Jammu & Kashmir High Court

Tirath Ram And Others vs Seeta Devi on 25 February, 2022

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                                    Reserved on : 14.02.2022
                                                    Pronounced on: 25.02.2022

                                                             TrP (C) No. 14/2021
                                                )
                                                              CM No. 2854/2021

Tirath Ram and others                                .....Appellant(s)/Petitioner(s)


                        Through: Mr. J. P. Gandhi, Advocate.
                   Vs
Seeta Devi                                                      ..... Respondent(s)


                        Through: Mr. Bodh Raj Sharma, Advocate.

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                  JUDGEMENT

1. The petitioners, who are the defendants in the suit, titled, "Seeta Devi Vs

Tirath Ram and others" pending before the court of learned Munsiff,

Judicial Magistrate, Gool (hereinafter to be referred as the trial court) have

filed the present petition seeking transfer of the said suit from the court of

Munsiff, Judicial Magistrate, Gool to any other court of competent

jurisdiction at Ramban on the following grounds:

(i) That the petitioners are residents of village Famrote, Tehsil Gool,

District Ramban and in the year 1998 due to militancy, the

petitioners migrated from the said village. The respondent is the real

sister of the petitioners and as the petitioners are not having good

relations with the husband of the respondent, so he has got the said

suit for partition filed through his wife i.e. respondent herein, with

regard to the land measuring 27 Kanal 4 Marlas comprising Khasra

No. 162, situated at Village Nihar, Famrote, Tehsil Gool, District

Ramban. It is further stated that the distance between their

respective place of residence and the court, where the said suit is

sub-judice, is 180 kilometres. The petitioner Nos. 1,2 and 4 are

residing in village Gangi, Lander Panchari, Udhampur and from

Village Gangi Lander to reach the trial court, all the three

petitioners mentioned above have to travel on feet for 6 kilometres,

which take not less than two hours to reach Lander Panchari from

where the petitioner Nos. 1, 2 and 4 have to board a bus for

Udhampur and after reaching Udhampur, they have to take another

bus for going to Ramban and from Ramban another bus is required

to be changed to attend the proceedings before the learned trial

court and as such they have to travel a distance of 180 kilometres

for attending the proceedings before the trial court. Likewise,

petitioner No. 3 has to travel 5 kilometres on feet from his village

Duthan up to Pathan from where he has to take a bus to reach Gool.

The distance of Pathan to Gool is not less than 95 kilometres and it

takes not less than 4 hours to reach by bus from Pathan to Gool. It is

also stated that the respondent is residing at Sangaldhan and

distance between Gool and Sangaldhan is 20 kilometres and it takes

about 1 hour to reach the learned trial court. It is further stated if the

suit is transferred from Munsiff court Gool to any other court of

competent jurisdiction at Ramban, there will be no inconvenience as

the distance between Sangaldhan to Ramban is 40 kilometres and

the bus takes about 2 hours to reach from Sangaldhan to Ramban.

2. Response stands filed by the respondent in which it is stated that the

present application has been filed to pressurise and cause inconvenience

to the respondent by compelling her to travel from Gool to Ramban to

contest the case. It is further stated that the respondent being a lady and is

suffering from different ailments is not capable of travelling from Gool to

Ramban to contest the case and petitioners being aware of the said facts

have filed the present application to cause inconvenience to the

respondent. It is also stated in the response that the distance from

Panchari to Gandari is approximately 10 kilometres and the distance

mentioned by the petitioners in the petition is totally false and there is a

road from Sedu Nalah to Gool and the distance from Panchari to Sedu

Nalah is 10 minutes by foot. It is further stated that so far as petitioner

No. 3 is concerned, he has to travel no distance on foot at all as in the

village Duthan, motor car facilities are available. It is also stated that the

respondent is a poor lady having no source of income whereas all the

petitioners are well settled.

3. Mr. J. P. Gandhi, learned counsel appearing on behalf of petitioners

vehemently argued that for the purpose of securing ends of justice, the suit

is required to be transferred to court of competent jurisdiction at District

Ramban because it is very inconvenient for the petitioners to attend the

proceedings at Gool. Mr. Gandhi, placed much reliance upon the judgment

of Apex Court in Dr. Subramaniam Swamy vs Ram Ramkrishna

Hegde reported in 1990AIR (SC) 113.

4. Mr. Bodhraj Sharma, learned counsel appearing on behalf of respondents

submitted that the petitioners have wrongly mentioned the distance as they

have not mentioned in their petition about the alternative route that is also

available and further it is not possible for the respondent to attend the

proceedings all alone at Ramban.

5. Heard and perused the record.

6. The perusal of the response filed by the respondent reveals that the

respondent has given the different version of the distance between the

place where the court is located and the residences of the petitioner No:

1,2 and 4. The petitioner has not filed any rejoinder to the said assertion of

the petitioners. Be that as it may, the only ground on which the petitioners

are seeking transfer of the suit from Munsiff, Gool to a court of competent

jurisdiction at District Ramban is with regard to distance the petitioners

have to travel for attending the proceedings. In Indian Overseas Bank v.

Chemical Construction Co., (1979) 4 SCC 358 Apex Court has

observed as under:

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.

7. It needs to be noted that mere convenience of the parties or one of them

may be one of the criteria for transferring the suit from one court to

another but it can hardly be the sole factor for transferring the

proceedings. The respondent is a lady and her contention, taking in to

consideration her rural background that it is not possible for her to travel

alone, cannot be brushed aside. The petitioners are four in number,

proceedings being civil in nature and further all the petitioners are not

required to attend the proceedings before the trial court on a particular day

and as such they can devise mechanism amongst themselves for attending

the proceedings at Gool. On the contrary, the respondent is a lady residing

at Village Sangaldhan and she too has to travel a certain distance to attend

the proceedings at the court and it would certainly be inconvenient for her