Madras High Court
Manashwini Balasundaram vs Ashwinkumar Baburaj on 29 October, 2024
Tr.CMP.No.1010 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.10.2024
CORAM
THE HONOURABLE MR. JUSTICE V.LAKSHMINARAYANAN
Tr.CMP.No.1010 of 2024
and
C.M.P. No.22125 of 2024
Manashwini Balasundaram ... Petitioner
Vs.
Ashwinkumar Baburaj ... Respondent
PRAYER: Transfer Petition filed under Section 24 of the Code of Civil
Procedure to withdraw GWOP.No.355 of 2024 on the file of this Court and
transfer the same to the Family Court at Coimbatore and try along with
HMOP.No.1937 of 2023.
For Petitioner : Mr.Thenmozhi R.
For Respondent : Ms.Geetha Ramasesham
ORDER
This transfer petition presents a situation which is extremely unique. The issue
being whether this Court has the jurisdiction, under Section 24 of the Code of Civil
Procedure, 1908 to transfer a proceeding pending before it, to a Court subordinate to
it.
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Facts leading to Transfer
2. The petitioner is the wife and the husband is the respondent. They
solemnized their marriage on 11.03.2016. They shifted their residence to the United
States of America and thereafter, they returned to this country. Though the petitioner
and the respondent have exchanged allegations as regards the reason for their return to
this country, I am not dwelling into the same as it is not germane for the purpose of
this case. On their return to India, the petitioner became pregnant and delivered twins
on 21.08.2020. Subsequently, the couple developed disputes and differences, and
separated. The wife is now residing in Coimbatore and the husband is residing in
Chennai.
3. Due to such disputes, the wife decided to put an end to the matrimony and
filed a petition for dissolution of marriage in HMOP.No.1937 of 2023 before the
Family Court at Coimbatore. Notice was issued to the husband. He was served with
summons and in fact, attended a few hearings at Coimbatore. Thereafter, he initiated
GWOP.No.355 of 2024, seeking for custody of the children, before the original side
of this Court.
4. The wife pleads that on account of the case pending in Chennai, she has to
travel regularly from Coimbatore to Chennai and it is imposing an unreasonable
burden on her. She further pleads that she is the primary care giver for the children
and also responsible for their daily activities including their school and health care.
She points out the distance between Coimbatore and Chennai is about 507 kms and
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this puts an enormous physical strain on her. There is no dispute between the parties
that the children who are aged about 4 years are studying in Coimbatore. On these
grounds, the petitioner has moved the present transfer petition. Fortunately both the
parties are financially well off and therefore, the issue of financial distress does not
arise.
5. When the matter came up for hearing on 30.09.2024, I requested
Ms.Thenmozhi R to serve the entire set of papers on Ms.Geetha Ramaseshan, the
learned counsel who represents the respondent/husband in the proceedings on the
original side. I posted the matter on 04.10.2024. On the date of hearing, Ms.Geetha
Ramaseshan appeared and sought time to file counter. I granted time and the
pleadings were completed by the respondent on 22.10.2024.
6. Ms.Thenmozhi R argues that this Court is possessed of the jurisdiction to
transfer proceedings pending before it to a subordinate court of competent
jurisdiction. She refers to Section 24 of the Code of Civil Procedure. On facts, she
pleads the court has to consider the convenience of the parties. As the wife and child
are in Coimbatore, she urges the GWOP may be transferred to Coimbatore.
7. Ms.Geetha Ramaseshan argues that a petition under Section 24 of the Code
of Civil Procedure is not maintainable. According to her, an application should have
been filed only on the Original Side of this Court and not on the appellate side
invoking Section 24. On the merits of the case, she points out that as video
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conferencing facility permits the appearance of the wife before this Court, from
wherever she is residing, the claim of the petitioner that she has to come to Chennai is
untenable. Without prejudice to aforesaid submission, she argues that there has to be
extraordinary circumstances to transfer a case from this Court to a subordinate court
and the present case does not reflect such extraordinary circumstances.
8. I have heard Ms.Thenmozhi R and Ms.Geetha Ramaseshan for the
respective parties and have gone through the records.
9. Normally a transfer petition is presented before this Court seeks for transfer
from one Court subordinate to this Court to another Court subordinate to it. To my
knowledge, for the first time, a case has arisen, where a party seeks to withdraw a
proceeding pending on the original side of this Court and send it to a court
subordinate to this court in exercise of the power under Section 24 of the Code of
Civil Procedure.
History on Power of Transfer
10. Even before the issuance of the Letters Patent, 1862, the power to transfer
was given to the High Court under Section 15 of the Indian High Courts Act of 1861.
