V.Y. Ghorpade vs Sandur Udyog Private Limited

B. Veerappa, J—The petitioner who is aged about 77 years has filed civil petition under Section 24 of code of Civil Procedure to transfer O.S. No. 5/2011 on the file of, Civl Judge (Jr. Dn.) at Sandur Bellary to Civil Judge ''(Jr. Dn.) in'' Bangalore (Rural).

It is the case of the petitioner that the respondent filed suit in OS. No. 5/2011 against him for specific performance to enforce the agreement dated 05.10.1992 for the sale of property of 6.48 acres of land in Sy. No. 189 situated at Lakshmipur, Sandur Taluk contending that under the agreement, it is the duty cost on the respondent herein has to get the suit schedule property converted from agricultural land to non agricultural land use and the sale deed has to be registered. The suit schedule property was converted on 29.02.1996. Despite this, the respondent did not register the sale deed and coerced the petitioner to sign an endorsement dated 23.11.1994 and with the help of the petitioner''s elder brother Sri M.Y. Ghorpade, the respondent by force and undue influence, coerced the petitioner to hand over the possession of the suit schedule property to the respondent company without even getting the sale deed registered. Though the conversion of the suit schedule property was done as early as 29.02.1996, the respondent company did not come forward to execute the sale deed though fully award of the same etc., and the respondent filed the suit contending that the present petitioners who are the defendants has executed an agreement of sale on 05.10.1997 and in terms of the agreement he has to execute the document within the time prescribed. Though the defendant has received entire sale consideration, he has not executed the sale deed. Therefore, he was constrained to file the suit for specific performance.

The main grievance of the petitioner to transfer the case from Sandur to Bangalore is that the petitioner is suffering from depression and mental illness from several years and he is aged about 77 years and even his wife who is general power of attorney holder is aged about 71 years is also suffering from age related ailments and has had a hip replacement surgery recently. Hence, it is quite impossible for her at her age and with the recent surgery to make the 6 to 7 hours journey to Sandur regularly to attend court proceedings. It is also submitted that the respondent herein already has filed a money recovery suit bearing O.S. No. 3512/2012 against the petitioner in the Court of City Civil Court in Bangalore. Therefore, if O.S. No. 05/2011 filed by the respondent herein in Sandur is also transferred to Bangalore, it would make it possible for both the parties to attend to the cases in Bangalore without much hardship. Hence, he prayed to transfer the suit from Civil Judge (Jr. Dn.) Sandur to Civil Judge (Jr. Dn.), Bangalore (Rural).

The respondent-plaintiff filed objection to the petition denied the averments made and specifically contended that if the case of the petitioner is accepted, the respondent would be put to great inconvenience. He also contended that the subject matter of the suit in O.S. No. 3512/2012 was executed at Bangalore. Therefore, it has been filed at Bangalore. Therefore, he sought to dismiss the civil petition.

I have heard the learned Counsel for the parties to the lis.

Sri Padmaja Tadapatri, learned Counsel appearing for Sri K.L. Patil, has reiterated the averments made in the petition and she relied upon Annexure-E the discharge summary issued by St. Philomenas Hospital, Bangalore in favour of Urmila Ghorpade the G.P.A. holder of the petitioner which depicts that patient had fracture neck femur 25 years back, she was treated with ORIF with multiple screws. Screws broke and 2nd time surgery was done to remove screws patient developed pain in right hip 2 years back. History of progressive worsening of symptoms (+). She also produced the certificate issued by Dr. R. Ram Iyer as per Annexure-F to the effect that Urmila Ghorpade has been operated on her right hip joint. A total Hip Replacement has been done and metal implants have been used. She will need wheelchair assistance @ airports. She has also produced the discharge summary certificate of the petitioner issued by Bhagavan M. Jain Hospital dated 27.11.2013 and diagnosis are shown as under:

� Symptomatic complete Heart Block (hyperkalaemia induced) requiring TPI, reverted to sinus Rhythm

� Normal LV function (EF - 55%)

� Acute kidney injury (recovered)

� Hypertension

� Diabetes Mellitus type II

� Old CVA

� Asymptomatic Cholelithiasis

Another certificate dated 15.01.2014 issued in favour of the original petitioner is produced and diagnosis are made as under:

� SICK sinus syndrome with complete heart block

� Post PPI (DDD-R) on 17.1.14

� Fair LV function (EF - 50%

� Hypertension

� Diabetes Mellitus type II

� Old CVA

Yet another discharge summary issued by the same hospital dated 17.01.2015 of Mr.Vijay Ghorpade, the original petitioner is produced and diagnosis made as under:

� Post PPI status

� ACS/AWMI

� Moderate LV dysfunction

� Double vessel disease

� Hypertension

� Diabetes Mellitus type II

Therefore, sought to allow the writ petition on the above grounds.

