupta** ([2008] 9 SCC 353) has stated that in considering request for transfer of matrimonial proceedings convenience of the wife has to be looked into. But that does not mean that in every case convenience of the wife alone has to be looked into. Petitioner has a grievance that he might not get justice from the court concerned. Learned counsel for petitioner contends that difference in distance from place of **Tr.P(C) No.344 of 2010** ## -: 7 :- residence of respondent No.1 to Kottarakkara and Kollam is around five kms more to Kollam. Having regard to the circumstances stated above I am persuaded to think that it is just and proper to transfer the cases to Family Court, Kollam. No doubt, some inconvenience will be caused to respondent No.1. But having regard to the facts and circumstances of the case I am inclined to allow the request notwithstanding the said inconvenience which can be reduced by directing that respondent No.1 need appear in the transferee court only as and when her personal appearance is necessary. Resultantly, this petition is allowed in the following lines: (i) O.P. Nos.741 of 2010 and 904 of 2010 and M.C. No.251 of 2010 pending in Family Court, Kottarakkara are withdrawn from that court and made over to Family Court, Kollam. (ii) The transferor court while transmitting records of the cases to the transferee court shall fix the date for appearance of parties in the transferee court with due intimation to the counsel on both ## **Tr.P(C) No.344 of 2010** -: 8 :- sides. (iii) Family Court, Kollam shall ensure that O.P. Nos.741 of 2010 and 904 of 2010 and M.C. No.251 of 2010 (transferred to it) are posted as far as possible on the same dates. (iv) It is made clear that except when physical presence of respondent No.1 in the transferee court is necessary she can appear through counsel. ## **THOMAS P. JOSEPH, JUDGE.** vsv