It read as follows:
“15. Each of the High Courts established under this Act
shall have Superintendence over all Courts which may be
subject to its appellate Jurisdiction, and shall have Power to
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call for Returns, and to direct the Transfer of any Suit or
Appeal from any such Court to any other Court of equal or
superior Jurisdiction, and shall have Power to make and issue
General Rules for regulating the Practice and Proceedings of
such Courts, and also to prescribe Forms for every Proceeding
in the said Courts for which it shall think necessary that a
Form be provided, and also for keeping all Books, Entries, and
Accounts to be kept by the Officers, and also to settle Tables of
Fees to be allowed to the Sheriff, Attorneys, and all Clerks and
Officers of Courts, and from Time to Time to alter any such
Rule or Form or Table; and the Rules so made, and the Forms
so framed, and the Tables so settled shall be used and observed
in the said Courts, provided that such General Rules and
Forms and Tables be not inconsistent with the Provisions of
any Law in force, and shall before they are issued have
received the Sanction, in the Presidency of Fort William, of the
Governor General in Council, and in Madras or Bombay of the
Governor in Council of the respective Presidencies.”
11. Pursuant to this legislation empowering the British sovereign to issue a
Charter, Queen Victoria issued Letters Patent of 1862. Under the Letters Patent, the
power to transfer proceedings to itself was vested with the High Court. This is by
virtue of clause 13 of Letters Patent. The said clause reads as hereunder:
“ 13.And We do further ordain that the said High Court
of Judicature at Madras shall have power to remove, and to
try and determine, as a Court of extraordinary original
jurisdiction, any suit being or falling within the jurisdiction of
any Court, whether within or without the Presidency of
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Madras, subject to its superintendence, when the said High
Court shall think proper to do so, either on the agreement of
the parties to that effect, or for purposes of justice, the reasons
for so doing being recorded on the proceedings of the said
High Court.”
12. Subsequently, the colonial legislature enacted the Code of Civil Procedure
of 1882. The power of transfer was vested with the High Court. This is found under
Section 25 of 1882 Code. Finally the present Code of Civil Procedure of 1908 was
enacted. It come into force on the first day of January 1909 and has been in existence
eversince. Under this code, the power to transfer is found under Sections 22 to 25.
The general power of transfer is found under Section 24 which reads as follows:
“24.General power of transfer and withdrawal
(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
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the same; or
(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 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.”
13. Apart from these statutory powers available with this Court, this court in
exercise of Article 227 of the Constitution of India always has the power of transfer of
proceedings, when the facts and circumstances and the situation so required. See,
Service Bar Association v. Union of India, (2005) 1 CTC 321 (DB). However, a
petition under Article 227 of Constitution of India cannot be utilised for the purpose
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of transferring a proceeding from the original side of this court to the subordinate
court. This is because the original side of the High Court is a part of the High Court
and it is not subordinate to the appellate side. A mere reading of Article 227 shows
that the power of transfer can be utilised only if the courts or tribunal are subordinate
to this court.
14. There are two other legislations, which I have to take note of. They are the
Tamil Nadu Civil Courts Act, 1873 and the Chennai City Civil Courts Act, 1892.
Under Section 16 of the Chennai City Civil Courts Act, 1892, this Court has the
power under 16(2) to transfer a proceeding pending before it, at any stage, to the file
of the City Civil Court, if the Judge sitting on the original side comes to a conclusion
that the suit or proceeding ought to have been instituted before the City Civil Court
and tried by that Court.
15. The other provision is Section 13 of the City Civil Courts Act, 1873. This
enables the High Court to receive appeals, which ought to have been filed before the
District Court or the Subordinate Court, when the said courts are closed, on account of
vacations, in terms of Section 30 of the Tamil Nadu City Civil Courts Act. This
provision deals only with appeals and not with original proceedings. The practice of
this Court is that when the appeals are so received, they are heard and interim orders
are granted and thereafter, sent to the Court to which the appeals ought to have been
filed, on them reopening post vacation. Such appeals has been termed, in practice, as
“receive and transmit” appeals.
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16. The idea for incorporation of Section 13 of the Tamil Civil Courts Act
1873 is to give a forum for redressal to a litigant, at the time, when the subordinate
courts are closed, due to vacations under Section 30 of the said Act.
17. An analysis of all these provisions including the rules of the original side of
the High Court shows that the only provision available to move an application for
transfer of a suit pending on the file of this court to any other court competent to trial
is Section 24 of the Code of Civil Procedure. I will discuss this provision later.
Should the application for transfer made on the Original Side?
