Tr.P(C).Nos.759/2017 & 696/2017

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939** **Tr.P(C).No. 759 of 2017** **OP 56/2017 OF FAMILY COURT,THRISSUR TO FAMILY COURT, THRUVANANTHAPURAM** ## **PETITIONER(S)** **1 P.CHITHRA, W/O. K. RAJENDRAN, RESIDING AT CHAITHRAM, MYLADI, PULIYARAKONAM P.O., THIRUVANANTHAPURAM-695573.** **2 VYSAKH RAJENDRAN, S/O. SRI. K. RAJENDRAN, AGED 27 YEARS, RESIDING AT DO...DO..** - **3 VISMAYA C. R.,D/O. P. CHITHRA, AGED 13 YEARS, RESIDING AT DO...DO.. REPRESENTED BY THE FIRST PETITIONER,** - **P. CHITRA, MOTHER, RESIDING AT DO.. DO...** **BY ADVS.SRI.V.N.GOPALAKRISHNAN NAIR SRI.A.CHANDRA BABU** **ARUN GOPALAKRISHNAN SRI.G.VARUN** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY,** - **GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. TAHASILDHAR, KATTAKADA TALUK, THIRUVANANTHAPURAM.** **3. COMMANDANT,INDIAN RESERVE BATTALION, RAMAVARMAPURAM, THRISSUR.** ## **4. RAMANI,** **AGED ABOUT 40 YEARS, RESIDING AT KALATHIL PARAMBIL HOUSE, KADAVANODU P.O., PONNANI, MALAPPURAM DISTRICT, AT PRESENT RESIDING AT PREETHI NIVAS, T.C.49/669, NEAR VANITHA INDOOR STADIUM, AYYANTHOL, THRISSUR.** - **R1 TO BY SENIOR GOVERNMENT PLEADER M.I. JOHNSON R4 BY ADV.C.A. ANOOP** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-02-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **PBS** ## **Tr.P(C).No. 759 of 2017** ## **APPENDIX** ## **PETITIONER'S ANNEUXURES** **ANNEXURE I TRUE COPY OF THE BIRTH CERTIFICATE OF THE SECOND PETITIONER.** **ANNEXURE II TRUE COPY OF THE BIRTH CERTIFICATE OF THE THIRD PETITIONER. ANNEXURE III TRUE COPY OF RATION CARD OF RAJENDRAN AND HIS FAMILY. ANNEXURE IV TRUE COPY OF THE CONSUMPTION CARD ISSUED BY THE WATER AUTHORITY. ANNEXURE V TRUE COPY OF THE PLAINT IN O.S. 2218/2016 BEFORE THE MUNSIFF'S COURT OF THIRUVANANTHAPURAM DATED OCT/NOV 2016. ANNEXURE VI TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO. 2218/2016 BEFORE THE MUNSIFF'S COURT OF THIRUVANANTHAPURAM DATED MARCH 2017. ANNEXURE VII TRUE COPY OF THE PLAINT IN O.P.NO. 56/2017 BEFORE THE FAMILY COURT, THRISSUR DATED JANUVARY 2017.** **RESPONDENT'S ANNEXURE NIL** **/TRUE COPY/** **PA TO JUDGE** **PBS 24/2/2018** ## ALEXANDER THOMAS, J. ----------------------------- Tr.P(C).Nos.759/2017 & 696/2017 --------------------------------Dated this the 14th day of February, 2018. ## O R D E R The prayers in Tr.P(C).No.759/2017 are as follows: - “A. O.P.No.56/2017 on the file of Family court of Thrissur may be transferred to Thiruvananthapuram Family Court, where O.P.No.1506/2017 is pending for enabling the Family Court of Thiruvananthapuram to try and dispose of both the cases in a joint trial keeping O.P.1506/2017 as the main case. - B. Appropriate directions my be issued to the Transferee court to dispose of the cases within a short time which may be fixed by this Honourable Court.” 2. The prayer in Tr.P.(C).No.696/2017 is as follows: “To pass an order transferring O.P.1506/2017 pending before Family Court Thiruvananthapuram to the Family Court Thrissur.” 3. Heard Sri.A.Nemom Chandra Babu, learned counsel for the petitioners in Tr.P.(C).No.759/2017 [who is also appearing for respondents 1 to 3 in Tr.P.(C).No.696/2017], Sri.C.A.Anoop, learned counsel for the petitioner in Tr.P.(C).No.696/2017 as well as R-4 in Tr.P(C).No.759/2017 and Sri.M.I.Johnson, learned Senior Government Pleader, appearing for the official respondents in Tr.P.(C).No.759/2017. ::2:: Tr.P(C).Nos.759/2017 & 696/2017 4. These Transfer proceedings emanate out of two Original Petitions pending before the two Family Courts and both of the claimants claim to be the legally wedded wife of deceased Sri.Rajendran, who died on 16.8.2015. 5. The brief facts in Tr.P.(C).No.759/2017 could be initially dealt with. It is stated by the learned counsel for petitioner in Tr.P. (C).No.759/2017 that the 1st petitioner in the said Transfer Petition claims that she is the lawfully wedded wife of Sri.Rajendran and the marriage was solemnized on 14.6.1989 that her parents as well as Rajendran, were employees of the Police Department. The 2nd petitioner, who is now aged 27 years, was the first child (son) born to the spouses and the 3rd petitioner is the 2nd child (daughter) born to them in the said marriage. It is the case of the petitioners that Rajendran, who was a serving official of the Police Department in the rank of Sub Inspector of Police had died on 16.8.2015 and that his funeral was conducted in his native place at Kollamvilakath in Thiruvananthapuram on the next day. That the 1st petitioner had made application before the departmental authorities concerned for grant of service benefits due on account of the death of Sri.Rajendran and the papers were being processed by the departmental authorities ::3:: Tr.P(C).Nos.759/2017 & 696/2017 