Mr. G.D. Srinivas vs Dr. Veena Raghuraj and Others

B.S. Patil, J.—In this petition filed u/s 24 CPC, petitioner is seeking transfer of proceedings in O.S. No. 85/2013 pending on the file of the II Additional Civil Judge (Sr. Dn.), Shimoga, to any of the Court at Bangalore City. The case of the petitioner is that he is the resident of Bangalore City. Respondents 1 & 2 being the sisters of the petitioner have filed O.S. No. 85/2013 seeking partition of the properties of the family and also for the relief of declaration that the registered Partition Deed executed on 27.03.2003 was not binding on them.

The further case of the petitioner is that plaintiff No. 1-respondent No. 1 herein is residing at Taliparamba in Kannur District of Kerala State. Whereas, plaintiff No. 2-respondent No. 2 herein is residing at Bangalore. Defendant No. 1-respondent No. 3 herein being the mother of the plaintiffs and defendant No. 3/petitioner herein is also residing at Bangalore. Defendant No. 2-respondent No. 4 herein is residing at California in U.S.A. Defendant No. 4-respondent No. 5 herein is a tenant in one of the premises situated at Bangalore which is the subject matter of partition. Thus, it is contended by the petitioner that as none of the parties to the proceedings are residing at Shimoga and as major portion of the properties which is the subject matter of the suit for partition are located in Bangalore and Chitradurga and only one small site is situated in Shimoga, it would be in the interest of both parties, if the suit is transferred to the Court at Bangalore.

Though the petitioner has made certain allegations against his maternal uncle, who is a lawyer practicing at Shimoga and has urged it as one of the grounds for seeking transfer of the proceedings in the suit, during the course of arguments, leaned counsel for the petitioner has filed a memo dated 08.10.2013 withdrawing all the allegations made against the maternal uncle of the petitioner. It is also stated in the memo that the petitioner withdraws the allegations made either directly or indirectly against the Presiding Officer. In the light of this memo, the allegations made in the body of the petition against the maternal uncle of the petitioner and the Presiding Officer are permitted to be withdrawn.

Learned counsel for the petitioner placing strong reliance on the judgment of the Apex Court in the case of Beni Shankar Sharma and Others Vs. Surya Kant Sharma and Others, contends that the registered Partition Deed which is assailed in the suit has been executed at Bangalore and almost all the persons who are likely to be the witnesses in the suit are residing at Bangalore and major portion of the immovable properties are located in Bangalore and Chitradurga and that it would be extremely difficult for the petitioner and the witnesses to travel to Shimoga to defend themselves. He also points out that even looking from the point of view of the plaintiffs, it would be convenient for them to prosecute the suit at Bangalore. The 3rd respondent who is the mother of the petitioner and is aged about 7(3 years being also the resident of Bangalore, it would be convenient for her to defend the suit at Bangalore and therefore, in the ends of justice and keeping in mind the convenience of the parties, the suit may be ordered to be withdrawn from the Court at Shimoga and transfer the same to the Court at Bangalore.

Per contra, learned counsel appearing for the plaintiffs-respondents 1 & 2 and the learned counsel appearing for respondents 3 & 4 submit that it would be convenient for them to prosecute the suit at Shimoga. Learned counsel further points out placing reliance on the judgment in the case of Sri. Mahadeva Swamy and Sri. Shiva Prasad Vs. Sri. Ramachandra, Sri. M.S. Siddegowda and Sri. Madaiah, that where there are more than one property situated in the local jurisdiction of more than one Court, as per Section 17 CPC plaintiffs are entitled to file the suit in one of the places in which the properties are situated and that the petitioner-defendant No. 3 cannot have any say in the matter and force the jurisdiction of Bangalore Court on them.

Having heard the learned counsel for both parties, I find from the facts and circumstances involved in the case that admittedly the registered Partition Deed was executed on 27.03.2003 at Bangalore. The witnesses who have attested the Deed are all residents of Bangalore. None of the parties are residing at Shimoga and almost all the parties, except respondents 1 & 4 are residing at Bangalore. Even for the 1st respondent who is residing at Taliparambam in Kannur District of Kerala State, it would be easier to travel to Bangalore and prosecute the case, instead of going over all the way to Shimoga. So far as respondent No. 4 is concerned who is residing in California, it does not matter much whether the case is prosecuted at Shimoga or Bangalore. It may be convenient, if the case is taken up in the capital city of Bangalore for him also to arrive here from California. Therefore, looked from the convenience of all the parties and the availability of the records and the witnesses necessary to be produced before the Trial Court, I find that Bangalore will be a convenient place for all the parties, where the suit is required to be tried. I find that the contention of the petitioner urging that Shimoga where the suit is now filed is not convenient to any one of the parties is acceptable in the facts and circumstances of the case. Hence, keeping in mind the decision of the Apex Court in the case of Beni Shankar Sharma and Others Vs. Surya Kant Sharma and Others, , I am of the view that this petition deserves to be allowed. Accordingly, this petition is allowed. The proceedings pending in O.S. No. 85/2013 on the file of the II Additional Civil Judge (Sr. Dn.), Shimoga, are withdrawn and transferred to the City Civil Court at Bangalore. The proceedings may be assigned to any of the City Civil Courts in Bangalore by the Principal District Judge, Bangalore District. Since an apprehension is expressed by the learned counsel for the respondents that as the Court in Bangalore are flooded with number of cases, there is likelihood of delay in disposal of the case which may prejudicially affect the interest of the respondents, a direction is issued to the Court at Bangalore to which the case is transferred to make all endeavours to dispose of the suit as expeditiously as possible. Both parties are directed to co-operate in the disposal of the case. The amount of Rs. 10,000/- deposited towards litigation costs as per the direction issued by this Court on 10.07.2013 shall be paid to the 3rd respondent who is the mother of the petitioner.