Sainudeen v. Shareefa K.M. and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 16TH DAY OF JULY 2018 / 25TH ASHADHA, 1940** **Tr.Appeal(C).No. 10 of 2017 IN TPC. 83/2017** **AGAINST THE JUDGMENT IN Tr.P(C) 83/2017 of HIGH COURT OF KERALA DATED 18-08-2017** **APPELLANT/ 1ST RESPONDENT/ PLAINTIFF :** **---------------------------------------** **SAINUDEEN, AGED 49 YEARS, S/O.KUNHI POCKER, THAYIL HOUSE, EDAYOOR AMSOM, POOVATHUMTHARA DESOM, TIRUR TALUK, MALAPPURAM – 676 552.** **BY ADV.SRI.P.B.AJOY** **RESPONDENTS/ PETITIONER & 2ND TO 4TH RESPONDENTS/ DEFENDANTS :** **--------------------------------------------------------------** **1. SHAREEFA K.M., AGED 37 YEARS, D/O.KALLU MURIKKAL KUNJU, EDAYOOR AMSOM, POOVATHUMTHARA DESOM, TIRUR TALUK, MALAPPURAM – 676 552.** ## **2. MOHAMMED ASIF,** **AGED 23 YEARS, S/O KALLU MURIKKAL KUNJU, EDAYOOR AMSOM, POOVATHUMTHARA DESOM, TIRUR TALUK, MALAPPURAM – 676 552.** ## **3. K.M.KUNJU,** **AGED 67 YEARS, S/O.KALLU MURIKKAL KUNJU, EDAYOOR AMSOM, POOVATHUMTHARA DESOM, TIRUR TALUK, MALAPPURAM – 676 552.** **4. ABDUL HAKIM, AGED 42 YEARS, S/O.KOLAM MOHAMMED @ BAVA, EDAYOOR AMSOM, POOVATHUMTHARA DESOM, TIRUR TALUK, MALAPPURAM – 676 552.** **R1 BY ADV. SMT.N.DEEPA** **R2 & R3 BY SRI.R.KRISHNAKUMAR (CHERTHALA) R4 BY ADV. SRI.VIJAI MATHEWS** **THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON 16-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **RKM** ## **C.R.** **K. HARILAL & ANNIE JOHN, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Transfer Appeal (C) No. 10 of 2017 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 16[th] day of July, 2018** ## **JUDGMENT** ## _**K. Harilal, J.**_ This Transfer Appeal (Civil) has been filed challenging the order passed by the Single Bench of this Court in Tr.P(C).No.83/2017 filed by the first respondent herein. As per the impugned order, O.S.No.119/2014 of the Munsiff Court, Tirur has been withdrawn and transferred to the Family Court, Tirur to be tried along with O.P.No.85/2016 filed by the respondents 1 to 3 herein. O.S.No.119/2014 of the Munsiff Court, Tirur was filed by the appellant herein, against the respondents, seeking a decree to recover the plaint schedule property on the strength of the appellant's title, from the possession of the respondents 1 to 3 herein and if they refuse to abide the decree and vacate the plaint schedule property, allowing him to recover the same through the process of the court. The respondents 1 and 4 herein are the wife and husband respectively and respondents 2 and 3 are their children. 2. According to the averments in the Original Suit No.119/2014, the 4[th] respondent pronounced Talaq and thereby Transfer Appeal (C) No. 10 of 2017 **==> picture [7 x 9] intentionally omitted <==** divorced the first respondent. The 4[th] respondent has executed a sale deed with respect to the plaint schedule property in favour of the appellant herein, and subsequently the respondents 1 to 3 herein trespassed into the said property and took possession of the property. Going by the impugned order, it can be seen that the first respondent had approached the Judicial First Class Magistrate Court-I, Tirur with CMP.No.9109/2013 under the Protection of Women from Domestic Violence Act and obtained Annexure-A4 order, restraining the 4[th] respondent from alienating the subject matter in O.S.No.119/2014. According to the first respondent, the said order was passed on 25.11.2013 and thereafter, the 4[th] respondent herein has executed the sale deed in favour of the appellant. In the above backdrop, she approached the Family Court, Tirur and filed O.P.No. 85/2016 seeking a decree declaring that the aforesaid sale deed executed by the 4[th] respondent herein in favour of the appellant herein is null and void and also for an order of injunction restraining the appellant herein from obstructing the possession and enjoyment of the said property by the first respondent herein. Thus, O.S.No.119/2014 filed by the appellant herein was pending Transfer Appeal (C) No. 10 of 2017 **==> picture [7 x 9] intentionally omitted <==** before the Munsiff Court, Tirur against the respondents 1 to 4 herein and O.P.No.85/2016 filed by the respondents 1 to 3 herein against the appellant and the 4[th] respondent was pending before the Family Court, Tirur. In the above context, the first respondent herein filed the aforesaid Transfer Original Petition seeking an order to withdraw O.S.No.119/2014 from the Munsiff Court, Tirur and transfer the said Original Suit to the Family Court, Tirur for enabling a joint trial with O.P.No.85/2016 pending before the Family Court, Tirur. 