VEMPATI SARADA Vs. VEMPATI KALADHAR

JUDGEMENT

(1.) ORDER :The petitioner/wife filed the transfer CMP under Section 23(3) of the Code of Civil Procedure (hereinafter referred to as 'the Code') praying for transfer of O.P.No.41 of 2002 on the file of the Family Court, City Civil Court, Secunderabad to be tried along with H.M.O.P. No.179 of 2001 on the file of the Principal Subordinate Judge at Chengalput in the State of Tamil Nadu as the questions involved are substantially the same and parties are the same and pass such other suitable orders.

(2.) The wife filed an affidavit in detail in respect of the transfer CMP and the respondent/husband also filed a counter-affidavit giving more details, virtually denying all allegations. Several of the allegations made by both the wife and the husband in the present transfer CMP relate to merits or demerits of the main proceedings which are to be decided in both the O.P.'s referred to supra, pending before the respective Courts.

(3.) Sri Nagabhushana Rao, the Counsel representing the petitioner/wife had taken me through the allegations made in the affidavit filed in support of the transfer CMP and had submitted that the petitioner filed H.M.O.P.N0.252 of 2000 on the file of the Subordinate Judge, Poonamallee. H.M.O.P. No.252 of 2000, originally on the file of Subordinate Judge's Court, Poonamallee which no doubt was transferred on administrative grounds to Principal Subordinate Judge's Court, Chengalput was numbered as H.M.O.P.No.l79 of 2001. The learned Counsel also submitted that the wife filed the said O.P. for restitution of conjugal rights under Section 9 of Hindu Marriage Act, 1955. The learned Counsel also submitted that the wife is always ready and willing to live with the husband and for the reasons which had been narrated in detail, the problems had cropped up. The learned Counsel further submitted that after H.M.O.P. No.252 of 2000 was filed on the file of the Subordinate Judge, Poonamallee the respondent/husband had filed O.P.No.41 of 2002 on the file of the Family Court, City Civil Court, Secunderabad praying for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 and this was thought of only to put the wife into trouble. It is also stated that the petitioner has no means to support herself and she is living at the mercy of her father and her brother in meeting even travel expenses to and fro from Chennai to Hyderabad and being a lady she cannot travel alone from Chennai to Hyderabad and the petitioner also had stated that the respondent/husband is making certain allegations only with a view to gain sympathy of the Court. The learned Counsel further had submitted on the question of maintainability of the present transfer CMP that in view of the clear language employed under Section 23(3) of the Code, this Court is definitely empowered to order transfer of a proceeding pending on the file of a Subordinate Court to High Court of Andhra Pradesh to yet another Subordinate Court of High Court of Madras. The learned Counsel also submitted that the powers which can be exercised under Section 23(3) of the Code by the respective High Courts and Section 25 of the Code by the Supreme Court are in a way concurrent exercise of powers and the power under Section 23(3) of the Code to order transfer in such cases is in no way curtailed by Section 25 of the Code. The learned Counsel also placed strong reliance on Mamta Gupta v. Mukund Kumar Gupta, AIR 2000 AP 394 = 2000 (3) ALD 285.