The learned Counsel for petitioner also relied upon the judgment of the Hon''ble Supreme Court in the case of Dr. Subramaniam Swamy Vs. Ramakrishna Hegde, AIR 1990 SC 113 : (1989) 4 JT 131 : (1989) 2 SCALE 860 : (1990) 1 SCC 4 : (1989) 1 SCR 469 Supp , to the effect that paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the respondent. She also relied upon the dictum of the Hon''ble Supreme Court in the case of Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and Others, AIR 2008 SC 1333 : (2008) 1 CLT 770 : (2008) 1 JT 371 : (2008) 149 PLR 22 : (2008) 1 SCALE 414 : (2008) 3 SCC 659 : (2008) AIRSCW 748 : (2008) 1 Supreme 348 . Therefore, she sought to allow the civil petition.

Per contra Sri Aravind D. Kulkarni, learned Counsel for the respondent contended that only on the behest of the petitioner the case cannot be transferred from Sandur to Bangalore. Admittedly, no allegations are made against the Presiding Officer of the Civil Judge (Jr. Dn.), Sandur. If the petitioners really seek they can very well invoke the provisions of Order 26 Rule 4 of Code of Civil Procedure to seek evidence and he also relied upon the dictum of the Supreme Court in the case of D.A.V. Boys Sr. Sec. School Vs. DAV College Managing Committee, (2010) 8 JT 266 : (2010) 43 PTC 625 : (2010) 8 SCC 401 : (2010) 8 SCR 952 and especially invited attention of the court at para 12 of the judgment. Therefore he sought for dismissal of the suit.

I have given my thoughtful consideration to the arguments advanced by the Counsel for the parties to the lis and perused the entire material on record.

It is not in dispute that the present respondent filed the suit for specific performance at Sandur to enforce the agreement said to have been executed by present appellant on 05.10.1992 and admittedly said proceedings not yet posted for trial. At this stage, present petition is filed to transfer the suit from Civil Judge (Jr. Dn.) at Sandur, to Civil Judge (Jr. Dn.), Bangalore, mainly on the ground that both petitioner as well as his power of attorney holder/wife, both aged about 77 and 71 respectively and they are not in good health and they have produced medical certificates issued by the competent authority to show that they are suffering from illness and depression and his wife also had problem of hip replacement surgery due to which she is unable to travel to Sandur, which is about 6 to 7 hours journey. The medical certificates produced by both petitioner and his PA Holder depicts that they are aged and they are in serious medical illness. It is also not in dispute that the very respondent filed O.S. No. 3512/2012 against the very petitioner before the City Civil Court, Bangalore and he is attending the case from the last two years. Therefore, the contention of the respondent that the only convenience of the petitioners cannot be looked into, is not accepted and while transferring the matter convenience of both parties has to be looked into.

Admittedly, the respondent-Company has filed OS. No. 3512/2012 against petitioners at Bangalore and therefore, in view of medical history of both petitioner and his wife as stated supra they have sought to transfer the present suit in O.S. No. 5/2011 pending on the file of the Civil Judge (Jr. Dn.) at Sandur, to Bangalore. It is also stated by learned Counsel for the respondent-Company that the company has no Branch at Bangalore. But it does not mean that, respondent is not prosecuting the suit filed against the petitioners in O.S. No. 3512/12. The Hon''ble Supreme Court while considering the provisions of Section 25 of the Code of Civil Procedure, with regard to transfer of suit in the case of Dr. Subramaniam Swamy Vs. Ramakrishna Hegde, AIR 1990 SC 113 : (1989) 4 JT 131 : (1989) 2 SCALE 860 : (1990) 1 SCC 4 : (1989) 1 SCR 469 Supp , held that

"8. .....The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one court has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the court and the defendant cannot demand that the suit be tried in any particular court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are not known where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. The Parliament has, therefore, invested this Court with the discretion to transfer the case from one court to another if that is considered expedient to meet the ends of justice. Words of wide amplitude-for the ends of justice have been advisedly used to leave the matter to the discretion of the apex court as it is not possible to conceive of all situations requiring or justifying the exercise of power. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner''s plea for the transfer of the case must be tested on this touchstone."