3. The appellant herein opposed the said application contending that the Family Court, Tirur has no jurisdiction to try the said suit under Section 7 of the Family Court Act. So this Court under Section 24 of the Code of Civil Procedure cannot transfer a case to a Court having no jurisdiction to try the suit. 4. After considering the aforesaid objection, the Single Bench of this Court passed the impugned order on a finding that the matters in issue involved in O.S.No.119/2014 and O.P.No.85/2016 are one and the same and any decision taken in O.S.No.119/2014 will have a direct impact on the proceedings pending before the Family Court in Transfer Appeal (C) No. 10 of 2017 **==> picture [7 x 9] intentionally omitted <==** O.P.No.85/2016. The legality and propriety of the aforesaid findings are challenged in this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the respondent. 6. The sum and substance of the argument advanced by the learned counsel for the appellant is that the Family Court, Tirur has no competency or jurisdiction to try O.S.No.119/2014. Therefore O.S.No.119/2014 could not have been transferred to the Family Court, Tirur, as it was impermissible under Section 24 of the C.P.C. Thus, the impugned order has been passed in violation of the statutory mandate under Section 24 of the C.P.C. In order to fortify the aforesaid contention, the learned counsel cited the decision of this Court in _**Sherly v. Sukumari Amma [2011 (3) KLT 200]**_ and the decision of this Court in FAO.No.14/2013. 7. Per contra, the learned counsel for the respondent advanced arguments to justify the reasonings whereby the Single Bench of this Court transferred O.S.No.119/2014 to the Family Court, Tirur to enable a joint trial with O.P.No.85/2016. According to the learned counsel for the respondent, the subject matter and the matter in issue 5 Transfer Appeal (C) No. 10 of 2017 involved in O.S.No.119/2014 and O.P.No.85/2016 are one and the same and the parties also are common. Since the matter in issue involved in both suit and O.P. and the parties are common, the joint trial is essential for the complete and effective adjudication of the issues. Further, the real matter in issue involved in O.S.No.119/2014 of the Munsiff Court, Tirur would fall under Clause (c) and (d) of Section 7 of the Family Court, and thereby the Family Court got competency to try O.S.No.119/2014. Therefore, the Single Bench of this Court is justified in transferring O.S.No.119/2014 to the Family Court, Tirur. To substantiate the said contention, the learned counsel cited the decision of this Court in _**Vasumathy N. and Another v. Valsan and Others [2011 (3) KHC 573 (DB)]**_ and the decision in _**Shiny v. George and Others [1997 KHC 289]**_ . 8. Let us examine the nature of the reliefs sought for in the Original Suit No.119/2014 and Original Petition No.85/2016. The relief sought for in O.S.No.119/2014 reads as follows :- a. Allowing the plaintiff to recover the plaint schedule property (house) on the strength of plaintiff's title from the possession of the defendant Nos.1 to 3 if they refuse 6 Transfer Appeal (C) No. 10 of 2017 to abide the decree and vacate plaint schedule property allowing the plaintiff to recover the same through process of this court. b. To pass such other relief as this Hon'ble Court deem fit and proper and as and when applied by the plaintiff. c. To pay cost of the suit by the defendants to the plaintiff. The relief sought for in O.P.No.85/2016 reads as follows :- a. Declare that Sale Deed No.2947/2013 which was created fraudulently by the defendants is null and void. b. Pass an injunction restraining the defendants from obstructing the plaintiff's peaceful possession over the plaint schedule property. c. Pass an injunction restraining the defendants from trespassing into the plaint schedule property and restraining the 2[nd] defendant from creating and registering any document with respect to plaint schedule property. 9. Going by the impugned judgment passed by the Single Bench of this Court, it could be seen that this Court has passed the impugned order on a finding that the question involved in O.S.No.119/2014 and O.P.No.85/2016 are one and the same and any decision to be taken in O.S.No.119/2014 will have a direct impact on the proceedings pending before the Family Court in O.P.No.85/2016. The Single Bench of this Court has relied on the decision laid down in [ _1997 KHC 289] (supra)_ . 