Kerala High Court
Vidya P Pillai vs Jerin Raj on 6 June, 2024
Author: Anil K. Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
TR.APPEAL(C) NO. 9 OF 2024
AGAINST THE ORDER DATED 13.03.2024 IN Tr.P(C) NO.22 OF 2024 OF
HIGH COURT OF KERALA
APPELLANT(S)/1ST PETITIONER/RESPONDENT:
VIDYA P PILLAI
AGED 33 YEARS, D/O. PRASANNAKUMARAN PILLAI, RESIDING
AT ROHINI NIVAS, AYATHIL, ELAVANTHITTA MEZHUVELI
P.O., PATHANAMTHITTA, KERALA, PIN - 689507.
BY ADVS.
NOBEL RAJU
C.R.JAYAKUMAR
ALEENA JOSE
RESPONDENT(S)/RESPONDENT/2ND PETITIONER/PETITIONER:
1 JERIN RAJ
AGED 36 YEARS, S/O. JAYARAJAN, KALACHATTIL,
KONATHUKUNNU PO, PAINGODU, THEKKUMKARA,
MUKUNDAPURAM, TRISSUR 680123 REPRESENTED BY POWER OF
ATTORNEY HOLDER JAYARAJAN, AGED 64YRS, S/O.
SHANKARAN NAIR KALACHATTIL, KONATHUKUNNU PO,
PAINGODU, THEKKUMKARA, MUKUNDAPURAM, TRISSUR, PIN -
680123.
2 PRASANNAKUMARAN PILLAI
AGED 64 YEARS, APPUPUNNEL VEETTIL, EDANADU PO,
CHENGANNOOR, ALAPUZHA, RESIDING AT ROHINI NIVAS,
AYATHIL, ELAVANTHITTA MEZHUVELI PO, PATHANAMTHITTA,
KERALA, PIN - 689507.
THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION
ON 06.06.2024, ALONG WITH TR.APPEAL (C)NO.10 OF 2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Tr.Appeal (C)Nos.9 & 10 of 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
TR.APPEAL(C) NO. 10 OF 2024
AGAINST THE ORDER DATED 13.03.2024 IN Tr.P(C) NO.23 OF 2024 OF
HIGH COURT OF KERALA
APPELLANT/PETITIONER/1ST RESPONDENT:
VIDYA P PILLAI
AGED 33 YEARS, D/O. PRASANNAKUMARAN PILLAI, RESIDING
AT ROHINI NIVAS, AYATHIL, ELAVANTHITTA MEZHUVELI
P.O., PATHANAMTHITTA, KERALA, PIN - 689507.
BY ADVS.
NOBEL RAJU
C.R.JAYAKUMAR
ALEENA JOSE
RESPONDENTS/RESPONDENT/PETITIONER/2ND RESPONDENT:
1 JERIN RAJ
AGED 36 YEARS, S/O. JAYARAJAN, KALACHATTIL,
KONATHUKUNNU PO, PAINGODU, THEKKUMKARA,
MUKUNDAPURAM, TRISSUR 680123 REPRESENTED BY POWER OF
ATTORNEY HOLDER JAYARAJAN, AGED 64YRS, S/O.
SHANKARAN NAIR KALACHATTIL, KONATHUKUNNU PO,
PAINGODU, THEKKUMKARA, MUKUNDAPURAM, TRISSUR, PIN -
680123.
2 VEENA P PILLAI
AGED 31 YEARS, D/O. PRASANNAKUMARAN PILLAI, RESIDING
AT ROHINI NIVAS, AYATHIL, ELAVANTHITTA MEZHUVELI PO,
PATHANAMTHITTA, KERALA, PIN - 689507.
THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION
ON 06.06.2024, ALONG WITH TR. APPEAL (C)NO.9 OF 2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
Tr.Appeal (C)Nos.9 & 10 of 2024
JUDGMENT
Anil K. Narendran, J.
