2011(3) ALL MR 279
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

R.K. DESHPANDE, J.

Smt. Rekha Wd/O. Late Avinash Raut Vs. Shivaji Bhimrao Sapate

Misc. Civil Application (Transfer) No.788 of 2010

16th March, 2011

Petitioner Counsel: Shri. S. D. SIRPURKAR
Respondent Counsel: Smt. V. P. THAKRE

Civil P.C. (1908), S.24 - Transfer of Civil Suit - Mere inconvenience of one of the parties viz. a lady may not be enough for exercising power of transfer of case.

Section 24 of the Code of Civil Procedure confers a discretionary power upon this Court to transfer the proceedings pending in one subordinate Court to another subordinate Court. It has to be exercised keeping in view the facts and circumstances of each case. While deciding the application, the Court has to balance the convenience by taking into consideration relevant facts and circumstances and to see that the greater hardship is not caused by transfer of proceedings. Mere convenience of the parties or of any one of them may not be enough for exercise of power, but it must also be shown that the forum chosen by the other side will result in denial of justice. The choice of forum should not be to cause inconvenience to the adversary with a view to deprive that party of a fair trial. The power is to be exercised in the interest of justice. The cases of transfer of matrimonial proceedings stand on a little different footing in view of the special provision for transfer of petition under Section 21-A of the Hindu Marriage Act, 1955. There also, the payment of to and fro expenses for travel for attending the matter by the wife is one of the important considerations for refusal to grant transfer. [Para 5]

In this case, the question of transfer of matrimonial proceedings is not involved. This a case is of the alleged transaction of advancing loan, which took place at Latur. At the time when the transaction took place, both the parties were staying at Latur. The cheques alleged to have been tendered by the husband of the applicant at Latur. The alleged dishonour also took place at Latur. The witnesses are from Latur. However, the applicant/defendant has shifted from Latur to Nagpur due to transfer of her service in Maharashtra State Road Transport Corporation. It is not a case of the applicant/defendant that both the Court at Latur or the Court at Nagpur shall have jurisdiction over the subject-matter of the suit. In view of this, merely because the applicant/defendant is a lady staying at Nagpur along with her two children and she is required to travel from Nagpur to Latur for about 16 to 18 hours, would not be enough to grant an application for transfer of the proceedings. The job of the applicant/defendant is transferable, and in case of transfer of the applicant/defendant from Nagpur to some other place, it would not be possible to again transfer the proceedings at that place. Transfer of the proceedings will cause greater inconvenience to the plaintiff. Thus, the applicant/defendant has failed to make out a case for transfer of the proceedings from Latur to Nagpur. [Para 6]

Cases Cited:
Kalpana Deviprakash Thakar (Smt) Vs. Dr. Deviprakash Thakar, (1996)11 SCC 96 [Para 5]
Shiv Kumari Devendra Ojha Vs. Ramajor Shitla Prasad Ojha, AIR 1997 SC 1036 [Para 5]


JUDGMENT

JUDGMENT:- By this Misc. Civil Application filed under Section 24 of the Code of Civil Procedure, the applicant is seeking transfer of Special Civil Suit No.166 of 2009 pending in the Court of 3rd joint Civil Judge, Senior Division, Latur, to the competent Court at Nagpur.

2. The facts of the case are as under:

The applicant is the original defendant, whereas the non-applicant is the original plaintiff. The non-applicant has filed Special Civil Suit No.166 of 2009 against the applicant for recovery of an amount of Rs.3,96,000/- along with interest at the rate of 18% per annum from the date of the suit till its realization. The said suit is pending in the Court of 3rd Joint Civil Judge, Senior Division, Latur. It is the case of the non-applicant/plaintiff that the husband of the applicant late Avinash Raut - was his nearest friend and out of friendly relationship, he had advanced a loan of Rs.3,96,000/- to the said Avinash Raut on 30-10-2007. The said amount was given in presence of two witnesses, viz. (i) Londe Naganath Nivarati, resident of Latur; and (ii) Jelani Babu Karbu, resident of Latur. The said Avinash Raut promised to repay the amount to the non-applicant/plaintiff within a period of one to two years. For that purpose, four cheques were also issued by the said Avinash Raut for an amount of Rs.30,000/-, Rs.1,00,000/-, Rs.2,16,000/-, and Rs.50,000/-. However, all those cheques were dishonoured. The said Avinash Raut died on 4-3-2008 at Latur. Thus, the amount was to be recovered. Hence, the suit was filed.