7 Transfer Appeal (C) No. 10 of 2017 10. It is not disputed that the subject matter and parties are common in both original suit and original petition pending before the Munsiff Court, Tirur and Family Court, Tirur respectively. That apart, we have already found that the transfer of O.S.No.119/2004 pending before the Munsiff Court to the Family Court, was sought for in the context that with respect to the very same subject matter, O.P.No.85/2016 filed by the respondents 1 to 3 against the 4[th] respondent and the appellant is pending before the Family Court. 11. It is contended that O.S.No.119/2014 could not be instituted before the Family Court because it is a claim by a third party against the parties to the marriage and not a dispute between the parties to the marriage. Therefore, such a suit cannot be transferred to the Family Court, which lacks inherent original jurisdiction to consider the dispute involved in O.S.No.119/2014. But, the Single Bench of this Court has rejected the said argument. Therefore, the point to be considered in this appeal is whether the Single Bench of this Court is justified in rejecting the said contention and transferring O.S.No.119/2014 to the Family Court to enable a joint trial with O.P.No.85/2016. Transfer Appeal (C) No. 10 of 2017 8 12. Here, the original civil suit filed by a 3[rd] party against the parties to the marriage is sought to be transferred to the Family Court having originally no competency to try the said civil suit. At the first blush, we may think that it is not possible because Section 24 mandates that a suit can be transferred to a subordinate court having competency to try the suit only. But what is the methodology to be adopted by the superior court having power to transfer the suit to determine the competency of the transferee court? 13. We are of the opinion that the power to transfer a suit from one court to another envisaged under Section 24 of the C.P.C. is mainly intended to avoid conflicting decisions that may arise out of the parallel trials on the same matter in issue, rather than the convenience of the parties. Where the original civil suit filed by a 3[rd] party, before the civil court, against the parties to a marriage, is sought to be transferred to the Family Court, for enabling a joint trial with an Original Petition between the parties to the marriage and the 3[rd] party pending before the Family Court, it cannot be declined simply on a narrow construction of Section 7(c) of the Family Court Act that the original civil suit is one filed by a 3[rd] party against the parties to Transfer Appeal (C) No. 10 of 2017 **==> picture [7 x 9] intentionally omitted <==** a marriage and not a suit between the parties to a marriage. Similarly, the competency of the Family Court to try the original civil suit mandated under Section 24 of the CPC cannot be determined isolately on the basis of the pleadings in the original civil suit alone. It is to be determined on the basis of the matter in issue arises out of a combined reading of the pleadings in both cases pending before the civil court and the Family Court in juxtaposition. In short, the determination of the competency of the court under Section 24 of the CPC is not circumscribed by the averments or allegations in the civil suit alone. In such an enquiry, on the basis of the combined pleadings, of both cases if the court finds that the matter in issue is common and arises out of the dispute between the parties to a marriage with respect to the common subject matter of the parties or either of them, the original civil suit can be transferred to the Family Court notwithstanding the fact that the original civil suit is one filed by a 3[rd] party against the parties to a marriage and not a suit between the parties to a marriage. Moreover, in such circumstance, a joint trial is essential to avoid conflicting decisions that may be passed in the Original Suit and Original Petition pending before the civil Transfer Appeal (C) No. 10 of 2017 10 court and Family Court respectively. 