NEELAM Vs. DARSHAN KUMAR

JUDGEMENT

(1.) The applicant for transfer of a matrimonial petition registered as Suit No. 71 of 1981 in the Court of the District Judge, Jhansi, is the respondent to that petition. The petition is for divorce under Section 13 of the Hindu Marriage Act, 1955. The petition was filed' on 9th November, 1981. Service of summons of the petition for divorce o n the res pondent-applicant was treated to be sufficient by refusal, by the District Court's orders dated the 15th January, 1982; and on 22nd January, 1982, it ordered that the case be put up on 5th February, 1982 for ex parte evidence, but on an application, dated the I st February, 1982, filed on the 4th February, 1982, the order to proceed ex parte was set aside on the 5th February, 1982, on payment of Rs. 15/- as costs, which was paid then and. there, and 1st March, 1982 was fixed for written statement and 5th March, 1982 for issues An application dated the 20th February, 1982 was thereafter filed on 1st March, 1982, under Section 24 of the Hindu Marriage Act for payment of interim main tenance at the rate of Rs. 500/- per month and Rs. l. OOO/- as expenses of litiga tion. This application under Section 24 was accompanied by an application praying for a stay of further proceedings until final orders were passed thereon. By its order, dated the 5th March 1982, the District Court fixed 3rd April, 1982 for disposal of the application under Section 24, and also directed the parties to be personally present on that date. The respondent-applicant did not appear in person on 3rd April, J982 in the District Court, Jhansi, where the matrimonial petition was pending and instead an application, dated the 18th March, 1982 was moved on that day, praying that her personal attendance may be dispensed with at the hearing of the application under Section 24, and a reasonable provision may be made for the expenses of her journey accompanied ky two escorts as a condition precedent. The learned District Judge passed the following order thereon:- "the ground of short of expenses of flimsy. The applicant Smt. Neelain is avoiding attending the Court for the reasons best known to her. The opposite-party alleges various reasons for it. However, 17-4- 1982 is fixed for the appearance of Smt. Neelam. Let the O. P. Darshan Kumar deposit Rs. 30/- to meet the expenses of the (illegible) of the applicant". S/d. Illegible, 3-4-1982. The patent harshness and injustice of this order brought the respondent -applicant to this Court praying for a transfer of the matrimonial petition regis tered as Suit No. 71 of 1981 from the District Court, Jhansi, to a Court of com petent jurisdiction at Kanpur. Further proceedings on the matrimonial petition in the District Court, Jhansi, were stayed and the record sent for by this Court's order, dated the 7th May, 1982, while admitting the transfer application. The grounds on which the transfer 'application was moved, are that the respondent/applicant has no means of income, and, in the circumstances, it would not be possible for her to contest the case at Jhansi. The order of the learned District Judge was described as perverse. Certain antecedent facts were also stated in the petition, which show that there was an order dated the 9th December, 1981, under Section 125, Cr. P. C. for payment of Rs. 500/-as maintenance allowance to the respondent-applicant by the petitioner-opposite-party. That was not complied with, and an application, dated the 19th Janu ary. 1982 had been filed for setting it aside, which was pending in the Court of the Magistrate at Kanpur. Another antecedent fact alleged was that a peti tion for restitution of conjugal rights had been tiled by the petitioner-opposite-party, which was Suit No. 61 of 1980, under Section 9 of the Hindu Marriage Act, but that was dismissed on 5th August, 1981 by the Court of the Second Additional District Judge, Jhansi, on the statement made by the petitioner-opposite-party that he did not want to proceed with that petition. From a copy of an order, dated the 13th July, 1981, annexure "1" to the affidavit, it appears that in Suit No. 61 of 1981 also an attempt was made to have the personal attendance of the respondent-applicant in that case. From paragraph 7 of the affidavit, dated the 10th May. 1982 of the petitioner. Opposite-party, which was filed in support of the application for vacating the stay order passed and hearing of the transfer application at an early date by this Court, it appears that the respondent-applicant had appeared on the 5th August, 1981 in the Court of the Second Additional District Judge at Jhansi and had made the following statement: "agar mujhe mere pati mera bachcha de dete hain main sab kutchh chhorne ko taiyar hoon. Agar mujhe mera bachcha aaj de diya jea per jab kabhi bhi de diya jae to main apne liye va apne bachche ke liye koi kharcha maintenance aadi ka nahin mangungi tatha unse mera koi sambandh nahin rahega. " The fact of this statement has been admitted in the rejoinder-affidavit of Chandrapal Arora that has been filed on behalf of respondent-applicant. The full statement of the respondent-applicant has been annexed to the rejoinder-affidavit. In the earlier part of her statement, the respondent-applicant had stated that she was prepared to live with her husband Darshan Kumar, but not with his family members; but if he was not willing to keep her in that position, she claimed Rs. 450/- as maintenance and the custody of her child. Her husband's income was Rs. 1500/-per month. The above quoted statement was the penultimate part of it. The statement of the petitioner-opposite-party has also been made as annexure '2' to the said rejoinder-affidavit, of which the opening sentence is that since his wife does not want to live with him, the bonds of matrimony between them may be dissolved. About the Child, the petitioner-opposite-party stated catego rically that the son would live with him. It has already been noticed above that the suit was thereupon dismissed as not pressed, the very same day on the 5th August, 1981. The petition for divorce giving rise to the present transfer application was filed, about three months thereafter. At the hearing of the transfer application on 26th August, 1982, an additional ground for transfer was raised under Section 22, C: P, C. ; inasmuch as the respondent-applicant had not filed her written statement in the petition for divorce. The respondent-applicant has admittedly been living at