Vijaylakshmi vs Mukul

The present transfer application has been filed by the petitioner seeking transfer of matrimonial proceedings pending before Family Court, Churu to

Family Court, Bikaner.

At the outset, learned counsel for the petitioner referred to order in Smt. Gayatri Devi v. Shri Raghuveer Singh : S.B. Civil Transfer Application

No.112/2015 decided on 28.08.2019, whereby, placing reliance on Bhanu Kumari v. Jitendra Singh & Ors.: 2007(2) RLW (Raj.) 1077, as many as 103

petitions were decided as the Court was of the opinion that application under Section 24 CPC does not require issuance of notice to the other side and

Court on its own motion passed orders for transfer of the case. It was prayed that the transfer petition be allowed without issuing notice to the

respondent.

I have considered the submissions made by learned counsel for the petitioner and have perused the order in the case of Smt. Gayatri Devi (supra) and

Bhanu Kumari (supra).

The Co-ordinate Bench while deciding the case of Smt. Gayatri Devi (supra), inter-alia observed and directed as under:-

Section 24 CPC reads as under:-

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(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.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withdrawn under sub-section (1),the Court which 1[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in

the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.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.

It is noticed that Section 24 CPC does not require it necessary to issue notice to the other side and this Court, on its own motion or on being

satisfied at any stage, pass appropriate order for transfer of the concerned case.

Similar view has been taken by the Rajasthan High Court in Bhanu Kumari Vs. Jitendra Singh & Ors., reported in2007(2) RLW (Raj.) 1077.

This Court also notices that in normal course, transfer petitions are filed in this Court and they remain pending for years as service is avoided by the

other side.

In some cases, interim orders are passed by the Court resulting in the matrimonial matter remaining undecided in the concerned family court.

Thus, in the interest of justice and with the purpose to expeditiously dispose of the matters, this Court invokes its power under Section 24 CPC and

deems it appropriate to allow all these applications of transfer and direct the transfer of concerned case to the place, as prayed for in the applications

by the wife.

(Emphasis Added) A bare reading of provisions of Section 24 CPC, indicates that the opening words itself are explicit which provides that 'on the

application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, the High Court may pass order'.

The exception is in a case where the power is exercised suo moto, when issuance of notice is not necessary.

In view of the express stipulation in the provision, it cannot be said that 'on an application made by parties for transfer of proceedings', the other

party/parties are not required to be heard.

Further the Bench relied on judgment in the case of Bhanu Kumari (supra).

A perusal of judgment in the case of Bhanu Kumari (supra) indicates that the Bench in the said case inter-alia observed as under:-

(8). Exercising powers under section 24 of the CPC is discretionary. It is always for the court to find out from the allegations so made, whether any

reasonable ground is made out for transfer of the case and the court must be satisfied that good atmosphere is likely to be extended between the

parties if the case is transferred reposing full confidence upon the Court of Justice. The jurisdiction under this section should be exercised with

extreme care and caution and the plaintiff could not be stopped from going on when he has right of action against defendant. The search should be for

justice and the Court must be satisfied that justice could more likely be done between parties by refusing to allow plaintiff to continue his suit in the

forum of his choice. In transfer application it is not necessary for petitioner to prove any definite bias against the presiding judge but it is enough if the

petitioner can show that he has genuine apprehension that he would not get justice from court in which his case is pending. Where the totality of the

facts and circumstances obtaining in the case and looking at the overall view of the nature of the case and convenience of the parties it would be just

and reasonable to direct transfer of the suit to the other court, the suit may be transferred to other court under section 24 CPC.

There are apparently no observations in the said judgment that no notice was required to be issued 'on an application under Section 24 CPC' before

exercising power of transfer of proceedings from one Court to another.

This is besides the fact that judgment in the case of Bhanu Kumari (supra) has been reversed by Supreme Court in Jitendra Singh v. Bhanu Kumari:

(2009) 1 SCC 130.

