V.M. Sindhu @ Shreemathy Thankachi v. K. Shaji

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944 ``` ``` TR.P(C) NO. 240 OF 2022 OP 11/2019 OF FAMILY COURT, NEDUMANGAD ``` ## **`PETITIONER:`** ``` V.M. SINDHU @ SHREEMATHY THANKACHI AGED 51 YEARSD/O VIJAYALAKSHMI THANKACHI, ASWATHY, EATHAVILA MEKKAMANDAPAM P.O., THAKKALA, KANYAKUMARI DISTRICT, TAMIL NADU- 629166, NOW RESIDING AT T.C. 28/1223, PANDARATHOPPU LANE, SREEKANTESWARAM WARD, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM, PIN - 695023 ``` ``` BY ADVS. M.GOPIKRISHNAN NAMBIAR RAJA KANNAN R.CHETHAN KRISHNA K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM ``` ## **`RESPONDENT:`** ``` K. SHAJI AGED 42 YEARS, S/O S.KRISHNAN NAIR THRIKKARTHIKA, KUNNUMPARA, OORUTTAMBALAM, THIRUVANANTHAPURAM P.O., PIN - 695507 ``` ``` BY ADV D.AJITHKUMAR ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`TR.P(C) NO. 240 OF 2022 2`** ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure, to transfer O.P. No.11/2019 from the Family Court, Nedumangad to the Family Court,Thiruvananthapuram. 2. The petitioner’s case, in a nut shell, relevant for the determination of the transfer petition, is that, she is the wife of the respondent. The respondent had filed O.P.No.481/2009 before the Family Court, Thiruvananthapuram, inter alia, to declare his title over the immovable properties scheduled as ‘A’ and ‘B’ in the original petition. ‘A’ schedule property is situated in Vanchiyoor village and ‘B’ schedule property is situated in Kalliyoor village. Both these villages are situated within Thiruvananthapuram Taluk. The original petition was ``` TR.P(C) NO. 240 OF 2022 3 ``` transferred on the administrative side by this Court to the Family Court, Nedumangad and re-numbered as O.P. No.11/2019. Thereafter, the respondent had filed an application seeking leave to amend the original petition. The petitioner was set ex-parte. The petitioner along with the written statement filed a counter claim in the original petition. In the counter claim she sought for a declaration of ½ share over the petition ‘A’ schedule property. Later, the respondent by way of amendment sought for an alternative prayer for partition and recovery of possession. On realising that the Family Court, Nedumangad was not having the jurisdiction to entertain the original petition, the petitioner has filed an application to return the original petition and counter claim as provided under Section 3(2) of the Family Courts Act. It is the court within whose jurisdiction the property is situated that has the jurisdiction to entertain an original petition. A court ## **`TR.P(C) NO. 240 OF 2022 4`** lacking jurisdiction cannot try an original petition. Hence, the transfer petition. 3. The respondent has filed a memo through his counsel denying the allegations in the transfer petition. It is contended that the original petition was filed in the year 2009 as O.P.No.481/2009. The original petition was dismissed. Challenging the same, the respondent had filed Mat.Appeal No.786/2013 before this Court. This Court, by its judgment dated 06.09.2018, allowed the appeal and remanded the matter back to the Family Court, Thiruvananthapuram, for fresh consideration. After the formation of the Family Court, Nedumangad, the original petition was transferred to the new court and re-numbered as O.P.No.11/2019. Then, the petitioner filed her written statement with a counter claim along with I.A. No.264/2019, seeking leave to accept the written statement and counter claim on record, because they were ``` TR.P(C) NO. 240 OF 2022 5 ``` filed beyond the time period fixed by this Court in Mat.Appeal No.786/2013. But, the petitioner was set exparte and the original petition was allowed. Then, the petitioner filed Mat. Appeal No.195/2020 before this Court challenging the judgment in O.P.No.11/2019. This Court, by judgment dated 04.02.2021, allowed the appeal and set aside the ex-parte judgment and again remanded the matter back to the Family Court, Nedumangad. The petitioner has produced 30 documents. On seeing the documents, the respondent filed an application seeking leave to amend the original petition. The same was allowed. The said order was again challenged by the petitioner before this Court in O.P.