[Cites 9, Cited by 0]
Gauhati High Court
Page No.# 1/8 vs Mononith Das on 10 February, 2026
Page No.# 1/8
GAHC010192562025
2026:GAU-AS:1790
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Tr.P.(C)./61/2025
SMTI MAMOLI DAS @ MAMLI DAS
D/O SRI ASHOK DAS, R/O WARD NO. 6, RABINDRA PALLY, RANGAPARA,
P.O. AND P.S.- RANGAPARA, DIST- SONITPUR, ASSAM-784505
VERSUS
MONONITH DAS
S/O SRI MANIKLAL DAS, R/O WARD NO. 4, HOWRAGHAT BAZAR, P.O. AND
P.S.- HOWRAGHAT, DIST- KARBI ANGLONG, ASSAM-782481
Advocate for the Petitioner : MR. A GANGULY, MR. A DHANUKA
Advocate for the Respondent : MR. B CHETRI, MS. D J BORAH
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
10.02.2026
Heard Mr. A. Ganguly, learned counsel for the petitioner and Mr. B. Chetri,
learned counsel for the respondent.
2. In this petition, under Section 24 of the Code of Civil Procedure, the
petitioner, who happens to be the wife of the respondent; has prayed for
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transferring the title suit, being T.S. (M) No. 13/2025, pending before the Court
of the learned District Judge, Karbi Anglong, Diphu, to the Court of the learned
District Judge, Sonitpur at Tezpur.
3. Mr. Ganguly, learned counsel for the petitioner submits that the petitioner
got married with the respondent on 31.01.2024 and thereafter, they started
their conjugal life at the matrimonial home, at Howraghat, Karbi Anglong. After
the marriage, marital discord surfaced between them and the petitioner was
forced to leave the matrimonial home on 01.07.2024 and since then, she has
been living in her parental abode at Rangapara, with her age old parents.
3.1 Mr. Ganguly also submits that on 18.12.2024, after nine months of her
marriage, the petitioner had received one legal notice from the counsel for the
respondent and thereafter, the T.S. (M) Case No. 13/2025 was filed by the
respondent for a decree of divorce, before the Court of the learned District
Judge, Karbi Anglong, Diphu, under Section 13(1)(ia) of the Hindu Marriage Act,
1955, as amended up-to-date.
3.2 Mr. Ganguly, further submits that the petitioner is presently living with her
parents at Rangapara, which is situated at a distance of about 225 kms from
Karbi Anglong, Diphu, and she has the burden of looking after her age old
parents as she has no brothers and her sisters already got married and that it
would be impossible on her part to undertake such a tedious journey alone,
from Rangapara to Karbi Anglong, by travelling a distance of about 450 kms
(both up and down). Further, he submits that the petitioner has also filed one
CR case, being CR Case No. 1320/2025, under the Domestic Violence Act, 1955,
which is presently pending before the Court of learned Chief Judicial Magistrate,
Tezpur and in the said case the respondent herein is entering appearance.
Under such circumstances, Mr. Ganguly submits that the T.S. (M) Case No.
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13/2025 may be transferred to the Court of the learned District Judge, Sonitpur
at Tezpur.
4. Per contra, Mr. Chetri, learned counsel for the respondent, has vehemently
opposed the petition. He submits that the petitioner had left the matrimonial
home at her own volition and that the respondent is living hand to mouth and is
dependent upon the income of his parents and it is not possible on his part to
contest the T.S. (M) Case No. 13/2025 at Tezpur and therefore, Mr. Chetri
submits that the T.S. (M) Case No. 13/2025 can be transferred to the Court of
learned District Judge at Nagaon, which would be convenient for both the
parties. Further Mr. Chetry submits that there is also possibility of reconciliation
between the parties.
5. Having heard the submissions of the learned counsel for both the parties, I
have carefully gone through the petition and the documents placed on record
and I have also gone through the relevant provision of law.
6. Section 24 of the C.P.C. provides for transfer of a suit. It reads as under:-
(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
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(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 an
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.
7. It the instant case, the applicable provision is 24(1)(ii) of CPC. Before a
discussion is directed into the issue, it would be in the interest of justice to
understand the principles, governing transfer of cases, presently occupying the
field.
8. In the case of Indian Overseas Bank vs. Chemical Construction
Company, reported in (1979) 4 SCC 358, while dealing with
considerations that has to be taken into account for transferring a case, the
Hon'ble Supreme Court has held as under :-
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"16. The principle governing the general power of transfer and
withdrawal under Section 24 of the Code is that the plaintiff is
the dominus litis and, as such, entitled to institute his suit in
any forum which the law allows him. The court should not lightly
change that forum and compel him to go to another court, with
consequent increase in inconvenience and expense of prosecuting
his suit. A mere balance of convenience in favour of proceedings
in another court, albeit a material consideration, may not always
be a sure criterion justifying transfer.
