High Court of KeralaSingle Judge2023-01-03Transfer petitions disposed as above: Tr.P(C) 4...

Tr.P(C) Nos. 406 & 471 of 2022

Case / Petition Number:TR.P(C) Nos. 406 & 471 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2023-01-03
Court Decision / Holding: The common order disposes transfer petitions as follows: (i) Tr.P.(C) No.471/2022 is dismissed. (ii) Tr.P.(C) No.406/2022 is allowed by withdrawing and transferring O.P.(Money) No.814/2022 from Ettumanoor to Thiruvalla. (iii) The parties may move the Family Court, Thiruvalla, for consolidation and joint trial of all cases between them. (iv) The Registry shall transmit a copy of the order to the Family Court, Ettumanoor with instructions to transfer the records to Thiruvalla. (v) The Family Court, Thiruvalla shall post the cases along with O.P.(Div) No.269/2022 for consolidation.
Final Disposition: Transfer petitions disposed as above: Tr.P(C) 471/2022 dismissed; Tr.P(C) 406/2022 allowed; O.P.(Money) 814/2022 to be transferred from Ettumanoor to Thiruvalla for consolidation; parties may move Thiruvalla for consolidation; records to be transmitted; Thiruvalla to post cases including O.P.(Div) 269/2022 for consolidation.

Parties to the Case

Appellants / Petitioners

T.M.Kuruvilla
Mariyamma Kuruvilla

Respondents

Mariyamma Kuruvilla
T M Kuruvilla

Legal Representation & Advocates

Counsels for Petitioners

• K.N. Radhakrishnan
• Ganga A. Sankar
• Santhan V. Nair
• Christeena P George

Counsels for Respondents

• Santan V. Nair
• Christeena P George
• K.N. Radhakrishnan
• Ganga A. Sankar

Case Synopsis & Summary

The common order arises from two transfer petitions filed between spouses involved in marital disputes: Tr.P(C) No.406/2022 by the husband, T.M. Kuruvilla, to transfer O.P.(Money) No.814/2022 from Ettumanoor to Thiruvalla, and Tr.P(C) No.471/2022 by the wife, Mariyamma Kuruvilla, to transfer O.P.(Div) No.269/2022 from Thiruvalla to Ettumanoor. The petitions were heard together since they involve the same parties and related disputes. The Court examined whether Section 24 of the Code of Civil Procedure should be exercised to consolidate the cases in a single Family Court to avoid multiplicity of proceedings and save judicial time. It relied on Mini Antony v. Savio Aruja to note that inconvenience to a power-of-attorney holder is not a mandatory ground for transfer, and on Vidya Mundekkat v. Akilesh Jayaram to reject an invariable rule that a wife’s transfer request must always be entertained. On balance, the Court allowed the husband’s petition (406/2022) to transfer O.P.(Money) 814/2022 to Thiruvalla for consolidation, dismissed the wife’s petition (471/2022), and directed consolidation and joint trial, with records to be transmitted to Thiruvalla and posted for consolidation of all cases between the parties.

Provisions of Law Cited

Code of Civil Procedure, Section 24 (CPC)

Legal Doctrines & Maxims

Discretionary powers under Section 24 CPC are to be exercised to consolidate cases to save judicial time and avoid multiplicity of proceedings
There is no invariable rule that transfer must be granted merely because a party requests it; discretion is to be judiciously exercised
Inconvenience to a power of attorney holder is not a mandatory ground for transfer under Section 24 CPC (as held in Mini Antony v. Savio Aruja)
No automatic rule obliges the court to transfer upon a wife’s transfer request, per Vidya Mundekkat

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-husband (Tr.P(C) No.406/2022) argued for transfer of O.P.(Money) No.814/2022 from Ettumanoor to Thiruvalla so that both proceedings could be consolidated and tried jointly, thereby saving judicial time and avoiding multiplicity of proceedings. Since the respondent-wife is employed abroad and files two petitions in two courts, consolidation would prevent conflicting decisions and harassment. The discretionary power under Section 24 CPC should be invoked in his favour. The wife’s petition (Tr.P(C) No.471/2022) was argued to be unnecessary for transfer, but the court would consolidate if justified.