These appeals filed invoking the provisions under Section
5 of the Kerala High Court Act, 1958, arise out of the common
order dated 13.03.2024 of a learned Single Judge of this Court
in Tr.P.(C) Nos.22 of 2024 and 23 of 2024. The appellant,
along with his father, the 2nd respondent herein, filed those
transfer petitions invoking the provisions under Section 24 of
the Code of Civil Procedure, 1908 seeking an order to transfer
Original Petition Nos.956 of 2021 and 1254 of 2021, pending
before the Family Court, Irinjalakuda to the Family Court,
Pathanamthitta. Those Original Petitions are filed by the 1st
respondent herein-husband, for a declaration of the marriage
solemnised between the parties as null and void; and for
compensation. The appellant had earlier filed Tr.P.(C)Nos.229
of 2022 and 236 of 2022, seeking transfer of the aforesaid
Original Petitions from the Family Court, Irinjalakuda to the
Family Court, Pathanamthitta. The ground for transfer raised
in those Transfer Petitions is that she is represented by her
mother and Power of Attorney Holder, who is aged 58 years,
who finds it difficult to travel all the way and contest the
proceedings pending before the Family Court, Irinjalakuda.
Tr.Appeal (C)Nos.9 & 10 of 2024
Those Transfer Petitions ended in dismissal by the order dated
27.09.2022, on the ground that the transfer sought due to
inconvenience being caused to her Power of Attorney is not
sufficient to invoke the discretionary power under Section 24
of the Code. Thereafter, the appellant filed O.P.(HMA) No.30 of
2023 before the Family Court, Pathanamthitta, seeking decree
of divorce; and O.P.No.29 of 2023 before that court, seeking
patrimony. On the ground that the pendency of the Original
Petitions filed by the 1st respondent husband in Family Court,
Irinjalakuda, is causing inconvenience to her, who is working
as a Teacher in Oman, the appellant filed Tr.P.(C) Nos.22 of
2024 and 23 of 2024, wherein it is stated that she is available
in Kerala only twice in a year, i.e., 15 days during June-July
and another 15 days during December. She has also pointed
out the initiation of proceedings before the Family Court,
Irinjalakuda, as O.P.(HMA) No.30 of 2023 and O.P.No.29 of
2023. Those Transfer Petitions ended in dismissal by the
impugned order dated 13.03.2024, for the reasons stated
therein.
2. Heard the learned counsel for the appellant-
petitioner.
3. The issue that requires consideration in this appeal
Tr.Appeal (C)Nos.9 & 10 of 2024
is as to whether any interference is warranted on the
impugned order dated 13.03.2024 of the learned Single Judge,
whereby the request made by the appellant for transfer of
Original Petition Nos.956 of 2021 and 1254 of 2021, pending
before the Family Court, Irinjalakuda to the Family Court,
Pathanamthitta, stands rejected.
4. The reasoning of the learned Single Judge, as
contained in paragraph 4 of the impugned order reads thus;
"4. Having heard the learned counsel appearing for
the respective parties, this Court finds that the
transfers sought for cannot be allowed. There is no
change of circumstances from Annexure-A2 common
order, except that the present petitions are preferred
by the wife directly. It remains an undisputed fact
that, the petitioner/wife is still working as a teacher
in Salalah, Oman, and that she is available in Kerala
twice in an year, to be more precisely 15 days during
June-July and another 15 days during December. If
that be the position, the convenience of the
petitioner/wife in seeking transfer from Irinjalakuda
to Pathanamthitta is highly far-fetched, unrealistic
and not liable to be recognised. Learned counsel
would submit that the respondent is also working in
U.A.E., which, however, is not a fact having any
relevance in the context of the transfers sought for. If
the convenience of the petitioner/wife is discounted
as narrated above, there exists no ground for
Tr.Appeal (C)Nos.9 & 10 of 2024
allowing the transfers sought for. This Court is of the
opinion that, Original Petitions filed before courts
having natural jurisdiction cannot be lightly interfered
with and directed to be transferred, except for
genuine and valid grounds, which is lacking in the
instant facts."
5. Section 24 of the Code of Civil Procedure, 1908,
deals with general power of transfer and withdrawal and
Section 25 deals with the power of the Supreme Court to
transfer suits, etc.
