V. Rajan v. Vaishnavi Raj

# **`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 4[TH] DAY OF JULY 2022 / 13TH ASHADHA, 1944 TR.APPEAL(C) NO. 10 OF 2022 AGAINST THE ORDER DATED 30.03.2022 IN Tr.P(C) 750 OF 2021 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` V.RAJAN, AGED 56 YEARS S/O LATE KANNANKIZHI BALAKRISHNAN NAIR, 'VYSAKHAM', M A BANK ROAD, CHERANELLORE P O, PIN-682034, ERNAKULAM DISTRICT, KOCHI ``` ``` BY ADV K.A.SALIL NARAYANAN ``` ## **`RESPONDENT/RESPONDENT:`** ``` VAISHNAVI RAJ, AGED 19 YEARS D/O V RAJAN (VADAKKEKATTIL RAJAN), RESIDING AS PER PETITION-KIZHUTHANI DESOM, KARALAM VILLAGE, MUKUNDAPURAM TALUK, AND ACTUALLY RESIDING IN THE ADDRESS, GARDEN RETREAT, CHAKKUNGAL ROAD, PALARIVATTOM, KOCHI-682025. ``` ``` BY ADVS.SRI.FIROZ K.M. SMT.M.SHAJNA(K/1017/2006) ``` ``` THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON 04.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- Tr.Appeal No.10 of 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the respondent in O.P.No.1320 of 2021 on the file of the Family Court, Irinjalakkuda in Thrissur District, which is one filed by the respondent herein, who is the daughter of the appellant, claiming past maintenance, educational expenses, marriage expenses and also cost of gold for her marriage. The appellant filed Tr.P.(C)No.750 of 2021 before this Court, invoking the provisions under Section 24 of the Code of Civil Procedure, 1908, seeking an order to transfer O.P.No.1320 of 2021 from the Family Court, Irinjalakkuda to Family Court, Ernakulam. The said Transfer Petition stands dismissed by the order dated 30.03.2022 of the learned Single Judge. Challenging the aforesaid order, the appellant has filed this appeal, invoking the provisions under Section 5(i) of the Kerala High Court Act, 1959. 2. On 23.05.2022, when this appeal came up for admission, the respondent entered appearance through counsel and sought adjournment to get instructions. -3- Tr.Appeal No.10 of 2022 3. Heard the learned counsel for the appellant and also the learned counsel for the respondent. 4. The learned counsel for the appellant would contend that the respondent is presently residing at Ernakulam, in connection with her studies. Since the respondent is studying for B.Com in Jain University Campus, Kakkanad in Ernakulam District, the Family Court, Irinjalakkuda is having no jurisdiction to entertain O.P.No.1320 of 2021. The respondent is residing at Ernakulam, along with her mother. Hence transfer of the said original petition from the Family Court, Irinjalakkuda to the Family Court, Ernakulam will not cause any prejudice to the respondent. Therefore, the learned Single Judge went wrong in dismissing Tr.P.(C)No.750 of 2021. 5. On the other hand, the learned counsel for the respondent would submit that the respondent is even now residing at Parayil House, Kizhuthani Desom, Karalam Village, Mukundapuram Taluk, Thrissur District-680 701, i.e., in the address shown in the counter affidavit filed in this appeal. In O.P.No.1320 of 2021 filed before the Family Court, -4- Tr.Appeal No.10 of 2022 Irinjalakkuda, she has mentioned that she is residing at Irinjalakkkuda, though the address of her father at Ernakulam was also shown in the cause title of the said original petition. The learned counsel for the respondent would also point out the following averments in paragraph 3 of O.P.No.1320 of 2021 [Annexure R1(a)], in order to substantiate the said contention. " _അമ്മക്കാണെ ങ്കി_ ൽ _സ്വന്തമായിവരുമാനമുള്ളആളല്ല_ . _വീടില്ല_ . _ഹ_ ർ , _തന്മൂലം ജിക്കാരിയുടെയും സഹോ ദരന്റെയും വിദ്യാഭ്യാസം മാത്രം നോ ക്കി അമ്മപലഫ്ളാറ്റുകളിലും മാറിമാറി വാടകക താമസിച്ചു_ . _അമ്മയുടെ കയ്യിലുണ്ടായപണംമുഴുവ_ ൻ _തീ_ ർ _ന്നു_ . _അതുകൊ ണ്ടാണ് ഹ_ ർ _ജിക്കാരിയും അമ്മയും കൂടി അമ്മയുടെ_ . _വീടായകിഴുത്താണിയിലേ ക്കുപോ ന്നിട്ടുള്ളതാണ് ഇവിടെ വലിയ ബുദ്ധിമുട്ടിലാണ് താമസിക്കുന്നത്_ . _ഹ_ ർ _ജിക്കാരിക എറണാകു_ . _ളത് ന്നെവീട്വാടകയ്ക്ക്എടുത്തുതാമസിക്കേണ്ടതുണ അല്ലെ ങ്കി_ ൽ education _ആകെ കുഴപ്പത്തിലാകും_ .” 6. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, we notice that the respondent herein, who is the daughter of the appellant, who is aged 19 years, is studying for B.Com at Jain University, Kakkkanad. The Transfer Petition filed by the appellant was dismissed at the admission stage. The respondent has filed a counter affidavit -5- Tr.Appeal No.10 of 2022 in this appeal, producing therewith Annexure R1(a) copy of O.P.No.1320 of 2021, wherein it is averred that she is residing at Irinjalakkua, along with her mother. 7. The learned counsel for the appellant would place reliance on the decision of this Court in **Vidhya Mundekkat** **v. Ahhilesh Jayaram [2021 (6) KHC 506]** , wherein this Court held that it is not an inevitable rule that, whenever the wife makes a request pointing out her inconvenience, transfer of the case to a court of her choice is automatic. The principle laid down in the said decision has no application to the case on hand, since, as already noticed hereinbefore, the specific case of the respondent herein is that she is residing at Irinjalakkuda along with her mother. 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 -6- Tr.Appeal No.10 of 2022 balance of convenience in favour of proceedings in another court, albeit a material consideration, may not always be a 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 @ Kulwinder Gurcharan Singh 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 -7- Tr.Appeal No.10 of 2022 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 applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. 10. In **Jitendra Singh v. Bhanu Kumari [(2009) 1 SCC 130]** the Apex Court observed that, the purpose of Section 24 of the Code is merely to confer on the court a discretionary power. A court acting under Section 24 of the Code may or may not in its judicial discretion transfer a particular case. Section 24 does not prescribe any ground for ordering the transfer of a case. In certain cases it may be ordered _suo motu_ and it may be done for administrative reasons. But when an application for transfer is made by a party, the court is required to issue notice to the other side and hear the party before directing transfer. To put it differently, the court must act judicially in ordering a transfer on the application of a party. 11. In **Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation [(2009) 8 SCC** -8- Tr.Appeal No.10 of 2022 **646]** the Apex court reiterated that the power under Section 24 of the Code of Civil Procedure cannot be exercised to be _ipsi dixit_ in the matter in which it has been done. The power to transfer a case must be exercised with due care, caution and circumstances. 12. 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 -9- Tr.Appeal No.10 of 2022 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. 13. Viewed in the light of the law laid down in the decisions referred to supra, we find no reason to interfere with the impugned order of the learned Single Judge, 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. In the result the appeal fails and the same is accordingly dismissed. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** AV/7/7 -10- Tr.Appeal No.10 of 2022 ## **`APPENDIX OF TR.APPEAL(C) 10/2022`** ``` RESPONDENT ANNEXURES ``` ``` ANNEXURE R1(a) ``` ``` True copy of the OP No.1320 of 2021 on the file of Honlble Family Court, Irinjalakuda ```