18. I will now take up the argument of Ms.Geetha Ramaseshan that an
application for transfer of a proceeding on the original side should be made only on
the Original side of this Court. A mere glance at the provision of Clause 13 of the
Letters Patent shows that the High Court under that Clause, in the exercise of its
extraordinary original jurisdiction, has the power to withdraw any suit within the
jurisdiction of any court subject to the High Court's superintendence to the High
Court. This provision does not enable the Court to transfer a proceeding pending on
its file to the file of the court subordinate to it.
19. The interpretation, which Ms.Geetha Ramaseshan seeks to give on clause
13, seems to have been taken by Justice Vepa Ramesam in Jumna Bai v.
Ramanathan Chettiyar, (1928) 28 LW 684 = (1928) 55 MLJ 690 = AIR 1929 MAD
29. The learned Judge was of the opinion that an application for transfer should have
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been made to the High Court on its original side. The said position was cited before a
bench consisting of by Mockett and Kuppuswami Aiyer, JJ. The learned Judges felt
that as it raised an important point of practice, the matter should be referred to a Full
Bench. The proceedings were thereafter placed before the Full Bench consisting of
Leach CJ, Wadsworth and Patanjali Sastri, JJ. The verdict is reported in
V.S.A.Krishna Mudaliar vs V.S.A.Sabapathy Mudaliar, 58 LW 7.
20. The Full Bench took a view that the power under Clause 13 of the Letters
Patent enables the court to remove the case from the court subordinate to this court for
trial before this court and for its determination. It held that Section 24 of the Code of
Civil Procedure enables this court to transfer a proceeding to itself and thereafter, re-
transfer it to a court subordinate to the High Court. Hence, the view of the Full Bench
puts an end to the submissions raised by Ms.Geetha Ramasesham.
21. In addition, it is beyond the cavil that the proceedings under Section 24 of
the Code of Civil Procedure are original proceedings. This view had been taken by
this Court as early as in 1948 in Alla Subbareddi v. Labbireddi Narayanaswamy
Reddi, (1948) 61 LW 596 = AIR 1949 MAD 283. It is one thing to say that a
proceeding is “original” in nature and totally different to hold, the proceedings have to
be initiated on the original side.
Does Section 24 empower the Court to transfer proceedings
pending before it?
22. Section 24, which has been extracted above, says by virtue of Section
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24(1)(a), any suit, appeal or proceedings pending before it for trial or disposal, may
be transferred, to any court subordinate to it and competent to try and dispose of the
same. When the provision of law is clear, it is the duty of the court to apply the
provision as its stands. The underlined portion shows that Section 24 empowers this
court to transfer any proceedings (including suits or appeals) pending before it to a
court subordinate to it. The only condition being that the court to which it is
transferred to should be competent to deal with it. In addition, under Section 24(2),
this Court and the District Court are not only empowered, to direct the transferee court
to continue with the proceedings at the stage from which it was transferred from the
transferor or to conduct de-novo trial, but are empowered also to issue special
directions as the case may require at the time of such transfer.
23. I am alive to the view taken by the Bombay High Court in Anand Issardas
Motiani v. Virji Raisi, 1983 SCC OnLine Bom 126, the observations made by the
bench in paragraph 13 of the said judgment has to be read in the context of that case.
If the view of the Division Bench, the word “ special” found under section 24(2)
should be confined only to directing the Trial Court for de-novo trial or continuing the
proceedings as it stood before the transfer, then I am not inclined to adopt the said
reasoning. This is because to the word “special”, a restrictive meaning cannot be
given to the said clause. In fact the Supreme Court in Rajni Kumar v. Suresh Kumar
Malhotra, (2003) 5 SCC 315, held that the term “special circumstances” should not
be enumerated as it is neither practical nor advisable.
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Ratio in Srirangam Municipality v. R.V.Palaniswamy Pillai
24. I came across only one judgment that gives an indication on the power of
this Court under Section 24. It is Srirangam Municipality v. R.V.Palaniswamy Pillai,
AIR 1951 MAD 807. The issue whether the High Court has the power under Section
24 to withdraw the proceedings pending before a Trial Court and hear the matter and
dispose of the Interlocutory applications and send the proceedings back to the original
court was the subject matter of interpretation in that case.
25. A brief discussion on the facts of this case is essential. Notice was issued
by Srirangam Municipality to one Palaniswami Pillai calling upon him to deliver the
vacant possession of an extent of 30 cents of land under his possession. Disputing the
notice, R.V.Palaniswami Pillai presented a suit in O.S.No.250 of 1948 on the file of
the District Munsif Court at Trichirapalli. He sought for a declaration of title and for
injunction. Along with the suit, he moved an application for interim injunction
seeking to restrain Srirangam Municipality from interfering with his possession. The
learned District Munsif ordered notice in the said application and posted the matter
after the summer vacation.
