Jose George v. James, Sheeba James & Jasmine James (Transfer Appeal Civil No.15 of 2020 in Tr.P(C) 341/2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** **THE HONOURABLE MR. JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942** **Tr.Appeal(C).No.15 OF 2020 IN Tr.P(C). 341/2020** **AGAINST THE JUDGMENT DATED 04/11/2020 IN Tr.P(C) 341/2020 OF HIGH COURT OF KERALA.** ## **APPELLANT/IST RESPONDENT/PETITIONER :** **JOSE GEORGE, AGED 40 YEARS, S/O.GEORGE, 41/926A, GRACE VILLA, PIPELINE ROAD, EDAPPALLY P.O., PADIVATTOM, KOCHI-682024.** **BY ADVS.SRI.P.B.AJOY, SMT.PRAISHEEL PRAKASAM & SMT.SWATHANDRA THIRUNILATH** ## **RESPONDENTS/PETITIONER & 2NS RESPONDENTS/RESPONDENTS :** **1 JAMES, AGED 63 YEARS, S/O ANTHONY, VADAKOODEN HOUSE, MILALOOR.P.O,M.G.KAVU VIA, THRISSUR DISTRICT - 680 581. 2 SHEEBA JAMES, AGED 56 YEARS, W/O.JAMES, VADAKOODEN HOUSE, MILALOOR P.O., M.G.KAVU VIA, THRISSUR DISTRICT-680 581. 3 JASMIN JAMES, AGED 32 YEARS, D/O.JAMES, VADAKOODEN HOUSE, MILALOOR P.O., M.G.KAVU VIA, THRISSUR DISTRICT-680581 NOW RESIDING AT KUMBHAMPARAMBIL HOUSE, C/O.RENJITH RAMESAN, PUNATHILPADAM ROAD, GALAXY VISTHA, PALARIVATTOM ERNAKULAM-682 025.** ## **BY ADV.SRI.RAJESH SIVARAMANKUTTY.** **THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON 21.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Transfer Appeal (Civil) No.15 of 2021 2 A.HARIPRASAD & T.V.ANILKUMAR, J J. -------------------------------------- Transfer Appeal (Civil) No.15 of 2020 -------------------------------------- Dated this the 21st day of January, 2021 ## J U D G M E N T ## A.HARIPRASAD, J Heard the learned counsel for the appellant and respondents. 2. Aggrieved by an order passed by the learned Single Judge in Tr.P(C) No.341 of 2020 dated 04-11-2020, the petitioner in O.P No.13 of 2020 pending before the Family Court, Thrissur has come up in appeal. 2. Appellant is the husband of third respondent. Unfortunately, their marriage was broken down and they are living separate. It is pointed out by the learned counsel for the appellant that three original petitions have been filed before the Family Court, Ernakulam for divorce, custody of Transfer Appeal (Civil) No.15 of 2021 3 children and for return of money. In the original petition for return of money, the appellant has impleaded his father-in-law and mother-in-law, who are the contesting respondents in this appeal. 3. It is an admitted case that the original petition for divorce and custody of children are still pending before the Family Court, Ernakulam. Considering the health issues raised by the respondents in O.P No.13 of 2020, it was transferred from Family court, Ernakulam to Family Court, Thrissur by the impugned order. 4. One of the main contentions raised by the learned counsel for the appellant is that the transfer order does not show any legal reason to approve the plea raised by the respondents. According to the learned counsel for the appellant, going by Section 7 of the Family Courts Act, 1984 r/w Section 20(a) of C.P.C, the Family Court, Ernakulam has jurisdiction to entertain the matters relating to divorce and monetary claims. It is also Transfer Appeal (Civil) No.15 of 2021 4 submitted by the learned counsel for the appellant that the power under Section 24 of C.P.C was not properly considered by the learned Single Judge. He placed reliance on Kulwinder Kaur Alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust and Others ((2008) 3 SCC 659) to urge the following proposition : “ 23 . Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by courts. They are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the Transfer Appeal (Civil) No.15 of 2021 5 suit is pending; important questions of law involved or a considerable section of public interested in the litigation; “interest of justice” demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the court feels that the plaintiff or the defendant is not likely to have a “fair trial” in the court from which he seeks to transfer a case, it is not only the power, but the duty of the court to make such order.” 5. Another decision relied on Thiruvenkitan v. Anantha Kumar (1991 KHC 259) rendered by a learned Single Judge. In paragraph 5, the following observations are made :- - “ Plaintiff's contention is that he being the master of the Transfer Appeal (Civil) No.15 of 2021 6 litigation cannot be driven from one court to another at the caprice and fancy of the defendants. In Salavandi Nadar v. Venugopala AIR 1960 Kerala 91 this Court held that if the plaintiff has the choice of the forum as arbiter litis and has chosen his court very strong reasons must be shown by the defendant to deprive the plaintiff of this choice. Though plaintiff has the choice of the forum as arbiter litis, convenience of the parties is also a decisive factor which requires consideration by the Court. Convenience of both parties have to be weighed and the ultimate decision of the Court should be based on the balance of convenience. If a pedantic approach that plaintiff's choice of the court is the sole decisive factor is adopted in total disregard of the contentions of the defendants, it would end in denial of justice. Convenience of parties to the litigation is indeed a factor worthy of consideration by the Court in an application under S.24 C.P.C. But plaintiff should not be deprived of his right of choice of forum on trivial grounds. That can be done only on strong and compelling reasons. In Ruchi Ram v. Sarab Narain AIR 1928 Lahore 159 the Court held : “ The principle is well established that it is the right of the plaintiff to choose the forum for his action, and that in deciding whether the plaintiff should be deprived of that right, a very strong case must be made out by the defendant, and Transfer Appeal (Civil) No.15 of 2021 7 further that in deciding whether a suit should or should not be transferred it is not merely the convenience of the defendant that has to be considered; but the plaintiff's convenience also should be borne in mind.” Mere inconvenience pointed out by the defendant would not be sufficient to deprive the plaintiff of his choice of forum. The well accepted principle of law is that a transfer of a suit is effected by the Court for proper and convincing grounds. No court would grant transfer for the mere asking by a party.” 6. According to the learned counsel for the appellant none of these aspects was considered by the learned Single Judge while granting transfer in favour of the respondents. 7. It is also urged that the request for transfer made by the respondents was allowed by the court below relying on Annexure B discharge report issued by Yogakshetra, an Ayurvedic Centre at Palakkad. It is seen from Annexure B that the first respondent was undergoing treatment in the Ayurveda Treatment Centre. It is the contention raised by Transfer Appeal (Civil) No.15 of 2021 8 the appellant that he was able to travel from Thrissur to Palakkad for treatment purposes. There cannot be any difficulty for him to travel from Thrissur to Ernakulam occasionally for appearing before the Family court. 8. Learned counsel for the respondents, on the other hand, contended that the respondents are age old persons and they are finding it difficult to undertake a journey frequently. Having regard to the facts and circumstances, we are of the view that the Family Court, Ernakulam need not insist on their presence on all occasions. If only their appearance is necessary for progress of the case they should be compelled to appear before the court. On evaluation of the entire materials placed before us, we find it difficult to support the transfer order passed by the learned Single Judge. In the result, the appeal is allowed. The order passed by the learned Single Judge is hereby set Transfer Appeal (Civil) No.15 of 2021 9 aside. The Family Court, Ernakulam shall try and dispose of the matters, as expeditiously as possible. All pending interlocutory applications will stand closed. A. HARIPRASAD, JUDGE. T.V.ANILKUMAR JUDGE amk