3. Upon receipt of suit summons, the applicant/defendant has filed the present application for transfer of the proceedings from Latur to Nagpur on the ground that it would be extremely difficult for her to travel from Nagpur to Latur, which is more than 600 kms. The applicant/defendant is having two children, who are taking education at Nagpur, and is serving as Technician in the Maharashtra State Road Transport Corporation at Nagpur. According to the applicant/defendant, the journey from Nagpur to Latur would take around 16 to 18 hours, and hence in the interest of justice and to avoid the inconvenience that would be caused to her, the transfer of the proceedings has been sought.

4. Notice for final disposal of the matter was issued to the non-applicant/plaintiff by this Court on 26-8-2010. The non-applicant/plaintiff has filed his reply opposing the application. The learned counsels appearing for the parties submit that the matter can be finally decided at the stage of admission itself. Hence, Admit. The matter is heard finally by consent of the learned counsels appearing for the parties.

5. Section 24 of the Code of Civil Procedure confers a discretionary power upon this Court to transfer the proceedings pending in one subordinate Court to another subordinate Court. It has to be exercised keeping in view the facts and circumstances of each case. The same cannot be exercised ipse dixit. The transfer of proceedings, which are filed in the court of competent jurisdiction, defeats the right of dominus litis to choose the forum. While deciding the application, the Court has to balance the convenience by taking into consideration relevant facts and circumstances and to see that the greater hardship is not caused by transfer of proceedings. Mere convenience of the parties or of any one of them may not be enough for exercise of power, but it must also be shown that the forum chosen by the other side will result in denial of justice. The choice of forum should not be to cause inconvenience to the adversary with a view to deprive that party of a fair trial. The power is to be exercised in the interest of justice. The cases of transfer of matrimonial proceedings stand on a little different footing in view of the special provision for transfer of petition under Section 21-A of the Hindu Marriage Act, 1955. There also, the payment of to and fro expenses for travel for attending the matter by the wife is one of the important considerations for refusal to grant transfer [See : (1996)11 SCC 96 - Kalpana Deviprakash Thakar (Smt) Vs. Dr. Deviprakash Thakar] and AIR 1997 SC 1036 - Shiv Kumari Devendra Ojha Vs. Ramajor Shitla Prasad Ojha and others].

6. In this case, the question of transfer of matrimonial proceedings is not involved. This a case of the alleged transaction of advancing loan, which took place at Latur. At the time when the transaction took place, both the parties were staying at Latur. The cheques alleged to have been tendered by the husband of the applicant at Latur. The alleged dishonour also took place at Latur. The witnesses are from Latur. However, the applicant/defendant has shifted from Latur to Nagpur due to transfer of her service in Maharashtra State Road Transport Corporation. It is not a case of the applicant/defendant that both the Court at Latur or the Court at Nagpur shall have jurisdiction over the subject-matter of the suit. In view of this, merely because the applicant/defendant is a lady staying at Nagpur along with her two children and she is required to travel from Nagpur to Latur for about 16 to 18 hours, would not be enough to grant an application for transfer of the proceedings. The job of the applicant/defendant is transferable, and in case of transfer of the applicant/defendant from Nagpur to some other place, it would not be possible to again transfer the proceedings at that place. The witnesses are from Latur. If the proceedings are transferred to Nagpur, inconvenience shall not only cause to the plaintiff, but also to the witnesses, who will have to travel from Latur to Nagpur for giving evidence. Transfer of the proceedings will cause greater inconvenience to the plaintiff. Thus, the applicant/defendant has failed to make out a case for transfer of the proceedings from Latur to Nagpur.

7. In the result, the Misc. Civil Application has no merit. It is, therefore, dismissed. Rule stands discharged. No order as to costs.

Application dismissed.