Calcutta High Court (Appellete Side)
Sumitra Rana & Ors vs Srimatya Biva Rana & Ors on 9 February, 2023
S/L 147
09.02.2023
Court No.652
SD
CO 2283 of 2021
Sumitra Rana & Ors.
Vs.
Srimatya Biva Rana & Ors.
Mr. Malay Bhattacharyya
Mr. S. Ghosh
... for the Petitioners.
Mr. Nilanjan Bhattacharjee
Mr. Abhilash Chatterjee
Mr. Saikat Dey
... for the Opposite Parties.
This is an application under Section 24 of the Code of
Civil Procedure at the instance of the petitioners seeking
transfer of Title Suit No.418 of 2021 along with all connected
applications from the Court of learned Civil Judge (Senior
Division), 3rd Court, Midnapore to any competent Court at
Bishnupur, Bankura.
The petitioners contended that the petitioner no.1 was
married to one Ashit Rana and they are blessed with two
children who are minor. Unfortunately, on May 30, 2019
her husband died leaving behind herself and the two
children as legal heirs. Petitioners submit that after the
death of said Ashit Rana, the opposite parties, all of a sudden
filed the aforesaid suit for partition in the court at
Midnapore.
The petitioners further contended that from the
schedule of the suit property to the plaint it appears that
majority of the properties situate within the jurisdiction of
Bishnupur Court. The petitioners further submit that the
petitioner no.1 is alone and she has to take care of her two
school going child. She is a helpless lady and in order to
maintain her family, she has to run a battery shop at her
house.
Petitioners further submit that the opposite party
no.1/plaintiff no.1 and opposite party no.4/plaintiff no.4 are
permanent resident of Bishnupur which is reflected from the
cause title of the plaint. She further submits that it is
problematic for the petitioner to attend the said proceeding
at Paschim Midnapore along with her minor children. In
order to reach the court at Midnapore, the petitioner has to
travel from her house to Bishnupur bus stand and therefrom
she has to catch bus for Midnapore which takes 1½ hour and
after reaching Midnapore bus stand, she has to reach
Midnapore court by local transportation. Considering the
aforesaid inconveniences faced by the petitioner no.1, she
has sought for aforesaid transfer.
Learned counsel appearing on behalf of the opposite
parties raised objection against aforesaid prayer contending
that the plaintiff no.1/petitioner no.1 is an aged lady and
from the averment of the plaint, it would appear that
immediate after the death of said Ashit Rana, defendant no.1
along with her minor children left her matrimonial home
and started severe oppressing behaviour upon plaintiff no.1
and 4 by her henchmen and in consequence, the plaintiff
no.1 compelled to take shelter at the house of plaintiff no.2 at
the Midnapore town and presently she is residing therein.
He further contended that the matter is so grave that
the plaintiffs are very much afraid to stay at Bishnupur and
as such, if the aforesaid prayer for transfer is allowed, it
would be prejudicial for their interest. He further submits
that the quantum of land is not a determining factor for
ascertainment of court's jurisdiction. Admittedly, the suit
property situates within the jurisdiction of both Midnapore
Court as well as within the jurisdiction of Bishnupur Court.
Accordingly, he has prayed for dismissal of the aforesaid
application.
Considered submissions made by both the parties.
In Kulwinder Kaur vs. Kandi Friends
Education Trust & Ors. reported in (2008) 3 SCC 659,
Apex Court has reiterated certain broad proposition as to
what may constitute a ground for transfer in paragraph 23 of
the judgment which runs as follow:-
"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."
On perusal of the schedule of plaint, it appears that
the permanent address of plaintiff no.1 as well as plaintiff
no.4 is at Bishnupur. On the contrary, as submitted by the
petitioner no.1 she is presently earning her livelihood from a
battery shop at her house at Bishnupur and furthermore she
has to look after two minor children.
As plaintiff no.4 admittedly resides at Bishnupur, on
behalf of all the plaintiffs he can very well continue to
proceed with the said partition suit in the event such prayer
for transfer is allowed but in the event prayer for transfer is
disallowed, the inconveniences likely to be faced by a woman
going to another place for pursuing a suit for partition would
be much more than the inconveniences that are likely to be
faced by the plaintiff nos.2, 3 residing at Midnapore.
In view of the above, considering the balance of
convenience and inconvenience to the parties, issues raised
by the parties and that the plaintiff no.4 on behalf of all the
plaintiffs can very well proceed with the suit in the event
other plaintiffs failed to attend Bishnupur Court and that the
petitioner is bringing up two minor children and engaged
herself in a shop at her house at Bishnupur, the prayer made
by the petitioner is allowed.
Accordingly, learned District Judge, Paschim
Midnapore is hereby directed to withdraw the Title Suit
No.418 of 2021 from the Court of learned Civil Judge (Senior
Division), 3rd Court, Midnapore and to transmit the case
record to the Court of learned District Judge, Bankura within
a period of three weeks from the date of communication of
the order, who in turn will transfer the same to the Court of
learned Civil Judge, Bishnupur having jurisdiction to try the
suit.
The transferee court shall give fresh notice intimating
the next date of hearing upon both the parties before taking
up further proceeding of the suit and the transferee court
shall proceed with the suit at the stage where it reached till
date.
The transferee court is requested to make every
endeavour for expeditious disposal of the suit and to
conclude the entire proceeding preferably within a period of
one year from the date of communication of the order.
Department is directed to send a copy of this order to
the learned District Judge, Paschim Midnapore as well as the
learned District Judge, Bankura.
With these observations, C.O. 2283 of 2021 is
disposed of.
There will be no order as to costs.
Urgent photostat certified copy of this order, if
applied for, be given to the parties upon compliance of all
necessary formalities.
(Ajoy Kumar Mukherjee, J.)
