Ved Parkash Garg vs Seema

This revision petition is directed against the order of the Additional District Judge(II), Jind, dated Feb., 3, 1986, whereby the petition u/s 13 of the Hindu Marriage Act. 1955; (hereinafter called the Act), filed by the husband-petitioner Ved Parkash Garg against his a wife-respondent Smt. Seema, seeking divorce on the ground of cruelty and desertion, has been stayed u/s 10, Civil Procedure Code, 1908 . (hereinafter called the Code).

Admittedly prior to the filing of the said petitioner the respondent wife has already filed petition under S. 9 of the Act for restitution of conjugal rights against the petitioner which is pending in the Court of the Additional District Judge, Delhi, since Dec., 1984. The petitioner husband filed the petition under S. 13 of the Act on Aug., 5, 1985, and it is pending in the Court of the Additional District Judge (II), Jind, in Haryana. When the. notice of the said application was given to her, she moved an application under S. 10 of the Code for staying the proceedings there in view of the petition filed by her in the Court at Delhi. The said application was opposed by the husband primarily on the ground that the relief being sought in the two petitions was different and as such the pendency of the previously instituted petition under S. 9 of the Act shall not stand in the way of the petition under S. 13 of the Act.

However, the learned Additional District Judge vide impugned order came to the conclusion that in case the petition under S. 13 is allowed to proceed and if ultimately allowed, the petition earlier filed under S. 9 of the Act by the wife in the Court at Delhi would he rendered infructuous as after the grant of the, decree for divorce there would be no occasion for passing the order for restitution of conjugal rights. Consequently, the application under 5. l0 of the Code was allowed and the petition under S. 13 of the Act was stayed till the decision of the petition filed by the wife under S. 9 of the Act, pending in the Court at Delhi.

According to the petitioner, the proceedings under S. 13 could not be stayed in view of the provisions of S. 21A of the Act, which provides for the transfer of petitions in certain cases. According to the learned counsel for the petitioner, even the petition under S. 13 could not be transferred under the said provisions of the Act to the Court at Delhi and therefore, the question of staying the proceedings there in under S. 10 of the Code did not arise. In support of the contention, the learned counsel relied upon Gurmail Kaur v. Pritam Singh, 1979 Hindu LR 86(Punj & Har). On the other hand, the learned counsel for the respondent wife submitted that the impugned order was just and proper and, therefore, there was no justification for interfering with the same in revisional jurisdiction. In any case, argued the learned counsel, it was a fit case which should be transferred to the Court at Delhi where the petition under S. 9 filed earlier by the wife was pending so that both the petitions could be decided simultaneously by one court.

According to the learned counsel, this Court has ample powers to transfer the proceedings pending in the Court at Jind, in Haryana, to the Court at Delhi, under S. 23 of the Code. The learned counsel also submitted that S. 21A of the Act was not exhaustive and, therefore, it did not debar the staying of the proceedings in the subsequent petition or the transfer of the same to the Court where the earlier petition was filed. In support of the contention, the learned counsel relied upon Guda Vijayalakshmi Vs. Guda Ramachandra Sekhara Sastry, : State Bank of India Vs. Sakow Industries Faridabad (Pvt.) Ltd., New Delhi, and a judgment of the Karnataka High Court in Manjulatha v. Dr. M. L. Narasimhan. 1985(2) Hindu LR 10.

After hearing the learned counsel for the parties and going through the case law cited at the bar, I am of the considered opinion that it is a fit case where the petition filed by the husband under S. 13 of the Act, be transferred to the Court at Delhi where the petition filed under S. 9 of the Act by the wife is already pending. It has been held by the Supreme Court in G. Vijaya-lakshmi''s case (supra), that so far as S. 21A of the Act is concerned, its marginal note makes it clear that it deals with power to transfer petitions and direct their joint or consolidated trial in certain cases and is not exhaustive. In the said case the Supreme Court by exercising powers under S. 25 of the Code transferred the divorce proceedings initiated by the husband from one State to another.

The short question in this petition is; whether this Court is competent to transfer the proceedings from this Court at Jind to the Court at Delhi which is not under the jurisdiction of this Court ?

This matter is not res integra. In State Bank of India Vs. Sakow Industries Faridabad (Pvt.) Ltd., New Delhi, , this Court in exercise of its powers under S. 23(3) read with S. 151 of the Code, transferred the case pending in the Ballabhgarh Court, in the Haryana State, to the Court at Alipore, District 24 Parganas, West. Bengal, wherein the suit filed by the petitioner therein was already pending. Similarly, the Karnataka High Court in Manjulatha''s case relying upon the Supreme Court decision in Guda Vijayalakshmi Vs. Guda Ramachandra Sekhara Sastry, , and the decision of this court in Sakow Industries case transferred the proceedings initiated by the husband from the Court of the City Civil Judge, Bangalore, to the Court of the Chief Judge, City Civil Court, Hyderabad, under S. 23(3) of the Code Section 23 of the Code reads as under:

"To what Court applications lie:--(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under 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."

Thus, sub-section (3) provides for the situations where two Courts have the jurisdiction to try the petitions and are subordinate to different High Courts. In such a situation, the application for transfer shall be made to the High Court within the local limits of whose jurisdiction the Court in which the petition was brought is situate. If once it is held that S. 21A of the Act is not exhaustive and the Code is made applicable to the proceedings under the Act under sub-sec.(3) of S. 21A, then this Court has the power to transfer the proceedings pending in the Court at Jind to the Court at Delhi. It could not be disputed that both the petitions, i.e., the one filed by the wife earlier and pending in the Court at Delhi and the one filed by the husband and pending in the Court at Jind, should be tried simultaneously in the interest of justice in the Court at Delhi.

In view of the above discussion, this revision petition against the impugned order is disposed of in-as-much as order staying the proceedings is vacated with the direction that the petition under S. 13 of the Act, brought by the petitioner and pending in the Court at Jind, is transferred to the Court at Delhi where the proceedings under S. 9, initiated by the respondent are pending. The Court at Delhi may simultaneously proceed with the trial of both the petitions. No order as to costs.

Order accordingly.