26. After receipt of notice in the injunction application, the Commissioner of
Srirangam Municipality entered possession into the disputed property. He removed
the fence that had been put up by the plaintiff, and cut and removed the trees thereon.
Since the learned District Munsif Court was closed for vacation, the plaintiff-
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Palaniswami Pillai moved two applications before this Court seeking for transfer of
the suit to this court and to re-transfer the same after granting him necessary reliefs.
He also sought for an order of mandatory injunction directing the Srirangam
Municipality to restore the status quo ante.
27. The applications came up before Justice Satyanarayana Rao, who heard the
parties to the dispute. Interestingly, it was the very same Judge who delivered the
judgment in Alla Subbareddi's case. He ordered transfer of the suit to the file of this
Court and after hearing both sides granted interim mandatory injunction as sought for
and thereafter, re-transferred the suit to the file of the learned District Munsif Court at
Trichirapalli.
28. Aggrieved over the order of mandatory injunction, an appeal was preferred
to a Division Bench of this Court invoking Clause 15 of the Letters Patent. The matter
was heard by Hon'ble The Chief Justice Mr.P.V.Rajamanttar and A.V.Viswanatha
Sastri, J. Pre-eminent counsels of this Court had argued the matter before the Division
Bench.
29. The bench held that, in terms of the Appellate Side Rules, an application
under Section 24 has to be heard by a Judge sitting in the “admission” court, who has
been authorised by the Chief Justice to deal with the said applications. It held under
Section 24 of the Code of Civil Procedure, there is power available to this court to
transfer a suit pending before the Trial Court to itself and grant an interim order and
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re-transfer the same to the original court. The bench rejected the argument that of
Mr.V.V.Srinivasa Ayyangar that the application should have been made on the
original side. After a detailed discussion, the learned Judges came to a conclusion that
the appeal deserves an order of dismissal and accordingly dismissed it.
30. I am referring to this judgment for the following purposes:
(i) The High Court has the power not only to transfer the proceedings from one
court to the other court subordinate to it, but also withdraw a suit from a subordinate
court to itself. It also possess the jurisdiction to re-transfer such a transferred suit or
proceeding to the court from which it was withdrawn or to any other Court.
(ii) It is not necessary that the application should be filed on the original side of
this Court. It can be heard and decided by the learned Judge, who has been authorised
by Hon'ble the Chief Justice to deal with applications filed under Section 24 of the
Code of Civil Procedure.
(iii) If the learned Judge, who hears the application, is of the opinion that the
suit need not be retained on the file of this Court, he has the power to re-transfer the
proceedings to the Court before which it was originally presented.
(iv) Prior to such re-transfer, a Judge on withdrawal can also pass such orders
as the circumstances so warrant.
31. The ratio that flows out of this judgment is that under Section 24, this Court
has the power to:-
(i) transfer proceedings from a subordinate to itself;
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(ii) on such transfer, pass appropriate order in the suit; and
(iii) transfer suits pending before it to the court of original jurisdiction or such,
other court as it deems fit.
32. It flows from the ratio that proceedings pending on the original side can
also be sent to courts of competent jurisdiction subordinate to this court. This is
because once the suit is withdrawn to this Court, while dealing with the said
proceeding, on such transfer, this court exercise its original jurisdiction over the
proceedings. The ratio that this court can re-transfer the proceeding thereafter to the
court which was originally filed implies that under Section 24, this Court has the
power to withdraw the proceedings pending before it and transfer the same to the
court of competent jurisdiction. None of the statutory provisions referred to
previously, save Section 24 of the Code of Civil Procedure empowers the court to
transfer such proceeding. It is specifically granted under Section 24(1)(a) of the Code
of Civil Procedure, 1908.
33. On the basis of the aforesaid discussion, I have to come to a conclusion that
by virtue of the powers vested in this Court under Section 24(1)(a) of the Code of
Civil Procedure; a suit, appeal or other proceeding that is pending before this Court
can be withdrawn and transferred to a competent court subordinate to this Court.
