KEERTHI B NAIR Vs. ROLLAND ANDRADE

JUDGEMENT

(1.) The question urged for a decision in this proceeding is whether invoking sub- s.(3) of Section 23 r/w Section 22 of the Code of Civil Procedure (for short, "the Code") it is within the power of a High Court transfer a case pending in a Court subordinate to it to a Court subordinate to another High Court or withdraw a case pending in a Court subordinate to another High Court to a Court subordinate to it . Placing reliance on the decision in Jency v. Biju Thomas, 2005 4 KerLT 766 learned counsel for petitioner contends that it is permissible.

(2.) A resume of the facts of the case required to decide the question are : Petitioner/wife filed O.P.No. 952 of 2011 for restitution of conjugal rights and M.C. No. 269 of 2011 seeking maintenance from the respondent/husband in the Family Court, Nedumangad. Respondent filed O.P. No. 770 of 2011 for restitution of conjugal rights in the Family Court at L.B. Nagar, R.R. District, Andhra Pradesh which is subordinate to the High Court of Andhra Pradesh. Petitioner states that she received notice on 17.08.2011 in O.P.No. 770of 2011 before which she had filed O.P. No. 952 of 2011 in the Family Court, Nedumangad. Hence, it is prayed that O.P. No. 770 of 2011 may be withdrawn from the Family Court, L.B. Nagar, R.R. District, Andhra Pradesh and transferred to the Family Court, Nedumangad.

(3.) In the decision relied by the learned counsel and referred supra, it is held that under sub-section (3) of Section 23 of the Code an application for transfer is maintainable before a High Court even where the proposed transferee Court is subordinate to another High Court and that if the petition for divorce (in that case) could be filed either before the Family Court, Chennai or before the Family Court, Ernakulam, this Court in exercise of its power under sub- s.(3) of Section 23 of the Code could transfer the case from Family Court, Ernakulam to Family Court, Chennai provided the requirements of sub-section (3) of Section 23 r/w Section 22 of the Code are satisfied. Learned Judge has placed reliance on the decisions (to hold so) in Ran: Kumar v. Tula Ram Nathu Ran, 1920 AIR(Pat) 138, Firm Kanhaiyalai v. Zumerlal, 1940 AIR(Nag) 145, P. Salayandi Nagar & Ors. v. Venugopala Chetty & Ors., 1960 AIR(Ker) 91 and the orders in C.M.C.No. 10 of 1996 and M.F.A.No. 1330 of 1996 of this Court.