The law on the aspect is settled. Supreme Court in Vivekananda Nidhi & Others V. Asheema Goswami: (2000) 10 SCC 23, specifically took into

consideration the submissions regarding requirement to issue notices and while distinguishing between power exercised suo moto and 'on an

application by a party', inter-alia observed as under:-

Learned Senior Counsel for the respondent is right when he contends that if it is an order passed suo motu under Section 24 CPC, there is no

question of issuing notice to the other side. However, the moot question remains whether the order of the learned District Judge was passed suo motu

or not. Section 24 CPC itself provides that either on the application of any of the parties and after notice to the parties and after hearing such of them

that desired to be heard, or of its own motion without such notice, the High Court or the District Court can at any stage pass appropriate orders under

Section 24 CPC, if the conditions provided therein are satisfied. Now, on the facts of the present case, it is difficult to appreciate how the order of the

learned District Judge can be considered to be a suo motu order when he was moved by an application by the respondent and on that application the

learned District Judge thought it fit to invoke his jurisdiction and pass an order under Section 24 CPC. Therefore, invoking of powers under Section 24

CPC was not suo motu, but only on the basis of the abovesaid application. Once that conclusion is reached the statutory provisions of Section 24 start

operating and whatever may be the ultimate nature of the order, the notice had to go to the other side. This, unfortunately, was not done in the present

case. Therefore, only on this short ground, the impugned order of the District Judge dated 14-12-1995, as well as the order of the High Court

confirming the same are set aside. As a consequence thereof, the transferred suit which is now, we are told, pending before the 10th Court of the

District Judge, Alipore, has to be kept pending awaiting further orders as indicated hereinbelow. Therefore, the application of the respondents under

Section 24 of the Code of Civil Procedure is restored to the file of the learned District Judge, Alipore. It will be for the District Judge, Alipore, after

issuing notice to the appellants who are the contesting parties in the application under Section 24 CPC and after hearing both the parties, to pass

appropriate orders thereon.

(Emphasis Supplied) Again in the case of Jitendra Singh (supra), Supreme Court reiterated as under:-

The purpose of Section 24 CPC is merely to confer on the court a discretionary power. A court acting under Section 24 CPC may or may not in its

judicial discretion transfer a particular case. Section 24 does not prescribe any ground for ordering the transfer of a case. In certain cases it may be

ordered suo motu and it may be done for administrative reasons. But when an application for transfer is made by the party, the court is required to

issue notice to the other side and hear the party before directing transfer. To put it differently, the court must act judicially in ordering a transfer on the

application of a party. In the instant case the reason which has weighed with the High Court for directing transfer does not really make out a case for

transfer.

(Emphasis Supplied) In view of the express provisions of Section 24 (1) CPC and the judgments of Supreme Court in the case of Vivekananda Nidhi

(supra) and Jitendra Singh (supra) this Court is unable to agree with the ratio in the case of Gayatri Devi (supra) regarding lack of requirement to

issue notice before transferring a proceeding under Section 24 CPC.

This Court is also unable to agree that power of suo moto transfer under Section 24 CPC can be invoked/must be invoked in each and every

application made by a wife for transfer of matrimonial proceedings, irrespective of the circumstances indicated in the application, as a rule.

For the above reasons, the issues need to be referred to a larger bench.

As a result, the registry is directed to place papers and proceedings of the present case before Hon'ble Chief Justice to obtain suitable directions to

place the following questions for the opinion of a Larger Bench of this Court:-

(a) Whether the power under Section 24 CPC can be exercised by the High Court 'on the application of any of the parties', without issuing notice to

the other party/parties?

(b) Whether on an application made by wife under Section 24 CPC for transfer of matrimonial proceedings, irrespective of the circumstances

indicated in the application, suo moto power can be exercised by the High Court, as a rule so as to obviate the requirement of issuing notices to the

other party/parties?

As the matter has been referred to a Larger Bench, further proceedings in Civil Misc. Case No.17/2020 pending before the Family Court, Churu, shall

remain stayed.