Ruma Das Nee Mitra vs Shoukttik Das

Bibek Chaudhuri, J

The instant application under Section 24 of the Code of Civil Procedure is filed by the wife/petitioner praying for transfer of Title Suit No. 894 of 2018 filed by the opposite party/husband in the 1st Court of the learned Civil Judge (Senior Division), Barasat, North 24-Parganas to the Court of the learned Civil Judge (Junior Division), 5th Court at Alipore, South 24-Parganas.

The petitioner filed Title Suit No. 1441 of 2018 in the 5th Court of the learned Civil Judge (Junior Division) at Alipore for a declaration that there is valid and subsisting marriage between her and the opposite party. The said suit was filed on 14th September, 2018. It is alleged by the petitioner that the opposite party after receiving summons of the said suit filed a counter-suit being Title Suit No. 894 of 2018 on 4th October, 2018 praying for declaration that the so-called marriage between the opposite party and the petitioner was a nullity and the certificate of marriage should be treated as non-est.

The petitioner has prayed for transfer of Title Suit No. 894 of 2018 from Barasat to the 5th Court of the learned Civil Judge (Junior Division) at Alipore for analogous hearing of both the suits. It is pleaded by the petitioner that both the suits arose out of the same cause of action between the same parties and in both the suits the matter in issue are directly and substantially similar. The petitioner further states that after marriage it was revealed that the opposite party maintains illicit relationship with other women. As a result, the petitioner was renunciated by the opposite party and she took shelter at her father's house at Haridevpur within the jurisdiction of Alipore at South 24-Parganas. The petitioner compelled to file Title Suit No. 1441 of 2018 for a declaration that the marriage between the petitioner and the opposite party is subsisting. It is also stated by the petitioner that she became mentally ill when she came to know about opposite party's illicit relationship. She is still suffering from such illness and it is not possible for her to attend the Court at Barasat.

Against the application under Section 24 of the Code of Civil Procedure, the opposite party has filed an affidavit-in-opposition denying all material allegations made out against him in the said application. It is specifically pleaded by the opposite party that the petitioner has been residing at Madhyamgram where she owns a residential flat. She received summons of Title Suit No. 894 of 2018 from her Madhyamgram address. Madhyamgram is situated within the jurisdiction of Barasat Court. Therefore, it is more convenient for the petitioner to contest the suit filed by the opposite party at Barasat.

The said fact is refuted by the petitioner in her affidavit-in-reply.

Mr. Kaustav Chandra Das, learned Advocate for the petitioner submits that Title Suit No. 1441 of 2018 filed by the petitioner before the 5th Court of the learned Civil Judge (Junior Division) at Alipore for declaration that the marriage between the petitioner and the opposite party is still subsisting is the earlier suit. On the contrary, the opposite party's suit for declaration that there was no marriage between him and the petitioner being Title Suit No. 894 of 2018 pending at Barasat is the subsequent suit. It is also contended by the learned Advocate for the petitioner that both the suits are between the same parties. The matter in issue in both the suits directly and substantially the same. The Court of the learned Civil Judge (Junior Division) where Title Suit No. 1441 of 2018 is pending is competent to hear Title Suit No. 894 of 2018 filed by the opposite party. Under such circumstances, the subsequent suit filed by the opposite party ought to be stayed under the provision of Section 10 of the Code of Civil Procedure. However, it is contended by the learned Advocate for the petitioner that the petitioner does not want stay of the subsequent suit. What has been prayed in the instant proceeding is to transfer Title Suit No. 894 of 2018 filed by the opposite party to the 5th Court of the learned Civil Judge (Junior Division) at Alipore for analogous trial with Title Suit No. 1441 of 2018.

Mr. Partha Chakraborty, learned Advocate for the opposite party, on the other hand, submits that the opposite party was compelled to file Title Suit No. 894 of 2018 when after marriage it was found by him that the petitioner has a son from her first marriage. It is admitted by the petitioner that she often resides and is still residing at Madhyamgram. Madhyamgram is nearer to Barasat in comparison to Alipore. Even assuming that the petitioner is mentally ill it would be convenient for the petitioner to contest the suit at Barasat staying at Madhyamgram where she has her own residence.

It is also submitted by Mr. Chakraborty that the Court enjoys discretionary power while dealing with application under Section 24 of the Code of Civil Procedure but such discretion must be exercised judicially. There is no reason to exercise such discretion in the facts and circumstances of the present case. The grounds for which the petitioner has sought for transfer of the suit of the opposite party from Barasat to Alipore are prima facie false and concocted. As a result, this application is liable to be rejected.

It is not in dispute that Title Suit No. 1441 of 2018 is earlier suit filed by the petitioner. On perusal of the copies of the plaints in both the suits annexed with the application under Section 24 of the Code of Civil Procedure I find that the issues involved in both the suits are substantially and materially same. It is also not disputed that the petitioner has filed another proceeding under Section 125 of the Code of Criminal Procedure against the opposite party at Alipore.

In the case of Tejalben -Vs.- Mihirbhai Bharatbhai Kothari, reported in (2016) 3 SCC 69 the Hon'ble Supreme Court was pleased to transfer the suit filed by the opposite party from Rajkot to Jamnagar in the State of Gujarat on the ground that other proceedings filed by the petitioner were pending at Jamnagar. Only by relying on the aforesaid decision, I can safely conclude that the instant application under Section 24 of the Code of Civil Procedure should be allowed and Title Suit No. 894 of 2018 should be transferred to the 5th Court of the learned Civil Judge (Junior Division), Alipore for analogous trial with Title Suit No. 1441 of 2018 filed by the petitioner.

As a result, the instant application under Section 24 of the Code of Civil Procedure is allowed on contest, however, without cost.

Office is directed to send a copy of this order to both the Courts below for information and necessary action.

Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.