Contentions of Respondents

The respondent-wife contended that transfer was sought to enable her power-of-attorney holder to contest easily, stressing the inconvenience to the POA and travel limitations. She sought transfer of the Division petition (269/2022) from Thiruvalla to Ettumanoor for convenience. The respondent argued that there is hardship for the POA holder in contesting before two forums and thus sought a convenient single forum. The respondents relied on arguments about POA inconvenience; however the court ultimately found no mandatory requirement to transfer solely on POA convenience.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Mini Antony v. Savio Aruja	2022(3) KHC 42	Positive	The court cites this decision to state that it is not obliged to consider the inconvenience of a power-of-attorney holder when exercising its discretionary powers under Section 24 CPC.
Vidya Mundekkat v. Akilesh Jayaram	2021 (6) KHC 506	Positive	The court notes there is no invariable rule that a wife’s transfer request obliges the court to exercise its discretionary power, supporting its discretionary approach in consolidation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 3[RD] DAY OF JANUARY 2023 / 13TH POUSHA, 1944 ``` ## **`TR.P(C) NO. 406 OF 2022`** ## **`IN OP (MONEY)814/2022 OF FAMILY COURT, KOTTAYAM`** ## **`PETITIONER/RESPONDENT:`** ``` T.M.KURUVILLA, AGED 60 YEARS, S/O M.C.MATHEW, RESIDING AT THUNDIPARAMBIL HOUSE, THALAYAR MURI, KUTTOOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT-, PIN – 689106 ``` ``` BY ADVS.K.N.RADHAKRISHNAN(THIRUVALLA) GANGA A.SANKAR ``` ## **`RESPONDENT/PETITIONER:`** ``` MARIYAMMA KURUVILLA, AGED 57 YEARS, D/O KURIAN ABRAHAM, RESIDING AT KIZHAKKETHUNDIYIL HOUSE, VELLUTHURUTHY, KUZHIMATTOM P.O., KOTTAYAM, PIN 686533, FROM CHENNANPARA KARA, VITHURA P.O., NEDUMANADU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN – 695551 ``` ## **`BY ADVS. SANTHAN V.NAIR CHRISTEENA P GEORGE`** ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2023, ALONG WITH Tr.P(C).471/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Tr.P (C) Nos. 406 & 471 of 2022 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 3[RD] DAY OF JANUARY 2023 / 13TH POUSHA, 1944 ``` ``` TR.P(C) NO. 471 OF 2022 ``` ``` IN OP(DIV)NO. 269/2022 OF FAMILY COURT, THIRUVALLA ``` ## **`PETITIONER/PETITIONER:`** ``` MARIYAMMA KURUVILLA, AGED 57 YEARS, D/O KURIAN ABRAHAM, RESIDING AT KIZHAKKETHUNDIYIL (H), VELLUTHURUTHY, KUZHIMATTOM P.O, KOTTAYAM-686533, REPRESENTED BY HER AUTHORIZED POWER OF ATTORNEY ABRAHAM K KURIAN, AGED 60 YEARS, S/O KURIAN ABRAHAM, RESIDING AT KIZHAKKETHUNDIYIL (H), KUZHIMATTOM P.O., PANACHIKKAD, KOTTAYAM-686533. ``` ``` BY ADVS.SANTHAN V.NAIR CHRISTEENA P GEORGE ``` ## **`RESPONDENT/RESPONDENT:`** ``` T M KURUVILLA AGED 60 YEARS S/O M.C MATHEW, RESIDING AT THUNDIPARAMBIL (H), THALAYARMURI, KUTTOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT-689106. ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ``` ``` ON 03.01.2023, ALONG WITH Tr.P(C).406/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Tr.P (C) Nos. 406 & 471 of 2022 ## **COMMON ORDER** As the transfer petitions arise out of the marital disputes between the same parties, they have been disposed of by this common order. 2. Tr.P.(C) No.406/2022 is filed by the husband – T.M Kuruvilla – against his wife, Mariyamma Kuruvilla - to transfer O.P.(Money) No.814/2022 from the Family Court, Ettumanoor to the Family Court, Thiruvalla. 3. Tr.P.(C) No.471/2022 is filed by the wife, against the husband, to transfer O.P. (Div) No.269/2022 from the Family Court, Thiruvalla to the Family Court, Ettumanoor. The parties and the pleadings are referred to as per the litigate status in Tr.P.(C)No.406/2022, which is treated as the leading case. 4. The case of the petitioner-husband in 4 Tr.P (C) Nos. 406 & 471 of 2022 Tr.P. (C)No.406/2022 is that the respondent has filed O.P. (Div) No.269/2022, against him, before the Family Court, Thiruvalla, for a decree of divorce and O.P.(Money) No.814/2022, against him, before the Family Court, Ettumanoor, for a decree for recovery of money. The respondent is represented by her power of attorney holder – her father. The respondent is a permanent resident of Thiruvananthapuram and she is presently employed in United Kingdom. The respondent herself has chosen to file two petitions before two Family Courts just to harass the petitioner, who is now 60 years of age. Hence, Tr.P(C) No.406/2022 is filed. 