Kusumanjali Sahoo vs Jitendra Kumar Sahoo

M.S.Sahoo, J

Office note dated 27.04.2023 indicates that notice in the admission and stay matter issued to the sole opposite party by registered post with A.D. returned undelivered with postal endorsement “Addressee Long absent.”

However when the matter is taken up, Sri A.K.Sahoo, learned counsel submits that he has instructions to appear on behalf of the opposite party and files Vakalatnama in Court today. The same be kept on record.

Though the matter is listed for orders, on agreement at the bar, the matter is taken up for admission and disposed of at the stage of admission.

The petition under Section 24 of the C.P.C. has been filed by the petitioner-wife for transfer of C.P.No.35 of 2023, filed by the opp.party-husband under Section 9 of the Hindu Marriage Act praying for restitution of conjugal rights, pending before the learned Judge, Family Court, Kendrapara to the court of the learned Judge, Family Court, Cuttack.

Learned counsel for the petitioner submits that the petitioner is facing difficult circumstances in life having two dependant small children and it would be difficult for her to travel from Cuttack to Kendrapara to attend the proceeding before the learned Judge, Family Court, Kendrapara.

Learned counsel for the opposite party submits that the petition has been filed under Section 9 of the Hindu Marriage Act, therefore, he does not require regular attendance of the parties concerned, the learned counsel representing the parties can appear and the parties shall co-operate with the early disposal of the matter.

Section 24 of the CPC provides as follows:

“24.General power of transfer and withdrawal.

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer either re-try it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section,

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) ‘proceeding’ includes a proceeding for the execution of a decree or order.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.”

Hon’ble  Supreme  Court  in  the  decision, Kulwinder Kaur ALIAS Kulwinder Gurcharan Singh V. Kandi Friends Education Trust and others : (2008) 3 Supreme Court Cases 659 at pagraph-23

“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  witness; 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 discussing the scope of Sections 24 & 25 of the CPC has held as follows : the power, but the duty of the court to make such order. ”

[Emphasis Supplied]

Having heard learned counsel for the parties, applying the principles laid down by the Hon’ble Supreme Court as noted above, this Court is not inclined to allow the prayer for transfer of the C.P. No. 35 of 2023 pending before the learned Judge, Family Court, Kendrapara to the court of learned Judge, Family Court, Cuttack. It is also observed that the parties shall cooperate in expeditious disposal of the matter before the learned Judge, Family Court, Kendrapara.

Both the learned counsel for the parties should take note of the fact that there has been several Information and Communication Technology (ICT) initiatives to make it convenient for the parties to appear before the court through Video Conferencing. The learned Judge, Family Court, Kendrapara shall also consider the possibility of utilizing the ICT for convenience of the appearing parties and for expeditious disposal of pending litigation, if such application is made by any of the parties.

Registry shall intimate the order to the learned Judge, Family Court, Kendrapara to do the needful.

The TRP(C) is allowed with the aforesaid order.

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