17. As compared with Section 24, the power of transfer of civil
proceeding to another court, conferred under the new Section 25
on the Supreme Court, is far wider. And, so is the amplitude of
the expression, "expedient in the interest of justice" which
furnishes a general guideline for the exercise of the power.
Whether it is expedient or desirable in the interest of justice
to transfer a proceeding to another court, is a question which
depends on the circumstances of the particular case."
9. There is, however, unanimity of opinion that 'balance of convenience'
is the prime consideration for transfer of a suit. The expression
"balance of convenience" has inspired profound legal thought and has
acquired the gloss of many judicial interpretations. Restated in simple terms, it
is a question of fact in each case. 'Balance of convenience' is neither the
convenience of the plaintiff alone nor of the defendant alone, but the balance of
convenience of both. In determining the balance of convenience for the trial of a
suit, the Court has to take into consideration the following:-
"(1) Convenience or inconvenience of the plaintiff and the right
of the plaintiff to choose his own forum;
(2) Convenience or inconvenience of the defendant;
(3) Convenience or inconvenience of the witnesses required for a
proper trial of the suit;
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(4) Convenience or inconvenience of the particular place of trial
having regard to the nature of the evidence on the main
points involved in the suit and also having regard to the
doctrine of 'forum convenience'; and
(5) Nature of issues in the suit." (Ref. Baburam Agarwalla vs.
Jamunadas Ramji And Co. reported in AIR 1951 Cal 239)
10. Again, in the case of Mrs. Maneka Sanjay Gandhi and Anr. vs. Ms.
Rani Jethmalani reported in (1979 (4) SCC 167), Hon'ble Supreme
Court has emphasized the necessity to ensure fair trial, observing as
hereunder:-
"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. We have to test the
petitioner's grounds on this touchstone bearing in mind the rule
that normally the complainant has the right to choose any court
having jurisdiction and the accused cannot dictate where the case
against him should be tried. Even so, the process of justice
should not harass the parties and from that angle the court may
weigh the circumstances.
11. Although, Mrs. Maneka Sanjay Gandhi (supra), relates to a criminal
case, yet the context is same i.e. transfer. Therefore, this court is of the view
that the principle enunciated therein can be applied in other cases also.
12. Thus, it appears that though the plaintiff is dominus litis, yet, the
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aforesaid right can be interfered with by the court on consideration of several
factors and out of the same 'balance of convenience' is the prime
consideration.
13. In the case in hand, it is not in dispute that the petitioner is presently
residing in her parental abode at Rangapara and the T.S. (M) Case No. 13/2025,
is instituted at Karbi Anglong, Diphu, by the respondent, which is situated at a
distance of about 225 kms. Being a lady and also having the burden of looking
after her age old parents, it would not be possible on her part to undertake a
journey of 450 kms, alone, in order to contest the case at Karbi Anglong, Diphu
on each and every date.
14. Indisputedly, one CR Case under the Domestic Violence Act, being CR Case
No. 1320/2025; is also pending in the Court of District Judge, Sonitpur at
Tezpur; wherein, the respondent in the present petition, is also contesting. And
as such it would not be inconvenient to him to contest the present proceeding
at Tezpur. This court has also considered the submission of Mr. Chetry, the
learned counsel for the respondent to transfer the case to the Courts at Nagaon,
which would be convenient for both the parties. But, in that event also, the
problem of engaging different sets of lawyers may arise. Further, reconciliation
can be effected, if the parties so wishes, even if the case is transferred to the
court at Tezpur, from Karbi-Anglong, Diphu.
15. Thus, having tested the grounds of the petitioner on the touchstone of the
propositions of law, so laid down in the case of Menaka Gandhi (supra), and
weighing the 'balance of convenience' against the dominus litis, we find
that the 'balance of convenience' of the petitioner has outweighed the
dominus litis of the respondent herein.
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16. Under the aforementioned facts and circumstances, this Court is of the
considered opinion that ends of justice would be meted out if the T.S. (M) Case
No. 13/2025, which is pending before the Court of the learned District Judge,
Karbi Anglong, Diphu; is transferred to the Court of the learned District Judge,
Sonitpur at Tezpur.
17. Accordingly, the Title Suit, being T.S. (M) Case No. 13/2025, stands
transferred to the Court of the learned District Judge, Sonitpur at Tezpur. The
learned District Judge, Karbi Anglong, Diphu, is directed to transmit the record
of T.S. (M) Case No. 13/2025 to the Court of the learned District Judge, Sonitpur
at Tezpur, forthwith; on production of a copy of this order by the petitioner.
18. In terms of the above, this petition stands disposed of.
JUDGE
Comparing Assistant
