Yadhu Mohan v. Rajesh Kumar P.R. and Goutham Mohan

_**Tr.P(C).183/2020**_ 1 **'C.R'** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 13[TH] DAY OF JULY 2021 / 22ND ASHADHA, 1943** **TR.P(C) NO. 183 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OS 57/2020 OF MUNSIFF** **COURT,KAYAMKULAM, ALAPPUZHA** ## **PETITIONER/S:** YADHU MOHAN, AGED 19 YEARS S/O.V.V.MOHANAN, AMRITHA, KULAKKATU P.O., MUTHEDATH MADAMBU AMSOM, OTTAPPALAM, PALAKKAD - 679 503. BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE B.ANUSREE MANU VYASAN PETER ## **RESPONDENT/S:** 1 RAJESH KUMAR P.R., AGED 40 YEARS S/O.RAMACHANDRAN NAIR, MANNAYAMKOT HOUSE, KATTACHIRA, BHARANIKKAVU, ALAPPUZHA - 690 503. 2 GOUTHAM MOHAN, AGED 21, S/O.V.V.MOHANAN, AMRITHA, KULAKKATU P.O., MUTHEDATH MADAMBU AMSOM, OTTAPPALAM, PALAKKAD -679 503. BY ADVS. R1 BY SR1 BY MT.R.LEELA R2 BY SRI.RAJESH SIVARAMANKUTTY THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**Tr.P(C).183/2020**_ 2 ## **V.G.ARUN, J.** **----------------------------------------------Tr.P.(C).No. 183 of 2020 ----------------------------------------------Dated this the 13[th] day of July, 2021** ## **O R D E R** A lady by name M.S.Chitra was murdered, allegedly by her husband. The petitioner and 2[nd] respondent are the children of deceased Chitra. The 1[st] respondent is the person with whom Chitra was having a live-in relationship. Within six weeks of Chitra's death, the 1[st] respondent filed O.S.No.57 of 2020 before the Munsiff's Court, Kayamkulam (Annexure A) seeking to restrain the petitioner and 2[nd] respondent from trespassing into the plaint scheduled property and obstructing his peaceful residence or committing waste therein. Not to be left behind, within two months, the 2[nd] respondent instituted O.S.No.20 of 2020 before the Sub Court, Ottappalam (Annexure B), seeking partition of his deceased mother’s properties, including the plaint scheduled property in Annexure A suit. The plaint scheduled property in Annexure A suit is a residential house and adjoining land in Chitra’s name situated within the jurisdictional limits of the Munsiff's Court, Kayamkulam. According to the 1[st] respondent, the property was purchased utilising his and Chitra’s funds and they had been residing in _**Tr.P(C).183/2020**_ 3 the residential house therein. While so, apprehending death at the hands of her husband, Chitra had executed a will, bequeathing the property in the 1[st] respondent's favour. The prayer in this petition is to transfer O.S.No.57 of 2020 on the files of the Munsiff's Court, Kayamkulam, to the Sub Court, Ottappalam for being jointly tried along with O.S.No.20 of 2020 of that Court. 2. Heard Sri.P.B.Krishnan, learned counsel for the petitioner, Smt.R.Leela, learned counsel for the 1[st] respondent and Sri.Rajesh Sivaramankutty, learned counsel for the 2[nd] respondent. 3. Sri.P.B.Krishnan contended that the subject matter of Annexure A suit is a portion of the subject matter of Annexure B suit and hence the transfer is essential to avoid multiplicity of proceedings and conflicting decisions. It is pointed out that Annexure B suit cannot be transferred to the Munsiff's Court, Kayamkulam since the valuation of Annexure B suit is beyond the pecuniary jurisdiction of Munsiff Courts. It is submitted that the petitioner and the 2[nd] respondent are students aged 19 and 24 years respectively and will be put to undue hardship if Annexure A suit is to be contested at Kayamkulam. 4. Smt.R.Leela refuted the contentions and submitted that Annexure A suit was necessitated when the petitioner and his relatives attempted to trespass into the plaint scheduled property. Annexure B _**Tr.P(C).183/2020**_ 4 suit was filed at the instance of Chitra's husband (father of petitioner and 2[nd] respondent), which is evident from the fact that the said person is also arrayed as a defendant. Further, the suit is bad for nonimpleadment of necessary parties and partial partition, since the mother of deceased Chitra is not made a party and all the properties of Chitra are not included. The plaint scheduled property in Annexure A is situated within the jurisdiction of the Munsiff's Court, Kayamkulam and the petitioner will not be put to any inconvenience, since the criminal proceedings initiated by the petitioner against the 1st respondent, alleging forgery in creating the will, is pending before the criminal court at Kayamkulam. The intention in seeking transfer of Annexure A suit is to wreak vengeance against the 1[st] respondent for having had a live in relationship with the petitioner's mother. 