JENCY Vs. BIJU THOMAS

JUDGEMENT

(1.) The petitioner, who is the wife of the respondent, prays for a transfer of O.P.No. 754 of 2004 pending before the Family Court, Ernakulam to the Principal Family Court, Chennai. The Transfer Petition is filed under Section 24 of the Code of Civil Procedure. Though Sections 22 and 23 are mentioned in the Tr.P.C., these sections are seen struck off. The O.P. was filed by the respondent for dissolution of marriage.

(2.) The material facts are not in dispute, though these facts are not stated either in the Transfer Petition or in the counter filed by the respondent. Counsel appearing for both sides submitted that the marriage between the petitioner and the respondent was solemnized at Ernakulam, within the jurisdiction of the Family Court, Ernakulam. It is also submitted that the petitioner and the respondent were residing together in Dubai for quite sometime. It is averred in the O.P. for dissolution of marriage filed by the respondent that the parties last resided together at Ernakulam. This averment is not denied in the Transfer Petition. The petitioner in the Transfer Petition has not filed any objections in the O.P. pending before the Family Court, Ernakulam. Counsel for the petitioner submitted that the averment in the O.P. that the parties last resided together at Ernakulam is not correct and that they last resided together in Dubai. Since no such averment is available anywhere in the pleadings, it is to be taken for the purpose of this Transfer Petition that the parties last resided together at Ernakulam. This will not preclude the petitioner from raising any objection on that aspect before the Family Court.

(3.) Section 24 of the C.P.C. does not apply at all to the facts of the case. By exercising power under Section 24, this Court can transfer a suit, appeal or proceedings only to a court subordinate to this Court. A suit or proceedings cannot be transferred to a Court outside the State by exercising jurisdiction under Section 24 of the C.P.C. Under Clause (a) of Sub-section (1) of Section 24 of the C.P.C., this Court can transfer any suit, appeal or other proceeding pending before it to any Court subordinate to it and competent to try and dispose of the same. Under Clause (b) of Sub-section (1) of Section 24, a High Court can withdraw any suit, appeal or other proceedings pending in any subordinate court and either dispose it of or transfer it to any Court subordinate to the High Court or re-transfer the same to the Court from which it was withdrawn. Sub-section (1) of Section 24 does not apply at all in the case of transfer of a suit, appeal or other proceedings from a Court subordinate to a High Court to another Court within the jurisdiction of another High Court.