Benudhar Swain and Others vs Nilamani Swain and Another

A.S. Naidu, J.—Heard.

This is an application filed u/s 24 of the CPC with a prayer to transfer C.S. No.319 of 2002 pending in. the Court of the Civil Judge (SD), Puri to the Court of the Civil Judge (SD), Angul.

Admittedly the petitioners are the defendants in the said C.S. which is one for partition. According to Mr. Misra, learned counsel for the petitioners, the bulk of the properties are situated at. Angul and, as such, the suit should be transferred to Angul. It is further submitted by him that the petitioners are old retired persons and it is inconvenient for them to travel all the way from Angul to Puri and contest the Us.

The aforesaid submissions of Mr. Misra are strongly repudiated by the learned counsel for the plaintiff-opposite parties. He submitted that the plaintiffs are residing at Puri and substantial property which is the subject-matter of the suit is at Puri itself. He further submitted that the Civil Judge (SD) at Puri has jurisdiction to try the suit and the plaintiffs have filed the suit at the place of their choice and, as such, this Court may not transfer the suit from Puri to Angul.

For appreciating the submissions of the learned counsel, this Court perused the schedule of properties mentioned in the plaint. It appears that the property as per Lot No: 1 of the Schedule ''B'' are situated at Puri; Lot Nos.2, 3, 4, 5, 6 and 12 are situated at Dhenkanal and only Lot Nos. 7, 8, 9, 10 and 11 are situated at Angul. Therefore the submission of the learned counsel for the petitioners that major portion of the disputed properties are situated at Angul cannot be accepted. In fact, major portion of the properties re situated at Dhenkanal. The other ground on which the transfer is sought is that the petitioners are old persons and it will be inconvenient for them to travel all the way from Angul to Puri to contest the suit. But then that cannot be a ground for transfer of a suit.

Law is well settled that only to suit the convenience of a party, the other party should not be put to inconvenience. While dealing with a petition u/s 24 CPC the Court always has to keep in mind that the plaintiff has the choice of his forum so long as the suit is not subject to the defect of want of local jurisdiction a suit is not to be transferred from the Court where the plaintiff chooses to institute it, merely to serve the convenience of the defendants (see Purna Chandra Mahanty and Others Vs. Samanta Radhaprasana Das, .

Mr. Misra also relied upon the decision reported in AIR 1982 SC 52 and submitted that as the substantial portion of the suit property is situated at Angul, the suit may be transferred to Angul. But then as would be evident from the suit schedule, substantial portion of the suit property is situated at Dhenkanal and not at Angul. The other ground that it will be inconvenient to the defendants who are old persons to travel all the way from Angul to Puri also cannot be a ground to transfer a suit. As per Order 26, Rule 4 CPC if there is inconvenience and a party is unable to travel to the Court for adducing evidence, he can be examined on commission as has been held in the decision reported in Om Prakash Agarwala Vs. Berhampur Municipality, . In view of the aforesaid settled position of law, I am not inclined to transfer the suit from Puri to Angul and dispose of this Writ Petition accordingly.