5. The prayer in Annexure A suit is for a permanent prohibitory injunction restraining the defendants from trespassing into the plaint scheduled properties and from the committing waste and from obstructing the 1[st] respondent's peaceful possession and enjoyment of the property. Indisputably, the plaint scheduled properties are situated within the territorial limits of the Munsiff's Court, Kayamkulam. The plaintiff being _dominus litis_ , has the right to choose his own forum and normally this right of the plaintiff cannot be interfered with or curtailed _**Tr.P(C).183/2020**_ 5 by either the opposite party or the court. The court while deciding the request for transfer has to bear in mind two conflicting interests; (i) as _dominus litis,_ the right of the plaintiff to choose his own forum; and (ii) the power and duty of the court to assure fair trial and proper dispensation of justice. The court should search for justice and must be satisfied that justice is more likely to be done by refusing to allow the plaintiff to continue the suit in the forum of his own choice. The Apex Court has expatiated on the contours of the power under Section 24 CPC in the following decisions; ## _**Indian Overseas Bank v. Chemical Construction Co.,**_ [(1979) 4 SCC 358]. _“16. The principle governing the general power of transfer and withdrawal under Section 24 of the Code is that the plaintiff is the dominus litis and, as such, entitled to institute his suit in any forum which the law allows him. The court should not lightly change that forum and compel him to go to another court, with consequent increase in inconvenience and expense of prosecuting his suit. A mere balance of convenience in favour of proceedings in another court, albeit a material consideration, may not always be a sure criterion justifying transfer.”_ _**Kulwinder Kaur v. Kandi Friends Education Trust,**_ [(2008) 3 SCC 659] _**Tr.P(C).183/2020**_ 6 _“23. Reading Sections 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 the plaintiff_ _or the 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.”_ 6. Herein, one of the grounds on which transfer is sought is the young age of the petitioner and 2[nd] respondent. It is true that the petitioner is aged only 19 years and his brother, 24 years. At the same time, this Court cannot be oblivious of the fact that age did not deter _**Tr.P(C).183/2020**_ 7 the petitioner’s brother from instituting the suit for partition at Ottapalam within two months of his mother’s death. The other ground is that by transferring Annexure A suit to Ottapalam, multiplicity of proceedings and possibility of divergent findings can be avoided. In my opinion, the request for transfer is not liable to be allowed on that ground, since the prayer in Annexure A suit is for a permanent prohibitory injunction and therefore, possession of the plaintiff/1[st] respondent will be the prime consideration. The fact that the 1[st] respondent is claiming ownership based on a will purported to have been executed by deceased Chitra or that the property for which the 1[st] respondent is seeking injunction is included in the schedule to the partition suit are not reasons for transferring Annexure A suit. Hence, I find no reason to allow the prayer for transfer. In the result, the transfer petition is dismissed. **Sd/-** ## **V.G.ARUN, JUDGE** _vgs_ _**Tr.P(C).183/2020**_ 8 ## **APPENDIX OF TR.P(C) 183/2020** PETITIONER ANNEXURE ANNEXURE A TRUE COPY OF THE PLAINT DATED 11/02/2020 IN O.S.NO.57 OF 2020 ON THE FILE OF THE MUNSIFF COURT, KAYAMKULAM. ANNEXURE B TRUE COPY OF THE PLAINT DATED 29/02/2020 IN O.S.NO.20 OF 2020 ON THE FILE OF THE SUB COURT, OTTAPPALAM.