(F.C) No.465/2021. The same was disposed of by this Court on 21.03.2022, holding that the amendment would take effect only prospectively. In all the above rounds before this Court, the petitioner has not raised the question of lack of ``` TR.P(C) NO. 240 OF 2022 6 ``` jurisdiction of the Family Court, Nedumangad. It is at this belated stage, when the case is listed for trial, that the petitioner has come up with the present transfer petition, which is nothing but a ruse to protract the determination of O.P.No.11/2019. 4. The petitioner has filed reply affidavit opposing the memo filed by the learned counsel appearing for the respondent. He has prayed that the transfer petition may be allowed. 5. Heard; Sri. R. Chethan Krishna, the learned counsel appearing for the petitioner and Sri. D. Ajith Kumar, the learned counsel appearing for the respondent. 6. Sri. Chethan Krishna argued that petition ‘A’ and ‘B’ schedule properties are situated within the jurisdiction of the Family Court, Thiruvananthapuram. Therefore, the Family Court, Nedumangad has no jurisdiction to entertain the original petition. Section 24(5 ) of the Code of Civil ## **`TR.P(C) NO. 240 OF 2022 7`** Procedure enables this Court to transfer a suit or proceeding from a court which has no jurisdiction. He relied on the decision of the Honourable Supreme Court in **Harshad Chiman Lal Modi v. DLF Universal and Ors.** [2005 (7) SCC 791] to drive home his contentions. He prayed that the transfer petition be allowed. 7. Sri.D. Ajith Kumar opposed the transfer petition contending that the original petition was filed in the year 2009. Thereafter, on the formation of the Family Court, Nedumangad, the same was transferred to the Family Court, Nedumangad. There were three rounds of litigation between the parties before this Court as Mat.Appeal No.786/2013, Mat Appeal No.195/2020 and O.P.(F.C) No.465/2021. The petitioner has maintained stoic silence regarding the alleged lack of jurisdiction of the Family Court, Nedumangad. It is at the fag end of the proceeding, that the petitioner has come up with the transfer petition, ``` TR.P(C) NO. 240 OF 2022 8 ``` which is filed with the sole intention to procrastinate the final determination of the O.P.No.11/2019. The transfer petition may be dismissed. 8. The point is whether O.P.No.11/2019 is to be transferred invoking Section 24 of the Code of Civil Procedure. 9. Admittedly, O.P.No.481/2009 was filed by the respondent against the petitioner in the year 2009 before the Family Court, Thiruvananthapuram. The petitioner was set ex-parte. She challenged the ex-parte decree before this Court in Mat.Appeal No.786/2013. The appeal was allowed and the matter was remanded back to the Family Court, Thiruvananthapuram for fresh consideration. 10. On the formation of the Family Court, Nedumangad, the case was transferred to the said court and was re-numbered. The petitioner appeared before the said court and filed her written statement with a counter ``` TR.P(C) NO. 240 OF 2022 9 ``` claim. She did not question the jurisdiction of the said court to entertain the original petition. Instead, she submitted herself to the jurisdiction of the said court by filing a counter claim. She was set ex-parte, as she had filed the written statement beyond the time period stipulated by this Court in Mat. Appeal No.786/2013. 11. Challenging the ex-parte decree, the petitioner again filed Mat.Appeal No.195/2020 before this Court. This Court allowed the appeal and directed the Family Court, Nedumangad to dispose of O.P.No.11/2019 within six months from 04.02.2021. 