14. It is true that O.S.No.119/2014 could not be instituted before the Family Court because it was a suit instituted by a 3[rd] party, a stranger against the parties to a marriage, the first and 4[th] respondents. But, the Transfer Petition came before this Court in a different context caused by the pendancy of Original Petition No.85/2016 before the Family Court, Tirur with respect to the same subject matter in O.S.No.119/2014, by one of the party to a marriage against the other. Significantly, the 3[rd] party who filed O.S.No.119/2014 is also a respondent in O.P.No.85/2016. According to Section 7(c) of the Family Court Act, the Family Court shall have jurisdiction to try a suit or proceedings between the parties to a marriage with respect to the property of the parties or either of them. On a combined analysis of the pleadings and relief sought for in O.S.No.119/2014 and O.P.No.85/2016, this Court finds that the real issue involved in both Original suit and Original Petition is between the parties to the marriage with respect to the common subject matter in the Original Suit and Original Petition. It is true that in O.S.No.119/2014, the husband and wife are arrayed as defendants. Though, they are arrayed as Transfer Appeal (C) No. 10 of 2017 **==> picture [13 x 9] intentionally omitted <==** defendants, we find that the real dispute arose in O.S.No.119/2014 is between the parties to the marriage with respect to the scheduled property in O.P.No.85/2016. Therefore, the real dispute involved in O.P. No.119/2014 would fall under Section 7(c) of the Family Court Act, though the Original Suit was filed by a third party, not a party to the marriage. The above view is supported by the decision of this Court in _**[2011 (3) KHC 573]** (supra)_ and the decision in _**[1997 KHC 289]** (supra)_ . The Single Bench of this Court is justified in relying on the decision in [ _**1997 KHC 289]** (supra)_ . 15. Further, on a reading of the pleadings in O.S.No.119/2014, we find that the allegation is that the plaintiffs in O.P.No.85/2016, who are the defendants 1 to 3 in O.S.No.119/2014 have trespassed into the plaint schedule property and took possession of the same, which is owned by the plaintiff on the claim that the plaint schedule property is the shared house of the first and 4[th] respondents herein, who are parties to the marriage. In O.S.No.119/2014, the plaintiff prayed for recovery of possession of the same property from the plaintiff in O.S.No.85/2016. Thus, the cause of action in O.S.No.119/2014 arose out of the marital dispute between the Transfer Appeal (C) No. 10 of 2017 **==> picture [13 x 9] intentionally omitted <==** first and 4[th] respondents in the said suit. It follows that O.S.No.119/2014 is also a suit for an order against the parties to the marriage arose out of the circumstance arising out of a marital relationship. Thus, O.S.No.119/2014 also would fall under Clause (d) of Section 7 of the Family Court Act. Thus, the Family Court has got competency and jurisdiction to try O.S.No.119/2014 also under Clause (c) and (d) of the Family Court Act. 16. The learned counsel for the appellant cited the decision in FAO.No.14/2013. We have meticulously gone through the said decision and we find that another Division Bench of this Court has not applied the said decision on a finding that the facts involved in that case is entirely different. But in the instant case, the fact involved is same as that of the facts involved in the case reported in **[** _**2011 (3) KHC 573]** (supra)_ . 17. In the above view, we find that the Family Court is competent to try O.S.No.119/2016 also. If that be so, it is permissible to transfer O.S.No.119/2016 to the Family Court under Section 24 of the Code of Civil Procedure also. The contention that O.S.No.119/2016 was transferred to the Family Transfer Appeal (C) No. 10 of 2017 13 Court having no competency to try O.S.No.119/2016 will stand rejected. 18. More importantly, we are also endorsing the views of the Single Bench of this Court that any decision taken in O.S.No.119/2014 will have a direct impact on the proceedings in O.P.No.85/2016 of the Family Court, Tirur and if a joint trial is not allowed, it may lead to conflicting decisions. So also, we further find that a joint trial of O.S.No.119/2014 with O.P.No.85/2016 is essential for adjudication of the common issue involved in both the Original Suit and Original Petition effectively and completely. This appeal will stand dismissed. Sd/- **K.HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge RKM