Smt. Anita Kansal vs Sushil Kumar

K.P. Singh, J.—This is an application u/s 24 of the CPC for transfer of the case No. 12 of 1989 Sushil Kumar Kansal v. Smt. Anita Kansal pending in the court of the District Judge Uttar Kashi to the court of the District Judge, Dehradun.

The applicant seeks transfer of the case on the ground that she would be beaten and tortured by the opposite party ; secondly on the ground that the opposite party himself had filed a case u/s 9 of the Hindu Marriage Act and when the applicant claimed maintenance u/s 24 of the aforesaid Act, the opposite party withdrew the suit and filed a case for divorce in the court of the District Judge, Uttar Kashi; thirdly, according to the applicant, the family of the opposite party permanently resides at Dehradun and that the opposite party often comes to Dehradun, therefore, on the ground of convenience of the parties it is but proper that the case filed by the opposite party in the court of the District Judge, Uttar Kashi should be transferred to the court of District Judge, Dehradun. Relevant allegations have been made by the applicant in her application vide paragraphs 17 to 21.

The contesting opposite party has refuted the contention raised on. behalf of the applicant. According to him there is a danger to his life if the case is transferred to the court of the District Judge, Dehradun and that since the parties had last resided in Uttar Kashi, therefore, the case should be tried at Uttar Kashi, It has been stated that during the pendency of the suit u/s 9 of the Hindu Marriage Act the opposite party was badly treated by the father of the applicant and his students and various other picas have been taken to negative the relief of transfer sought by the applicant. Necessary allegations have been made in paragraphs 19 to 27 of the counter affidavit.

The Learned Counsel for the opposite party has placed reliance upon the ruling reported in T. Ramadevi Vs. T.V. Subrahmanyam, SD.

I have considered the contentions raised on behalf of the parties and I have heard the Learned Counsel at some length. I have a feeling that the contesting opposite party has filed the application u/s 13 of the Hindu Marriage Act in the court of the District Judge, Uttar Kashi only with a view to put the applicant to a great inconvenience. He himself had filed the suit u/s 9 of the Hindu Marriage Act at Dehradun. The claim of the applicant for maintenance u/s 125 Code of Criminal Procedure was also contested in the district of Dehradun. The applicant has succeeded in her claim before the Criminal Court. When the applicant made a claim for maintenance u/s 24 of the Hindu Marriage Act, the opposite party withdrew his suit and thereafter has instituted the present case u/s 13 of the Hindu Marriage Act.

In the case cited on behalf of the contesting opposite party a learned Single Judge of that Court vide paragraph 6 has indicated as below:

...Normally a litigant must have, subject to the applicable law, the choice of the Court where he should institute the suit and prosecute it. Except where that choice is exercised by him oppressively or unjustly or malafide in order to injure the opposite party or in order to turn the legal process into an engine of oppression or where for local reasons fair trial is not possible, this Court should not, acting in the name of the wide language of Section 24 of CPC upturn that choice of the litigant and nullify his statutory right. It is undoubtedly within the province of the Courts to prevent the abuse of judicial process.

The Learned Counsel for the opposite party has emphasized that the opposite party could institute the suit according to his choice. In the fasts and circumstances of the case when the opposite party had some fear to proceed with the suit u/s 9 of the aforesaid Act, he was fully justified in instituting the suit at Uttar Kashi and his case should not be transferred to the court of the District Judge, Dehradun. To my mind, the allegations about fear at the hands of both the parties aire only with a view to make sufficient cause for their claims. Since the opposite party had filed claim u/s 9 of the Act in district Dehradun and has also contested the claim of the applicant for maintenance u/s 125 Code of Criminal Procedure in the district of Dehradun, his choice for filing the claim u/s 13 of the Hindu Marriage Act at Uttar Kashi appears to me a little oppressive, unjust and malafide. The act on the part of the opposite party in getting his case u/s 9 of the Hindu Marriage Act withdrawn and thereafter instituting the claim u/s 13 of the Hindu Marriage Act at Uttar Kashi is unjust and malafide and it is a counter blast to the application filed by the applicant u/s 24 of the Hindu Marriage Act.

In view of Section 19 of the Hindu Marriage Act the district court at Dehradun as well as the district court at Uttar Kashi both are competent to hear and decide the dispute between the parties. In para 17(c) of the application, the applicant has stated that the family of the opposite party permanently resides at Dehradun and that the opposite party also visits Dehradun. The reply to the aforesaid paragraph vide paragraph 22 of the counter affidavit filed on behalf of the opposite party does not indicate that the aforesaid fact is incorrect, Therefore, I think that the ends of justice would be met better it the dispute between the parties is decided at Dehradun. Looking to the convenience of the applicant and the fact that the family of the opposite party resides at Dehradun and the conduct of the opposite party in getting his claim u/s 9 withdrawn in the court of the District Judge, Dehradun and thereafter filing claim u/s 13 of the Hindu Marriage Act in the court of the District Judge, Uttar Kashi, is unjust. I think that the case should be tried at Dehradun. I do not attach much importance to the allegations made by both the parties about danger to their life. To me it appears that the allegations in this regard are vague, general and purposive. The filing of the petition u/s 13 of the Hindu Marriage Act at Uttar Kashi after withdrawing his claim u/s 9 of the Hindu Marriage Act in the court of District Judge, Dehradun by the opposite party leads ms to an inference that the move on the part of the opposite party is unjust and malafide.

For the foregoing discussion this application is allowed, the case No. 12 of 1989 Shri Sushil Kumar Kansal v. Smt. Anita Kansal pending in the court of the District Judge, Uttar Kashi is hereby transferred to the court of the District Judge, Dehradun who shall proceed with the case strictly in accordance with law. Parties are directed to bear their own costs.