concerned. That since the departmental authorities have instructed the 1st petitioner to produce legal heirship certificate pertaining to the deceased Rajendran, she had approached the Tahsildar, Kattakada, for issuance of legal heirship certificate. Then she was informed by the Thahsildar, Kattakada, that the 4th respondent herein (Ramani) has also put up a claim that she is the lawfully wedded wife of Rajendran and the Tahsildar was not in a position to issue the legal heirship certificate without getting necessary orders from the competent civil court concerned. That thereupon the petitioners had filed Anx.A-5 O.S.No.2218/2016 before the Munsiff's Court, Thiruvananthapuram, wherein respondents 1 to 3 herein have been arrayed as official defendants 1 to 3 and 4th respondent herein - Ramani, has been arrayed as 4th defendant in the said suit. The prayers in Anx.A-5 O.S.No.2218/2016 are for declaration that the 3 plaintiffs therein (petitioners herein) are the legal heirs of the said deceased Rajendran and for a direction to defendants 1 to 3 for issuing legal heirship certificate and for a direction that all the service benefits due on account of the death of Rajendran to the legal heirs are to be disbursed to the 3 plaintiffs therein and further for orders to get damages from the 4th respondent on account of the delay caused to the plaintiffs in ::4:: Tr.P(C).Nos.759/2017 & 696/2017 securing the benefits due to them on account of the false claim made by the 4th defendant, etc., and that none of the benefits due the plaintiffs on account of the death of Rajendran should be delayed so long as the 4th defendant is not in a position to secure a legal heirship certificate from the competent civil court that she is the lawfully wedded wife of Rajendran, etc., and for consequential reliefs. The date of Anx.A-5 suit is not clearly shown either in Anx.A-5 suit or in the proceedings in these 2 cases. However, it is not in dispute that the said Original Suit was numbered as O.S.No.2218/2016 and so obviously it must have been filed in the year 2016. Document No.13 produced along with the suit would make a reference to certificate dated 17.10.2016 and therefore it can be presumed that the suit may have filed some time after 2 nd or 3rd week of October, 2016 and before the end of December, 2016. Anx.A6 is the written statement filed by the 1st respondent in Anx.A-5 suit. It is the case of the petitioners that the native place and permanent residence of the deceased Rajendran is Kattakkada in Thiruvananthapuram District and the legal heirship certificate to be obtained only from the Thahsildar, Kattakada, Thiruvananthapuram District and that even going by the case of the 4th respondent, funeral of Sri.Rajendran was conducted in Thiruvananthapuram District and ::5:: Tr.P(C).Nos.759/2017 & 696/2017 further it is stated that most of the witnesses to prove the marriage as well as subsequent details of the martial life of the parties in Tr.P(C).No.759/2017 (P.Chithra) and Rajendran are to be stated by witnesses from Thiruvananthapuram. More crucially, it is stated by the petitioner in Tr.P.(C).No.759/2017 that most of the officials of the Police Department, who are dealing the service benefits of Rajendran are also based at Thiruvananthapuram District and more importantly 2 out of the 4 defendants in the said Original Suit are official respondents, who are all based at Thiruvananthapuram. It is also common ground that later the petitioners were advised that in view of the nature of the disputes, the matter in the suit should be determined only by the competent Family Court and thereupon the papers in Anx.A-5 Original Suit were returned to the petitioners for re-presentation before the competent Family Court. Pursuant thereto the petitioners have represented Anx.A-5 Original Suit before the Family Court, Thiruvananthapuram, wherein it was numbered as O.P.No.1506/2017. It is further stated that all the parties in Anx.A-5 O.P.No.1506/2017 had appeared before the Family Court, Thiruvananthapuram, for which purpose an Advocate Commissioner was also appointed. It is at that stage, that on 31.10.2017, the 4th respondent (Remani) had produced a ::6:: Tr.P(C).Nos.759/2017 & 696/2017 copy of the interim stay order granted by this Court in Tr.P. (C).No.696/2017 in respect of the further proceedings in Anx.A-5 O.P pending before the Family Court, Thiruvananthapuram. It is in the light of these aspects that the petitioners would seek the aforementioned prayers in Tr.P.(C).No.759/2017. 