ANIMA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD .

(2.) IN this application under Section 24, Code of Civil Procedure, 1908 (in short 'the Code') petitioner seeks for transfer of Civil Proceeding No. 124 of 2002 pending in the Court of Judge, Family Court, Cuttack to the Court at Jaleswar or Balasore. In course of argument, learned counsel for the petitioner states that there is no Court of competent jurisdiction at Jaleswar and therefore petitioner prays for transfer of the said proceeding to the Court of Civil Judge (Sr. Division) at Balasore.

(3.) THE opposite party No. 2 has filed civil Proceeding No. 124 of 2002 in the Court of Judge, Family Court, Cuttack seeking the relief of a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (in short 'the Act') . Petitioner has stated that she is still in her in -law's house staying at the native place of the opposite party No. 2 along with the other family members of the opposite party No. 2 and opposite party No. 2 having developed weakness towards a lady co -worker working in the same establishment at Bhubaneswar, insisted her to consent for a mutual decree of divorce and when she refused he has filed the Civil Proceeding at Cuttack seeking the prayer of divorce. She has stated that a minor son aged about 2 years born out of the wedlock is under her care and protection, and it will not be convenient on her part to travel the distance from Batagram in Balasore to Cuttack to participate in the matrimonial proceeding on each date. She has also stated that her husband is the only bread earner of her family and to fight out the litigation against him she has no independent source of income and it will be against the interest of justice if she will be called upon to fight the litigation at Cuttack. Accordingly, she has prayed for transfer of the above noted Civil Proceeding. The aforesaid allegations and assertion of the petitioner are supported by her affidavit. No counter affidavit has been file'd by the opposite party No. 2 nor he has sought for time to file any such counter affidavit or show cause. In the matter relating to transfer of suit, appeal or other proceedings Section 24 of the Code imposes no restriction on invoking that provision. In other words, wide power has been conferred on the High Courts and Courts of District Judges to consider the matter relating to transfer of cases of the above categories. Therefore, such power is to be exercised with reasonableness and keeping in view the interest of justice because those are the two dominant factors which should guide the Courts to determine whether a case should be transferred within its jurisdiction from one competent Court of pecuniary jurisdiction to another competent Court having such pecuniary jurisdiction. Cases transferred under Section 24 of the Code provides exception to the procedural law that a Court having territorial jurisdiction can only try a suit. In other words, a competent Court of pecuniary jurisdiction even if having no territorial jurisdiction can try a suit or hear an appeal or deal with and dispose of other proceedings if transferred to that Court and such disposal cannot be regarded as without jurisdiction.