Transfer Appeal (C) Nos.21 and 22 of 2023

1 Transfer Appeal (C)Nos.21 and 22 of 2023 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ``` TR.APPEAL(C) NO. 21 OF 2023 ``` ``` ARISING FROM THE JUDGMENT DATED 16.11.2023 IN TR.P(C)NO.551 OF 2023 OF ``` ``` HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` RETHEESH KUMAR AGED 40 YEARS VADAKKEL HOUSE, MANATHUR, KURINJI P.O, KOTTAYAM DISTRICT, PIN - 686576 ``` ``` BY ADVS. MANU NAIR G. BHARATH MURALI ``` ``` RESPONDENT/RESPONDENT: ``` ``` SANDHYA K.S. AGED 39 YEARS KANADAN HOUSE, PANATHUR P.O, RAJAPURAM, VELLIRIKUNDU TALUK, KASARGODE DISTRICT - 671532, CURRENTLY RESIDING AT IRELAND (ADDRESS NOT KNOWN), PIN - 671532 ``` ``` R BY Adv.SRI S.JIJI - RESPONDENT ``` ``` THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2024, ALONG WITH TR.APPEAL(C).22/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Transfer Appeal (C)Nos.21 and 22 of 2023 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ``` TR.APPEAL(C) NO. 22 OF 2023 ``` ``` AGAINST THE JUDGMENT DATED 16.11.2023 IN TR.P(C) 552/2023 OF HIGH COURT ``` ``` OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` RETHEESH KUMAR K. AGED 40 YEARS S/O P. V. KESHAVAN NAIR, VADAKKEL HOUSE, MANATHUR, KURINJI P.O, KOTTAYAM DISTRICT, PIN - 686576 ``` ``` BY ADVS. MANU NAIR G. BHARATH MURALI ``` ## **`RESPONDENT/RESPONDENT:`** ``` SANDHYA K.S. AGED 39 YEARS KANADAN HOUSE, PANATHUR P.O, RAJAPURAM, VELLIRIKUNDU TALUK, KASARGODE DISTRICT - 671532, CURRENTLY RESIDING AT IRELAND (ADDRESS NOT KNOWN), PIN - 671532 ``` ``` R BY Adv.SRI S. JIJI - RESPONDENT ``` ``` THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2024, ALONG WITH TR.APPEAL(C).21/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Transfer Appeal (C)Nos.21 and 22 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** These Transfer Appeals filed under Section 5 of the Kerala High Court Act, 1958 arose out of the common order dated 16.11.2023 of the learned Single Judge in Transfer Petition(C)Nos.551 and 552 of 2023, which were filed seeking the transfer of two original petitions, i.e., O.P.Nos.1009 of 2022 and 989 of 2022 pending before the Family Court, Kasargod to the Family Court, Pala. After considering the rival contentions, the learned Single Judge dismissed the transfer petitions, for the reasons stated in paragraph 2 of the impugned order dated 16.11.2023, subject to the direction contained in paragraph 3. 2. Heard the learned counsel for the appellant and also the learned counsel for the respondent. 3. Section 24 of the Civil Procedure Code, 1908, deals with general power of transfer and withdrawal and Section 25 deals with the power of the Supreme Court to transfer suits, etc. As per sub-section (1) of Section 24, on the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage (a) 4 Transfer Appeal (C)Nos.21 and 22 of 2023 transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the court from which it was withdrawn. 4. As per sub-section (2) of Section 24 of the Code, where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. As per sub-section (3) of Section 24, for the purposes of this section, (a) courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) ‘proceeding’ includes a proceeding for the execution of a decree or order. As per sub-section (4) of Section 24, the court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. As per sub- 5 Transfer Appeal (C)Nos.21 and 22 of 2023 section (5) of Section 24, a suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it. 5. In the instant case, after considering the rival contentions, the learned Single Judge dismissed the transfer petitions, for the reasons stated in paragraph 2 of the impugned order dated 16.11.2023, subject to the direction contained in paragraph 3. Paragraphs 2 and 3 of the impugned order read thus; Paragraphs 2 and 3 of the impugned order read thus; “2. Having heard the learned counsel appearing on both sides, this Court is not inclined to allow the transfer petitions afore referred. The petitioner has no case that the Family Court, Kasargode, has no natural jurisdiction