5. Whereas the case of the petitioner in Tr.P(C).No.696/2017 is to the effect that she is the lawfully wedded wife of Rajendran and the marriage between them was conducted on 8.8.2008 at Guruvayur. That at that time Rajedran was working as a Sub Inspector of Police at Reserve Battalion, Ramavarmapuram, Thrissur. A minor girl child was born to them. The petitioner is a Government servant in the planning department at Thrissur. That Rajendran had died on 6.8.2015 and it was the petitioner who has fully taken care of deceased Rajendran while he was suffering from cancer. It is her further case that after Rajendran's death, his body was taken to Thiruvananthapuram, to the tharavad house for funeral and cremation and close relatives of the petitioner in Tr.P(C).No.759/2017 have forcefully taken the body to their house and cremation was done at their instance at Thiruvananthapuram, etc. It is further averred that the 1 st respondent in Tr.P(C).No.696/2017 (Chithra) is an official in the Police ::7:: Tr.P(C).Nos.759/2017 & 696/2017 Department. It is stated that the petitioner is a widow and finds it extremely difficult to travel all the way from her residence to attend to the litigative proceedings at Thiruvananthapuram in respect of O.P.No.1506/2017. That the petitioner has filed Anx.A-1 O.P.No.56/2017 before the Family Court, Thrissur, seeking declaration that she is the lawfully wedded wife of late Rajendran. Anx.A-1 O.P.No.56/2017 was filed before the Family Court, Thrissur. The exact date of filing of Anx.A-1 O.P.No.56/2017 is not seen discernible from the case papers made available in this matter. It is the specific case of the petitioners in Tr.P.(C).No.759/2017 as made out in para 11 thereof that the above said O.P.No.56/2017 was filed by Smt.Ramani, before the Family Court, Thrissur on 12.5.2017. 6. Both parties would fully agree on the one point to the extent that O.P.No.1506/2017 filed by Smt.Chithra, as well as O.P.No.56/2017 filed by Ramani should be tried before the same court as otherwise there is likelihood of conflicting decisions on some of the main issues, which are common in both the cases. Learned Senior Government Pleader appearing for the official respondents would also point out that this is a fit case where this Court should exercise discretion to ensure that both the Petitions are tried before the same ::8:: Tr.P(C).Nos.759/2017 & 696/2017 court as otherwise it may cause conflicting decisions on some of the common issues emanating in these 2 Petitions. But the hard and difficult task before this Court is that, which is the suit to be transferred. There is also unanimity of judicial opinion that the cardinal parameter to be reckoned for finding such transfer pleas is the balance of convenience on such occasions. The question of balance of convenience has to be determined as per the question of fact in each case. The balance of convenience should be convenient to all parties as well as witnesses. In determining balance of convenience, the court has to take into consideration, - (a) the convenience or inconvenience of the plaintiff and the right of the palintiff to choose his own forum; - (b) the convenience or inconvenience of the defendant; - (c) the convenience or inconvenience of the witnesses required for a proper trial of the suit; - (d) the convenience or inconvenience of a particular place of trial having reard to the nature of the evidence on the main points involved in the suit and also having regard to the doctrine of “forum conveniens” ; and - (e) the natue of the issues in the suit, etc. The Apex Court held in the judgment in Kulwinder Kaur v. Kandi Friends Education Trust, reported in (2008) 3 SCC 659 = 2008 KHC 4074, that although the discretionary power of transfer of cases cannot be imprisoned within a strait jacket of any cast iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to ::9:: Tr.P(C).Nos.759/2017 & 696/2017 transfer a case must be exercised with due care, caution and circumspection and a reading Secs.24 and 25 of the Code of Civil Procedure 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 plaintiff or 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., and that the above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding and that 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. It will be ::10:: Tr.P(C).Nos.759/2017 & 696/2017 ## profitable to refer to para 14 of the above case decision in Kulwinder ## Kaur's case (supra), which reads as follows: (see KHC report). “14. Although the discretionary power of transfer of cases cannot be imprisoned within a strait jacket of any cast iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading S.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 plaintiff or 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. 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”. 7. It is common ground that petitioners in Tr.P.