5. The case of the respondent in Tr.P(C)No.471/2022 is that, she is employed in the United Kingdom and has appointed her father as a power of attorney holder. Her father is old and infirm. It would be difficult for her power of attorney holder to travel and contest the proceedings before two courts. Hence, O.P. (Div) 5 Tr.P (C) Nos. 406 & 471 of 2022 No.269/2022 may be transferred from the Family Court, Thiruvalla to the Family Court, Ettumanoor. Hence, Tr.P(C)No.471/2022 is filed. 6. Heard; Sri.K.N. Radhakrishnan, the learned counsel appearing for the petitioner - husband and Sri. Santhan V Nair, the learned counsel appearing for the respondent- wife. 7. The question is, which of the transfer petitions is to be allowed. 8. Undisputedly, O.P. (Money ) No.814/2022 and O.P. (Div.) No.269/2022 have been filed by the respondent - wife, before the Family Court, Ettumanoor and the Family Court, Thiruvalla, respectively, for independent reliefs. 9. The respondent is admittedly employed abroad and is a permanent resident of Thiruvananthapuram. 10. The respondent has sought for transfer of the case on the ground that it would cause inconvenience to 6 Tr.P (C) Nos. 406 & 471 of 2022 her power of attorney holder to contest the proceedings before the two courts. 11. This Court in **Mini Antony v. Savio Aruja** [2022(3) KHC 42] has categorically held that this Court while exercising its discretionary powers under Section 24 of the Code of Civil Procedure, is not obliged to consider the inconvenience of a power of attorney holder. 12. In **Vidya Mundekkat v. Akilesh Jayaram** [2021 (6) KHC 506] a Division Bench of this Court has held that there is no invariable rule that, whenever a wife makes a request for transfer under Section 24 of the Code of Civil Procedure, this Court is obliged to exercise its discretionary powers. 13. Taking into account the admitted facts that the petitioner-husband is 60 years of age that he is a permanent resident of Thiruvalla, that the respondent is presently employed in United Kingdom and that she herself has filed two cases before the two courts, I am of 7 Tr.P (C) Nos. 406 & 471 of 2022 the firm view that the discretionary powers of this Court under Section 24 of the Code of Civil Procedure is to be exercised in favour of the petitioner by allowing Tr.P(C) No.406/2022 and ordering the transfer of O.P. (Money) No.814/2022 from the Family Court, Ettumanoor to the Family Court, Thiruvalla, so that the cases can be consolidated and jointly tried, which would save precious judicial time, avoid multiplicity of proceedings and conflict of decisions. In the result, the transfer petitions are disposed of as follows:- (i) Tr.P.(C)No.471/2022 is dismissed. (ii) Tr.P.(C)No.406/2022 is allowed by ordering the withdrawal and transfer of O.P. (Money) No.814/2022 from the Family Court, Ettumanoor to the Family Court, Thiruvalla. (iii) The parties would be at liberty to move the 8 Tr.P (C) Nos. 406 & 471 of 2022 Family Court, Thiruvalla and seek for the consolidation and joint trial of all the cases between them (iv) The Registry shall forward a copy of this common order to the Family Court, Ettumanoor with instructions to forthwith transmit the records in O.P. (Money) No.814/2022 to the Family Court, Thiruvalla. (v) ) The Family Court, Thiruvalla shall, immediately on the receipt of the records in O.P. (Money) No.814/2022, post the cases along with O.P. (Div.) No.269/2022. Sd/- ## **C.S.DIAS, JUDGE** rmm/03/01/2023 9 Tr.P (C) Nos. 406 & 471 of 2022 ## **`APPENDIX OF TR.P(C) 406/2022`** ``` PETITIONER ANNEXURES Annexure 1THE COPY OF PETITION IN O.P(MONEY) NO. 814 OF 2022 OF THE FAMILY COURT, EATTUMANOOR, KOTTAYAM DATED 31.05.2022 Annexure 2THE COPY OF O.P (DIV) 269/2022 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THIRUVALLA DATED 30.05.2022 ``` 10 Tr.P (C) Nos. 406 & 471 of 2022 ## **`APPENDIX OF TR.P(C) 471/2022`** ``` PETITIONER ANNEXURES Annexure ATRUE COPY OF THE PETITION DATED 13-05-2022 FILED BEFORE THE FAMILY COURT THIRUVALLA NUMBERED AS OP (DIV) NO.269/2022. ``` ``` Annexure BTRUE COPY OF OP NO. 814/2022 DATED 02-06-2022 PENDING BEFORE THE FAMILY COURT, ETTUMANOOR. Annexure CTRUE COPY OF THE INTERIM ORDER DATED 4-06- 2022 IN I.A NO. 2/2022 IN OP NO.814/2022 . ```