34. It is here that I have to take note of the view of a Special Bench of this
Court in S.Annapoorni K. Vijay, 2022 SCC Online Mad 4367. The Special Bench
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was called upon to answer whether the jurisdiction of the High Court on the original
side over the matters of child custody and guardianship is ousted on account of
Sections 7(1) , 8 and 20 of the Family Courts Act of 1984. An exhaustive discussion
was undertaken by the bench and it concluded, by majority, that the jurisdiction of the
High Court is not excluded. The view of the Special Bench was that the statutory
jurisdiction under the Guardianship and Wards Act of 1890 vests with the Family
Court in areas where Family Court exists and there is an inherent power in this Court,
by virtue of Clause 17 of the Letters Patent of 1862, to deal with guardian and wards
petitions on its original side. This verdict concludes the position that the Family Court
possess the necessary jurisdiction to deal with petitions filed under Guardianship and
Wards Act.
Decision
35. Now coming to the facts of this case, as pointed above, the children are
residing in Coimbatore and attending the school therein. The mother is also residing
in Coimbatore. The respondent/husband has been travelling from Chennai to
Coimbatore, even before the proceedings had been initiated, to be with the children.
Even after the proceedings had been initiated before the Family Court, the respondent
had been visited the children, without filing, an application for visitation. The wife,
having initiated the proceeding before the court in 2023, cannot be called upon to
shuttle between Coimbatore and Chennai and contest the proceedings at two forums.
36. One being a GWOP for guardianship and the other being the HMOP for
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divorce, interests of justice requires that the proceedings are heard and decided by the
same Judge. It has been a consistent view of the Supreme Court as well as of this
Court that in applications for transfer in matrimonial proceedings and in proceedings
relating to guardianship of children, a court has to take into consideration the
convenience of the wife and act in the best interests of the children.
37. It is possible that during the course of GWOP proceedings, the learned
Judge, who deals with the application, might want to interact with the children. In that
situation, I cannot force the minors, who are now aged about four, to travel a distance
of about 600 kms to come to Chennai and appear before this Court.
38. The other aspect that I have to take note is that the husband had not
invoked the jurisdiction of this court immediately on separation. He appeared before
the Family Court at Coimbatore and participated in the proceedings and only
thereafter, had filed GWOP.No.355 of 2024.
39. On 22.10.2024, the transfer petitioner/wife appeared before this Court in
virtual mode and the respondent/husband was present in person. The petitioner stated,
she has no objection for the husband to interact with the children as he is doing now.
She also agreed that the husband can visit the children during the first and third
weekends of every month at the Oxyzone Mall, Coimbatore.
40. At this stage, the husband has made a request that he should permitted to
interact with the children during week days through video calls. The wife expressed
difficulties, for a formal arrangement in this regard on account of the fact that the
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children, being young, are not willing to sit in one place and when video calls are
being made, they constantly move around. This is only a teething problem (no pun
intended). Once the children are aware that the father wants to reach out them over a
video call and if the relationship between the young minds and the father develops,
perhaps, they would be in a position to interact regularly as is being done by adults
over video calls. For a beginning, the father will be entitled to make video call to
interact with the children on every wednesday at 6.30 pm. Both the parties agree that,
in case, the children do not cooperate during the video calls, it would not be held
against the mother.
41. In the light of the above discussion, taking into consideration the
convenience of the wife and since she had approached the court earlier by invoking
the jurisdiction of the Family Court at Coimbatore and since it will be in the best
interests of the children that the proceedings be tried at Coimbatore, I am inclined to
accept this transfer. Accordingly, GWOP No.355 of 2024 pending on the file of this
Court is transferred to the file of the Family Court at Coimbatore to be heard and
disposed of along with HMOP.No.1937 of 2023, pending before it.
42. Further, in exercise of the powers vested in this court under section 24(2)
of the Code of Civil Procedure and since the parties are in agreement, I am giving the
following directions:
(i) the father will be entitled to visit the children on first and third weekends
(Saturday and Sunday) at Coimbatore and interact with the children between 10 am
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and 12 pm at Oxyzone mall in Coimbatore.
(ii) the father will be entitled to interact with the children via video
conferencing on every wednesday between 6.30pm to 7 pm.
(iii) This is only an interim arrangement. Being an application in a Guardian
and Wards proceedings, it is always capable of being modified by the learned trial
judge dealing with the applications.
(iv) The learned Family Judge on receipt of the papers in GWOP.No.355 of
2024 shall renumber the main proceedings as well as the interlocutory applications
and pass appropriate orders, after hearing both sides.
43. The directions given under (i) and (ii) are passed, since it has been agreed
upon between the parties.
44. With the above directions, this transfer petition is allowed. No costs.
Consequently, the connected miscellaneous petition is closed.
29.10.2024
nl
Index : Yes / No
Speaking order : Yes / No
NCC : Yes / No
To
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1. The Family Court at Coimbatore
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V.LAKSHMINARAYANAN, J.
nl
29.10.2024
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