(C).No.759/2017 had initially set in motion the litigative proceedings by filing O.S.No.2218/2016 before the Munsiff's Court, Thiruvananthapuram, during November/December, 2016 and the said suit was re-presented and re-numbered before the Family Court as O.P.No.1506/2017. It is also not in dispute that all the parties concerned had appeared before the Family Court, Thiruvananthapuram ::11:: Tr.P(C).Nos.759/2017 & 696/2017 and the matter was listed for evidence and a Commissioner was duly appointed for recording the evidence of witnesses. It is thereafter that the petitioner in Tr.P.(C).No.696/2017 had moved this Court and had secured interim stay of the proceedings in O.P.No.1506/2017. It also appears that Smt.Ramani, has filed O.P.No.56/2017 only later. It is stated by the petitioners in Tr.P.(C).No.759/2017 that O.P.No.56/2017 was filed only on 12.5.2017. There is a vague averment in Tr.P.(C).No.696/2017 that the said Original Petition was actually filed some time in the early part of 2017. The indisputable fact of the matter is that it is the petitioners in Tr.P.(C).No.759/2017, who have initially set in motion the litigative proceedings. The matter in O.P.No.1506/2017 filed by Chithra has also reached the stage of adducing evidence and an Advocate Commissioner was also appointed for that purpose. 8. Sri.M.I.Johnson, learned counsel appearing for the official respondents 1 to 3 in Tr.P(C).No.759/2017 would submit that this Court should also consider the relative convenience and inconvenience that may be caused to the official respondents inasmuch as 2 out of the 4 defendants in O.P(C).No.1506/2017 are based at Thiruvananthapuram. Further that most of the official witnesses, who are to adduce evidence ::12:: Tr.P(C).Nos.759/2017 & 696/2017 in O.P.No.1506/2017 are also based at Thiruvananthapuram. Considering the above said aspects, more importantly, the fact that 2 official defendants in O.P.(C).No.1506/2017 are based at Thiruvananthapuram, and as most of the official witnesses, who have to adduce evidence in O.P.No.1506/2017 are based at Thiruvananthapuram, and as the first litigation set in motion was O.P.No.1506/2017, this Court is inclined to order the transfer of O.P.No.56/2017 filed by Ramani to the Family Court, Thiruvananthapuram. The decision to be taken herein is indeed hard and difficult for this Court so that it would result in causing inconvenience to one among the rival parties. But both the parties are unanimous in their submissions that both the cases should be tried before the same court. Therefore, the point that is to be considered by this Court in this judicial determination would certainly create hard and difficult to one among the rival parties and such consequences are inevitable going by the nature of the prayers in these petitions. Accordingly, it is ordered in the interest of justice that the prayer in Tr.P(C).No.759/2017 is allowed and accordingly, it is ordered that O.P.No.56/2017 now pending before the Family Court, Thrissur will stand transferred to Family Court, Thiruvananthapuram, where O.P.No.1506/2017 is pending. ::13:: Tr.P(C).Nos.759/2017 & 696/2017 9. The petitioners in Tr.P.(C).No.759/2017 will produce a certified copy of this order before the Family Court, Thrissur, upon which the said court shall transmit the entire case papers in relation to O.P.No.56/2017 to the Family Court, Thiruvananthapuram. Upon receipt of the case papers, the Family Court, Thiruvananthapuram, will issue notice to all the parties in both cases. Consequently, it is ordered that the prayer in Tr.P.(C).No.696/2017 will stand declined. 10. Sri.C.A.Anoop, learned counsel for the petitioner in Tr.P. (C).No.696/2017 would submit that this Court may give necessary directions to ensure that exemption from personal appearance may be granted to his party or otherwise his party will be put to great hardship and difficulties in travelling all the way from Thrissur to Thiruvananthapuram. Accordingly, it is ordered that the parties concerned will be at liberty to file applications in the matter of personal exemption in which case the Family Court, Thiruvananthapuram, will consider those applications, favourably, provided the parties are represented through Advocates concerned. Both parties would also submit that this Court may stipulate a time limit for early disposal of both these cases as otherwise the parties will be put to prejudice. Accordingly, it is ordered that the Family Court, ::14:: Tr.P(C).Nos.759/2017 & 696/2017 Thiruvananthapuram,will ensure that the above said transferred O.P.No.56/2017 as well as O.P.No.1506/2017 are disposed of without much delay, preferably within a period of 8-10 months from the date of production of a certified copy of this order. With these observations and directions, the aforecaptioned Transfer Petitions (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.