"10. ...We have already emphasised that the paramount consideration for transfer of the case under Section 25 of the Code must be the requirement of justice. If the ends of justice so demand, the case may be transferred under this provision notwithstanding the right of dominus litis to choose the forum and consideration of plaintiff''s convenience, etc., cannot eclipse the requirement of justice. Justice must be done at all costs, if necessary by the transfer of the case from one court to another."

The Apex Court in the case of Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and Others, AIR 2008 SC 1333 : (2008) 1 CLT 770 : (2008) 1 JT 371 : (2008) 149 PLR 22 : (2008) 1 SCALE 414 : (2008) 3 SCC 659 : (2008) AIRSCW 748 : (2008) 1 Supreme 348 , while considering the provisions of Section 24 and 25 of the Act has held as under:

"23. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by courts. They are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; "interest of justice" demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the court feels that the plaintiff or the defendant is not likely to have a "fair trial" in the court from which he seeks to transfer a case, it is not only the power, but the duty of the court to make such order."

The Hon''ble Supreme Court in the latest judgment in the case of D.A.V. Boys Sr. Sec. School Vs. DAV College Managing Committee, (2010) 8 JT 266 : (2010) 43 PTC 625 : (2010) 8 SCC 401 : (2010) 8 SCR 952 while considering the provisions of Section 24 and 25 has held:

"Section 25 of the Code itself makes it clear that if any application is made for transfer, after notice to the parties, if the Court is satisfied that an order of transfer is expedient for the ends of justice necessary direction may be issued for transfer of any suit, appeal or other proceedings from a High Court or other civil court in one State to another High Court or other civil court in any other State. In order to maintain fair trial, this Court can exercise this power and transfer the proceedings to an appropriate court. The mere convenience of the parties may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Further illustrations are, balance of convenience or inconvenience to the plaintiff or the defendant or witnesses and reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending. The above mentioned instances are only illustrative in nature. In the interest of justice and to adherence of fair trial, this Court exercises its discretion and orders transfer in a suit or appeal or other proceedings."

After considering the entire material on record, the admitted fact is that both petitioner and his wife are suffering from illness and they have produced medical certificates, which depicts that both are suffering from illness and they are not in a position to travel either by air or by road, and taking into consideration the fact that the respondent has also filed Civil Suit at Bangalore which is pending against the petitioner and the respondent and petitioner is attending the said case for the last two years, this Court is satisfied that an order of transfer is expedient, for the ends of justice it is necessary to transfer O.S. No. 5/2011 from the Court of Civil Judge (Jr. Dn.) at Sandur, Bellary, to Civil Judge (Jr. Dn.), Rural Court, Bangalore, for fair trial to meet the ends of justice.

Admittedly, the respondents have not produced any document before Court for opposing transfer of O.S. No. 5/2011 from Sandur to Bangalore will amount to denial of justice to respondents and balance of convenience lies in favour of the petitioner who was suffering from ailments and taking into consideration the entire facts and circumstances of the case, I am of the considered opinion that this is a fit case to exercise discretionary power under Section 24 of the Code of Civil Procedure. Therefore, the contention of the learned Counsel for the respondent that the petitioner can invoke the provisions of Order 26 Rule 4 of Code of Civil Procedure cannot be accepted and the said provision has no application to the facts and circumstances of the present case.

In view of the aforesaid reasons, it is appropriate in the interest of justice to allow the CP as prayed for. Accordingly, O.S. No. 5/2011 filed on the file of the Civil Judge (Jr. Dn.) is ordered to be transferred to Civil Judge (Jr. Dn.), Rural Court, Bangalore, for adjudication between the parties in the interest of justice.