1. Heard Sri. Arvind Kumar Singh n, learned counsel for the applicant, Sri. Kul Bhushan, Advocate, holding brief of Sri. Krishna Gopal, learned counsel for opposite party and perused the record.
2. This is an application filed by applicant-wife under Section 24 C.P.C, seeking transfer of Petition No. 735 of 2013 (Dharmendra Pratap Singh Rathore v. Smt. Nisha), pending before Family Court, Bareilly to Etah on the ground that there is no one in her family to escort her to Bareilly to do pairvi of the case, having two years old daughter and also having financial constraints. It is also pleaded that no maintenance has been provided to the applicant and she has no otherwise means to meet the expenses. Learned counsel for opposite party vehemently opposed the application and stated that there is no reason for transfer of the case to Etah.
3. The power of transfer of a case from one Court to another under Section 24 C.P.C is very wide. However, while exercising such power, the Court itself must look into the ground taken for justifying transfer and should consider the matter within permissible limitations so as not to exercise power on mere asking by applicant.
4. The plaintiff as obiter litis or dominus litis, has a right to chose any forum, the law allows him. It is a substantive right but of course subject to control by statute like Sections 22 to 23 of C.P.C
5. The mere factum of expenses or difficulties should not justify transfer of a case from one Court to another, unless Court finds that expenses and difficulties in the Court, where it is pending, is so great as to lead injustice to applicant, or, the suit has been filed in a particular Court for the purpose of working injustice. (R. Sadayandi Nadar v. Venugopala Cherry, AIR 1960 Ker 91; Satyasri Fertilisers v. E.I.D Parry (India) Ltd., AIR 2003 AP 312; and, The Hindustan Assurance and Mutual Benefit Society Ltd. v. Rail Mulraj, 1914 (27) MLJ 645).
6. It is always necessary to the Court to find out from the allegations made in transfer application, whether any reasonable ground is made out for transfer of the case. (Smt. Sudha Sharma v. Ram Naresh Jaiswal, AIR 1990 MP 320)
7. Transfer of cases from one Court to another is a serious matter particularly when transfer is sought by making allegations against Presiding Officer. It sometimes indirecdy cause doubt on the integrity and competence of Presiding Officer of the Court from whom the matter is transferred. In cases where ground for transfer is likelihood of bias of Presiding Officer, it is onerous duty of Court to see, whether such ground has been substantiated with reasonable certainty or not. It should not be done without a proper and sufficient cause. In Tula Ram v. Harjiwan Das, (1882) BLR 5 All 60 it was held that the Court has to consider whemer applicant has made out a case to justify it, closing doors of the Court in which suit is brought to plaintiff, and leaving him to seek his remedy in another jurisdiction.
8. In Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) Cri.L.J 458 (SC) the Court said:
Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more compelling, more imperiling from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case.
(Emphasis added)
9. Again in the context of power of Su preme Court with regard to transfer of cases under Section 25 C.P.C in Dr. Subramaniam Swamy v. Ramakrishna Hegde ., (1990) 1 SCC 4 : (AIR 1990 SC 113), the Court said:
“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 unknown 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.
(Emphasis supplied)
10. The age of wife and distance between place of residence and place where matrimo nial proceedings were filed, as well as absence of people who would escort her, are some of the grounds considered reasonable justification, for directing transfer of case, to a place more suitable to her. In Kulwinder Kaur alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust, (2008) 3 SCC 659 : AIR 2008 SC 1333 the Court said that order of transfer must reflect application of mind and the circum stances which weighed the Court in taking action or transfer of case from one Court to another.
11. In Kulwinder Kaur alias Kulwinder Gurcharan Singh ((2008) 3 SCC 659 : AIR 2008 SC 1333) (supra), the Court said:
“14. Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unani mously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of the Code together and keeping in view vari ous 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 plaintiff or defendant or wit nesses; 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; reason able 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; in terest 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.”
12. In the matrimonial matters the conve nience of wife and in particular that she has no one in her family to escort her to undertake a long journey has been held to be good ground for transfer of case as is also evident from Apex Court's decision in Anjali Ashok Sadhwani v. Ashok Kishinchand Sadhwani, (2009) 16 SCC 188 : AIR 2009 SC 1374 and Fatema v. Jafri Syed Husain alias Syed Parvez Jafferi, (2009) 13 SCC 352 : AIR 2009 SC 1773.
13. One of the common ground which generally is taken is of distrust in Presiding Officer of the Court. Here the Courts have to be very careful while passing the orders for transfer of case.
14. Where two persons filed suit against each other in different Courts on the same cause of action, it was held desirable that suits should be tried by one and the same Court. (G.M Rajulu v. Rao Bahadur M. Govindan Nair, (1938) 2 MLJ 249; Mt. Zabida Khatoon v. Mohammad Hayat Khan, AIR 1933 Lahore 635; and Smt. Manjari Sen…Petitioner v. Nirupam Sen…, AIR 1975 Delhi 42).
15. Similarly, if two suits in different Courts are filed raising common questions of fact and law, and the decisions are independent, it is desirable that they should be tried by same Judge so as to avoid multiplicity of litigation and conflict in decision. (Purna Chandra Mahanty v. Samanta Radhaprasana Das, AIR 1953 Orissa 46).
16. If the fact of suits sought to be tried together are intertwined with cause of action in each suit, transfer of suit may not be refused provided the parties and subject matter of suits are one and the same. (Rosamma Joseph v. P.C Sebastian, AIR 1996 Kerala 113)
17. An order of transfer can also be made to prevent abuse of process of Court as said in State Bank, of India v. Sakow Industries Faridabad (Pvt.) Ltd., New Delhi, AIR 1976 P & H 321.
18. In Amardeep v. District Judge, Lalitpur, 2007 (3) AWC 3119 : (2007 AIHC 2200 (All)) the applicant put forward his claim on the basis of a Will before Civil Judge (Senior Division). The re spondent filed a sult before Civil Judge (Jun ior Division) for cancellation of Will. It was held that claims of both parties were based on execution and non-execution of alleged Will, therefore it would be in the interest of justice that both cases must be decided in the same Court. The expression “same Court” does not mean same Judge, rather it means the same Civil Court and as such the order of transferring proceeding from the Court of Civil Judge (Junior Division) to the Court of Civil Judge (Senior Division) was held proper.
19. Sometimes transfer of suit has also been justified on the ground of convenience to the parties or witnesses etc. but in such cases the paramount factor which should be considered is the convenience of both parties. An exception, however, to some extent, has been made in matrimonial cases where convenience of wife has been given a dominating factor than husband, particularly when she has none to escort her or of quite young age or where she has financial constraints etc.
20. In Satyasri Fertilisers v. E.I.D Parry (India) Ltd., AIR 2003 AP 312 the transfer of case was declined which was sought only on the ground that the applicant is a diabetic patient.
21. The observations made above are only illustrative to show that Court, though has wide power of transfer under Section 24 C.P.C but it must be exercised for valid reasons and not in whimsical and arbitrary manner.
22. Convenience of wife to pursue the proceedings is a relevant factor, if pleaded bona fide for justifying transfer of a matter to the place where it is convenient to the wife. In the present case it is not in dispute that applicant is residing at Etah having no source of income, having two years daughter and there is no one in her family to escort her to Bareilly. In the facts and circumstances of the case, in my view, in the interest of justice, the transfer application ought to have been allowed. In view of aforesaid, the application is allowed. Let record of petition No. 735 of 2013 be transferred from Family. Court, Bareilly to Etah Judgeship. The Court at Bareilly shall ensure immediate transmission of record to Etah Judgeship.
23. Application allowed.