6. In Indian Overseas Bank v. Chemical
Construction Co. [(1979) 4 SCC 358], the Apex Court held
that the principle governing the general power of transfer and
withdrawal under Section 24 of the Code of Civil Procedure is
that the court should not lightly change the forum and compel
the plaintiff to go to another court, with consequent increase in
inconvenience and expense of prosecuting the 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. As compared with Section 24,
the power of transfer of civil proceedings to another court,
conferred on the Apex Court under Section 25 is far wider and
so the amplitude of expression 'expedient in the interest of
Tr.Appeal (C)Nos.9 & 10 of 2024
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 the proceedings to another court is a
question, which depends on the circumstances of the particular
case.
7. In Kulwinder Kaur v. Kandi Friends Education
Trust [(2008) 3 SCC 659] the Apex Court held that, Section
24 of the Code of Civil Procedure empowers a High Court or a
District Court to transfer inter alia any suit, appeal or other
proceeding pending before it or in any court subordinate to it
to any other court for trial and disposal. The said provision
confers comprehensive power on the court to transfer suits,
appeals or other proceedings 'at any stage' either on an
application by any party or suo motu. Although the
discretionary power of transfer of cases cannot be imprisoned
within a straitjacket of any cast-iron formula unanimously
applicable to all situations, it cannot be gainsaid that the
power to transfer a case must be exercised with due care,
caution and circumspection. On a reading of 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.
Tr.Appeal (C)Nos.9 & 10 of 2024
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.
8. In Balan v. Sivagiri Sree Narayana Dharma
Sanghom Trust [2005 (4) KLT 865], a Full Bench of this
Court held that, when an application for transfer or withdrawal
of a suit from one court is made under Section 24 of the Code
of Civil Procedure, the court has to adjudicate that matter
regarding transfer or withdrawal after issuing notice to the
parties interested and after giving an opportunity of hearing.
An order passed after such an adjudication is certainly
appealable under Section 5(i) of the Kerala High Court Act,
1958. The Full Bench held further that, when an appeal is filed
under Section 5(i) of the Kerala High Court Act, 1958 against
the order passed under Section 24 of the Code of Civil
Tr.Appeal (C)Nos.9 & 10 of 2024
Procedure by a learned Single Judge, the Division Bench must
be reluctant to interfere in the matter unless it is manifestly
illegal and erroneous or carrying grave or substantial injustice.
9. As already noticed hereinbefore, the petitioner had
earlier approached this Court in Tr.P.(C)Nos.229 of 2022 and
236 of 2022 for transfer of O.P.Nos.1254 of 2021 and 956 of
2021, pending before the Family Court, Irinjalakuda to the
Family Court, Pathanamthitta. That petitions ended in
dismissal by Annexure A2 order dated 27.09.2022. It is
thereafter that, the petitioner instituted two Original Petitions,
i.e., O.P.(HMA) No.30 of 2023 and O.P.No.29 of 2023, before
the Family Court, Pathanamthitta and moved the Tr.P.(C)
Nos.22 of 2024 and 23 of 2024 before this Court, seeking
transfer of the pending matters from the Family Court,
Irinjalakuda to the Family Court, Pathanamthitta.
10. After Considering the arguments advanced, the
learned Single Judge, by the impugned order dated
13.03.2024, rejected the request for transfer on the ground
that the convenience of the appellant stated in the Transfer
Petition for seeking transfer is highly far-fetched, unrealistic
and not liable to be recognised. The reasoning of the learned
Single Judge in the impugned order cannot be said to be either
Tr.Appeal (C)Nos.9 & 10 of 2024
perverse or patently illegal, warranting interference, in view of
the limited scope of interference on such an order passed by
the learned Single Judge, as held by the Full Bench of this
Court in Balan v. Sivagiri Sree Narayana Dharma
Sanghom Trust [2005 (4) KLT 865].
In the result, these Transfer Appeals fail and they are
accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
HARISANKAR V. MENON, JUDGE
Skk//11//13.06.2024