Kanpur. The petition for divorce could surely be filed in the District Court, Kanpur, under Section 19 (ii) of the Hindu Marriage Act. Mr. G. P. Bhargava, learned counsel for the petitioner-opposite-party, wanted time to look into the matter in the light of the provisions of Section 22 of the Code of Civil Procedure. His request was justified, for the application for transfer does not mention the ground, on which an application for transfer may be made under Section 22 of the Code of Civil Procedure; and the application purports, on its face, to be an application for transfer under Section 24 of the Code of Civil Procedure only. However, as I glanced through the petition for divorce, I felt that it did not disclose any cause of action and was prima facie fit to be rejected under order 7 rule 11 C. P. C. Mr. C. P. Bhargava justifiably asked for time to look into this aspect of the matter also. By a speaking order, dated the 26th August, 1982. I thereupon adjourned the hearing of the case to the 13th September, 19x2 in order to give the petitioner-opposite-party a reasonable opportunity to be heard on both the said points An application, dated the 31st August, 1982 was thereupon moved on the 2nd September, 1982 on behalf of the petitioner-opposite-party, in which it is said that, in the light of this Court's order, dated 26th August, 1982, "there appears to be defect in the pleadings" and that "'otherwise too; the suit deserved to be withdrawn with liberty to file a fresh one, as two years' period of deser tion is now completed. " However, in paragraph 3 of the application, it is said that no case exists for transfer of the case to this Court, and that the order on the application may be passed by the District Judge of Jhansi who has season of the case. The prayer made in the application is that the record be sent to the Court of the District Judge, Jhansi, along with the application to enable him to pass a suitable order, and that a stay or proceedings by this Court may also be withdrawn. The application purports to have been made under Order 23 Rule, 1 (3) of the Code of Civil Procedure, It is admitted by the said appli cation, which is accompanied by an affidavit of the petitioner-opposite-party, that the petition for divorce, that has been filed by him, is not maintainable, as it is, on account of a legal defect. The defect is, as observed in the Court's order, dated the 26th August, 1982 that the petition does not disclose any cause of action. That being so, the petition is clearly liable to be rejected under Order 7, Rule 11 of the Code of Civil Procedure. It is not a case, where the Court's permission may be necessary for withdrawal of a suit under clause (3) of Rule 1 or Order 23 of the Code of Civil Procedure, for the defect is not of that kind, and Rule 13 of Order 7 itself provides that the rejection of a plaint on any of the grounds contained in Rule 11 of Order 7, shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of' action. In the present case, the place of the plaint in a suit is taken by the petition for divorce and that of the plaintiff by the petitioner. The petition is liable to be rejected under clause (a) of Rule 11 of Order 7 of the Code of Civil Procedure, and if it is so rejected, it shall be open to the petitioner-opposite-party' to institute a fresh case, provided, of course, there is any cause of action for the same. Since there is no cause of action for the pstition for divorce registered as Suit No. 71 of 1981 in the Court of the District Judge, Jhansi, it would not be appropriate to dismiss it and there could be no question of granting permission to institute a fresh petition for divorce on the same case of action, for, ipso facto, the petition does not disclose any cause of action, and the respondent-applicant has not even entered upon her defense so far. Under the circumstances, the only appropriate order to be passed on the petition for divorce would be to reject it on the ground that it does not disclose the cause of action under Order 7, Rule 11 of the Code of Civil Procedure. Mr. Bhargava, however, contended that this Court is not seized of the divorce petition and that the above order could, if at all, be passed by the Court of the District Judge, where the petition was pending, and whether there was any case for transfer or not, it would be futile to consider it now and the matter may as well be sent back to the Court of the District Judge, Jhansi t o pass an appropriate order on the divorce petition. Under Section 24 of the Code of Civil Procedure, this Court may, on the application of any of the parties or of its own motion, not only transfer a suit for trial from one Court to another Court subordinate to it, but may also with draw any suit pending in any Court subordinate to it and try to dispose of the same. The power for transfer can be exercised on an application of any of the parties and also suo motu. Section 24 does not prescribe any grounds, on which the transfer of a case may be ordered from one Court to another. But certain principles have been evolved by decisions, when a case may be transferred on the application of a party. There is, however, no restriction whatsoever on the power of the High Court to transfer a case or withdraw it suo motu. The record of the petition for divorce is before this Court. The whole of the petition has been read. The petitioner does not dispute that the petition, as it stands, does not disclose a cause of action. It would be, in my opinion, an exercise in futility for this Court to send the record back to the Court of the District Judge, Jhansi, to pass the only appropriate order, which, in my pinion, deserves to be passed thereon, namely, to reject the petition for divorce for not disclosing a cause of action under Order 7, Rule 11 of the Code of Civil Procedure. In the result, the matrimonial Suit No. 71 of 1981 of the Court of District Judge, Jhansi, between Darshan Kumar petitioner and Smt. Neelam respondent, under Section 13 of the Hindu Marriage Act, 1955, is withdrawn to this Court under Section 24 (1) (b) and under clause (i) thereof, the petition for divorce is rejected under Order 7 Rule 11 (a) of the Code of Civil Procedure. The respondent-applicant shall be entitled to her costs throughout. Let a copy of this order be placed on the record of the Matrimonial Suit No. 71 of 1981 of the Court of the District Judge, Jhansi. which has been with drawn and finally disposed of as aforesaid by this Court. .