to entertain the above Original Petitions. If that be so, the fact that the Family Court, Pala, has also jurisdiction is of no consequence. The second point pertains to the convenience of the petitioner/husband. According to the learned counsel, it is highly inconvenient for the petitioner to travel all the way from Pala to Kasargode and to attend the proceedings. The inconvenience which is now faced by the husband will be faced by the wife, in case the transfer sought for is allowed. Law does not contemplate to take into account the convenience of the petitioner/husband while fixing the forum for adjudication of a matrimonial dispute, except in extraordinary circumstances. The contention that the children are not in a position to attend the school for two days when the matter is posted before the Family Court, 6 Transfer Appeal (C)Nos.21 and 22 of 2023 Kasargode, is not substantiated before this Court. That apart, this issue can be resolved by giving a direction to the Family Court, Kasargode, not to insist for the presence of the petitioner/husband except on occasions where his presence is indispensable. 3. For the afore-referred reasons, these Transfer Petitions are disallowed, but subject to the above direction to the Family Court to dispense with the presence of the petitioner as indicated above.” 6. 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 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. The Full Bench held further that, even though an order passed at the instance of one party to the suit by the single Judge under Section 24 of the Code is appealable under S.5(i) of the Kerala High Court Act, a word of caution is also necessary. When an appeal is filed under Section 5(i) of the Kerala High Court Act against the order passed under Section 24 of the 7 Transfer Appeal (C)Nos.21 and 22 of 2023 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. 7. Viewed in the light of the law laid down in the decision referred to supra, we find no reason to interfere with the reasoning of the learned Single Judge in paragraph 2 of the impugned order dated 16.11.2023, since the appellant has not made out a case warranting interference in exercise of the appellate jurisdiction of this Court under Section 5 of the Kerala High Court Act. The interest of the appellant-husband is well protected by the learned Single Judge by directing the Family Court, Kasargode, not to insist for the presence of the husband except on occasions where his presence is indispensable. 8. The learned counsel for the appellant-husband would submit that the husband intends to settle the entire issue in mediation. 9. The learned counsel for the respondent-wife would submit that in case there is such a move for mediation by the appellant-husband, the wife will certainly participate in the process of mediation, initially online. In case there is any concrete 8 Transfer Appeal (C)Nos.21 and 22 of 2023 proposal by the husband, she is prepared to appear in person before the mediation centre, to attend the process of mediation, to put a quietus to the matrimonial disputes between the parties. In the result, these Transfer Appeals fail, and the appeals are accordingly dismissed; after recording the aforesaid submissions made by the learned counsel for the respondent-wife, on behalf of the wife. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **G. GIRISH, JUDGE** MIN 9 Transfer Appeal (C)Nos.21 and 22 of 2023 ## **`APPENDIX OF TR.APPEAL(C) 21/2023`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE I TRUE COPY OF THE MEMORANDUM OF TRANSFER PETITION NO. 551 OF 2023 DATED 13.08.2023 ANNEXURE II THE CERTIFIED COPY OF THE JUDGMENT IN TR.P (C) NO. 551 OF 2023 DATED 16.11.2023 ``` 10 Transfer Appeal (C)Nos.21 and 22 of 2023 ## **`APPENDIX OF TR.APPEAL(C) 22/2023`** |**`PETITIONER ANNEXURES`**|| |---|---| |**`ANNEXURE I`**|**`TRUE COPY OF THE MEMORANDUM OF`**| ||**`TRANSFER PETITION NO.552 OF 2023`**| ||**`DATED 13.08.2023`**| |**`ANNEXURE II`**|**`THE CERTIFIED COPY OF THE JUDGMENT`**| ||**`IN TR.P(C)NO.552 OF 2023 DATED`**| ||**`16.11.2023`**|