Sruthy S. v. Reshmi Chandran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943 TR.APPEAL(C) NO. 5 OF 2022** **AGAINST THE ORDER DATED 02.02.2021 IN Tr.P(C) 489 OF 2020** **OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **SRUTHY S., AGED 33 YEARS S/O.SASIDHARAN PILLAI, KEECHERI THEKKETHIL HOUSE, ULIYAKOVIL, KOLLAM – 691 091** **BY ADVS.SRI.T.I.UNNIRAJA SRI.S.G.SREEKANTH SRI.S.BADUSHA SRI.SREEJITH S. SRI.JOEL ANTONY GEORGE SRI.FAHEEM AHSAN.S** ## **RESPONDENT/RESPONDENT:** **RESHMI CHANDRAN, AGED 25 YEARS, D/O.C.RAMACHANDRAN, “CHANDRALAYAM”, PUNNAKKULAM, K.S.PURAM P.O., KARUNAGAPPLY, KULASEKHARAPURAM, KOLLAM - 690544** **R BY ADV.SRI.R.SUNILKUMAR** **THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- TR.APPEAL(C) NO. 5 OF 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the respondent in O.P.No.1329 of 2020 on the file of the Family Court, Thiruvananthapuram, an original petition filed by the respondent herein (wife of the appellant), seeking a decree of divorce under Section 27 of the Special Marriage Act, 1954 and Sections 13(1)(ia)(ib) and (iii) of the Hindu Marriage Act, 1955 and Section 7 of the Family Courts Act, 1984. The respondent-wife filed the said original petition before the Family Court, Thiruvananthapuram, on the ground that she is presently residing at Sreekaryam in Thiruvananthapuram. The petitioner filed Tr.P.(C).No.489 of 2020, invoking the provisions under Section 24 of the Code of Civil Procedure, 1908, seeking transfer of O.P.No.1329 of 2020, pending before the Family Court, Thiruvananthapuram, to the Family Court, Chavara. In the said Transfer Petition it is alleged that the wife is residing at Kollam, which is evident from the fact that she had received notice in the Transfer Petition in her address at Kollam. 2. The address of the respondent shown in -3- TR.APPEAL(C) NO. 5 OF 2022 O.P.No.1329 of 2020 is “Reshmi Chandran, aged 25, D/o.C.Ramachandran, Chandralaym, Punnakkulam, K.S.Puram P.O., Karunagappally, Now residing at T.C.9/907, Kattil Puthern Veedu, Kallampally, Ulloor Village, Sreekaryam, Thiruvananthapuram and that in Tr.P.(C)No.489 of 2020 is “Reshmi Chandran, aged 25 years, D/o.C.Ramachandran, Chandralayam, Punnakkulam, K.S.Puram P.O., Karunagappally, Kulashekharapuram, Kollam – 690544”. By the impugned order dated 02.02.2021, the learned Single Judge dismissed the Transfer Petition. Paragraph 2 of that order reads thus; “2. O.P.No.1329 of 2020 is filed by the respondent-wife seeking a decree of divorce. Though the permanent residence of the respondent-wife is at Kollam, she is presently residing at Thiruvananthapuram. The petitioner-husband is employed in Merchant Navy. Therefore, conduct of the proceedings before the Family Court at Thiruvananthapuram or at Chavara is of little difference. But for challenging the claim of residence of the respondent-wife at Thiruvananthapuram, hardly any ground for transfer is claimed or made out by the petitioner. The contention of the petitioner is that the respondent is residing at Kollam and not at Thiruvananthapuram as claimed by -4- TR.APPEAL(C) NO. 5 OF 2022 her. If the respondent is not residing at Kollam, she would not gain anything by instituting the present proceeding at Thiruvananthapuram; in fact she also would be put at hardship by undertaking travel all the way up to Thiruvananthapuram to conduct the case. No grounds for transfer are made out.” 3. Feeling aggrieved, the appellant is before this Court in this Transfer Appeal invoking the provisions under Section 5 of the Kerala High Court Act, 1958. 4. Heard the learned counsel for the appellant. 5. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned order of the learned Single Judge, whereby Tr.P. (C)No.489 of 2020 filed by the appellant, invoking the provisions under Section 24 of the Code of Civil Procedure, seeking transfer of O.P.No.1329 of 2020 from the Family Court, Thiruvananthapuram, to the Family Court, Chavara, stands dismissed. 