12. Consequent to the remand, the petitioner produced 30 documents. Then the respondent filed an application for amendment, which was allowed. 13. Again, the petitioner challenged the said order before this Court by filing O.P.(F.C) No.465/2021. This Court partly allowed the original petition and held that the ## **`TR.P(C) NO. 240 OF 2022 10`** amendment would take effect only prospectively. 14. It is pertinent to note, right from 2019 till the disposal of O.P.(F.C) No.465/2021, the petitioner did not have a case that the Family Court, Nedumangad lacked jurisdiction, either territorial, pecuniary or inherent, to entertain O.P.No.11/2019. It is after three years that the petitioner got enlightenment and filed the application (which is not produced with the transfer petition) that the Family Court, Nedumangad lacks jurisdiction to entertain the original petition. 15. Section 21 (1) of the Code of Civil Procedure reads as follows:- No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was **taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement,** and unless there has been a consequent failure of justice. ## 16. The above provision categorically stipulates that ## **`TR.P(C) NO. 240 OF 2022 11`** the question of jurisdiction of the court has to be raised at the first instance and at the earliest possible opportunity. 17. It is reiterated, at the cost of repetition, that the original petition was filed in the year 2009 before the Family Court, Thiruvananthapuram. On the formation of the Family Court, Nedumangad, the case was transferred in the year 2019. It is pending on the file of the said court for the last three years. Not only did the petitioner not feel that the court lacked jurisdiction all these years, but also submitted herself to the jurisdiction of the said court by filing a counter claim with documents. 18. In Mat.Appeal No.195/2020, this Court has directed the Family Court, Nedumangad to dispose of the original petition within six months from 04.02.2021. We are today on 19.09.2022. The time period to dispose of the case has already lapsed. 19. At this belated stage, the petitioner has filed the ``` TR.P(C) NO. 240 OF 2022 12 ``` application questioning the jurisdiction of the Family Court, Nedumangad. Before the consideration of the application, the petitioner has filed the transfer petition. The course adopted by the petitioner does not inspire this Court to invoke its discretionary power under Section 24 of the Code of Civil Procedure, to transfer O.P.No.11/2019. The transfer petition is nothing but a dilatory tactic adopted by the petitioner. I do not find any bonafides or merits in the transfer petition. Hence, the transfer petition is dismissed. Sd/- **C.S.DIAS, JUDGE** rmm/19/09/2022 ## **`TR.P(C) NO. 240 OF 2022 13`** ## **`APPENDIX OF TR.P(C) 240/2022`** ``` PETITIONER ANNEXURES ``` - `Annexure1 TRUE COPY OF O.P. NO. 481/2009 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM FILED BY THE RESPONDENT HEREIN, SUBSEQUENTLY TRANSFERRED AND RENUMBERED AS O.P. NO. 11/2019 [UNDATED] ON THE FILE OF THE FAMILY COURT, NEDUMANGAD` - `Annexure2 TRUE COPY OF THE AMENDMENT APPLICATION [I.A. NO. 14/2021] FILED BY THE RESPONDENT HEREIN TO AMEND THE ORIGINAL PETITION NO. 11/2009 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD` - `Annexure3 TRUE COPY OF WRITTEN STATEMENT AND COUNTER CLAIM IN O.P. NO. 11/2019 FILED BY THE PETITIONER HEREIN DATED 08.02.2019 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD` - `Annexure4 TRUE COPY OF LIST OF VILLAGES OVER WHICH FAMILY COURT, THIRUVANANTHAPURAM EXERCISES JURISDICTION` - `RESPONDENT’S ANNEXURES` ``` ANNEXURE A A TRUE COPY OF JUDGMENT IN MAT. APPEAL NO.786/2013 OF THIS HON’BLE COURT DATED 06.09.2018 ANNEXURE BTRUE PHOTOCOPY OF JUDGMENT IN MAT.APPEAL NO.195/2020 OF THIS HON’BLE COURT DATED 04.02.2021. ``` ``` ANNEXURE CJUDGMENT IN O.P.(F.C) NO.465/2021 OF THIS HON’BLE COURT DATED 21.03.2022 ```