Smt. Shailey Madne vs Pankaj Kumar Madne

Mr. Brij Kishore Dube, J.—This Transfer Petition u/s 24 of the Code of Civil Procedure, 1908 is preferred on behalf of the applicant/wife for transferring the Civil Suit No. 639-A/2011 HMA (Pankaj Kumar Madne Vs. Smt. Shailey Madne) filed by the non-applicant/husband before the Court of Principal Judge of Family Court, Bhopal from such Court to the Family Court at Gwalior for its further trial. Learned Counsel for the applicant submitted that this transfer petition is maintainable before this Bench. He has placed reliance on the case of Smt. Lakshmi Nagdev Vs. Jitendra Kumar Nagdev, and an unreported order dated 26-11-2008 passed in M.C.C. No. 673/2006, Smt Kalpana w/o Manish alias Mahendra Singh Vs. Maish Singh alias Mahendra Singh, by this Court.

In response, learned Counsel for the respondent submits that the application is not maintainable before this Court. He has placed reliance on the case of Smita Jain Vs. Anil Kumar Jain,

According to the applicant her marriage was solemnized with the non-applicant on 13-6-2010 as per Hindu rites and customs at Bhopal and after marriage, they lived together as husband and wife. She was ill-treated by the non-applicant and his family members for non-fulfilling their greed of dowry and she was ousted from the house by the non-applicant, thereafter, she came to her parental house at Gwalior. It is further pleaded by the applicant that he has filed an application u/s 125 of Cr.P.C. before the Family Court, Gwalior and also lodged a report against non-applicant and his (non-applicant''s) family members, arising out of which a criminal case under Sections 498-A, 506/34 of IPC and Section 4 of Dowry Prohibition Act, is pending in the Court of JMFC, Gwalior. She has also made a complaint against the non-applicant and his family members, as a result of which a case u/s 12 of the Protection of Women from Domestic Violence Act, 2005 was registered and is pending before the Court of JMFC, Gwalior. On the pretext, the non-applicant has filed divorce petition u/s 13 of the Hindu Marriage Act, 1955 against her which is registered as Civil Suit No. 639-A/2011 and is pending before the Family Court, Bhopal. The applicant has no source of income and she is unable to come alone to attend the Court at Bhopal regularly and apprehending that non-applicant may put her to trouble, therefore, she prayed for transferring case from Family Court, Bhopal to Family Court, Gwalior.

It is appropriate to reproduce the Sections 23 and 24 of CPC, which read as under :-

To what Court application lies.- (1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application u/s 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

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) retransfer 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 any order of transfer, either retry 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.

In the case of Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand Saraswati Vs. Ramji Tripathi and Others, , the Division Bench of this Court in Para 10 has held as under:-

General power of transfer and withdrawal of suits are contained in Section 24 of the Code of Civil Procedure. Sections 22 and 23 of the Code apply only to cases where the plaintiff has the option to sue in two or more Courts. u/s 22, the defendant, after notice to the other parties and at the earliest possible opportunity and at or before settlement of issues, may apply to have the suit transferred to one of the other Courts where the suit could have been filed. Though the notice to the other parties is to be given, the defect can be cured by notice on the application itself. The Court has to decide the application after hearing the objections, if any, of the other parties in the suit. Section 23 prescribes the forum where the application for transfer has to be made. In case, the suit is sought to be transferred to a Court subordinate to another High Court, the application has to be made in the High Court within whose jurisdiction the suit is pending. In the present case, the respondent No. 1 entered appearance in the suit for the first time before the District Judge, Seoni, on 9-9-1974 and the application for transfer was moved in this Court on the very next date on 10-9-1974 to transfer the suit to a Competent Court at Allahabad. The learned Single Judge decided the application after notice and hearing all the parties to the suit. As such, the learned Single Judge has rightly entertained and decided the transfer application. A Division Bench of this Court in AIR 1940 145 (Nagpur) , has held that under Sections 22 and 23, High Court can transfer a suit pending in a Subordinate Court to a Court subordinate to another High Court. Same is the view taken by the Supreme Court in Western U.P. Electric and Power Supply Co. Ltd. Vs. Hind Lamps Ltd., Therefore, the learned Single Judge had the jurisdiction to transfer the suit from the Court of District Judge, Seoni to the Court of District Judge, Allahabad.

(Emphasis supplied)

While explaining the scope of Section 23 (3) of the CPC, this Court in the case of Smt. Lakshmi Nagdev (supra), observed that the said Section empowers the High Court to transfer a suit pending in a Subordinate Court to a Court subordinate to another High Court. In Smt. Kalpana (supra), the suit pending before the Court of Additional District Judge, Sonkakasha, Distt. Dewas was transferred to the Family Court at Gwalior.

In Smita Jain (supra), this Court has held that the High Court at Jabalpur has the control over the jurisdiction of Courts at Bhopal as per the notification issued. What the petitioner is asking for transfer of the cases from Bhopal to Vidisha. This Court is competent to issue an order of transfer of one case of any Subordinate Court within its jurisdiction to the Court of competent jurisdiction in other district, which may not be within the jurisdiction of this Court but in the same State.

It is a undisputed fact that the aforesaid Family Court of Bhopal comes under the territorial jurisdiction of the Principal Seat at Jabalpur, while, the Family Court at Gwalior comes under the territorial jurisdiction of Bench of this Court at Gwalior and, therefore, in view of the provisions of Sections 23 and 24 of CPC read along with Rules of Chapter 3 of the Madhya Pradesh High Court Rules, 2008, such transfer petition could not be entertained at this Bench at Gwalior.

Therefore, in view of the aforesaid provisions and the principle discussed hereinabove, J am of the considered view that this transfer petition is not maintainable before this Beach as the applicant has the remedy to approach the Main Seat, Jabalpur seeking transfer of the case, from the Family Court, Bhopal to Family Court, Gwalior.

At this stage, learned Counsel for the applicant seeks permission to withdraw this application with liberty to file the same before the Principal Seat at Jabalpur. Considering the submission made by learned Counsel for the applicant, the transfer petition is dismissed as withdrawn with the liberty as prayed for.