6. The learned counsel for the appellant would contend that as pointed out in the memorandum of appeal, the respondent has managed to obtain a rental agreement as if she is now residing in the address shown in the original -5- TR.APPEAL(C) NO. 5 OF 2022 petition in order to show that on account of such residence, the Family Court at Thiruvananthapuram is having jurisdiction to try O.P.No.1329 of 2020. According to the learned counsel for the appellant, the learned Single Judge dismissed the Transfer Petition filed under Section 24 of the Code of Civil Procedure, without appreciating the contentions raised by the appellant. 7. Section 24 of the Code of Civil Procedure, 1908, deals with general power of transfer and withdrawal and Section 25 deals with the power of the Supreme Court to transfer suits, etc. 8. In **Indian Overseas Bank v. Chemical Construction Co. [(1979) 4 SCC 358]** , the Apex Court held that the principle governing the general power of transfer and withdrawal under Section 24 of the Code of Civil Procedure is that the court should not lightly change the forum and compel the plaintiff go to another court, with consequent increase in inconvenience and expense of prosecuting the suit. A mere balance of convenience in favour of proceedings in another court, albeit a material consideration, may not always be a -6- TR.APPEAL(C) NO. 5 OF 2022 sure criterion justifying transfer. As compared with Section 24, the power of transfer of civil proceedings to another court, conferred on the Apex Court under Section 25 is far wider and so the amplitude of expression 'expedient in the interest of justice' which furnishes a general guideline for the exercise of the power. Whether it is expedient or desirable in the interest of justice to transfer a proceedings to another court, is a question which depends on the circumstances of the particular case. 9. In **Kulwinder Kaur v. Kandi Friends Education Trust [(2008) 3 SCC 659]** the Apex Court held that, Section 24 of the Code of Civil Procedure empowers a High Court or a District Court to transfer _inter alia_ any suit, appeal or other proceeding pending before it or in any court subordinate to it to any other court for trial and disposal. The said provision confers comprehensive power on the court to transfer suits, appeals or other proceedings ‘at any stage’ either on an application by any party or suo motu. Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously -7- TR.APPEAL(C) NO. 5 OF 2022 applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. On a reading of 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 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. 10. 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 -8- TR.APPEAL(C) NO. 5 OF 2022 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, 1958. The Full Bench held further that, when an appeal is filed under Section 5(i) of the Kerala High Court Act, 1958 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. 11. In the instant case, the present address of the respondent-wife shown in O.P.No.1329 is within the jurisdiction of the Family Court, Thiruvananthapuram. The case of the appellant is that the respondent has managed to obtain the rental agreement in the address shown in the original petition, in order to show that on account of such residence, the Family Court at Thiruvananthapuram is having the jurisdiction to try the aforesaid Original Petition. After considering the rival contentions, the learned Single Judge -9- TR.APPEAL(C) NO. 5 OF 2022 dismissed the Transfer Petition by the order dated 02.02.2021 on a finding that no grounds for transfer are made out. The learned Single Judge noticed that though the permanent residence of the respondent-wife is at Kollam, she is presently residing at Thiruvananthapuram. The appellant-husband is employed in Merchant Navy and therefore, the conduct of proceedings before the Family Court at Thiruvananthapuram or at the Family Court, Chavara is of little difference. 12. Viewed in the light of the law laid down in the decisions referred to supra, no interference is warranted on the impugned order dated 02.02.2021 of the learned Single Judge in Tr.P.(C)No.489 of 2020, since it cannot be said that the said order is manifestly illegal or erroneous or it causes grave or substantial injustice to the appellant-husband. In the result, this appeal fails and the same is, accordingly, dismissed. No order as to costs. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** AV/15/3