Judgment

TULZAPURKAR, J.:- On September 26. 1979, the petitioner (wife) filed a suit in forma pauperis seeking maintenance from the respondent (her husband) in the Court of Subordinate Judge, Eluru (Andhra Pradesh) being O. P. No. 72 of 1979. On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Case No. 28 of 1980) against the wife under Section 13 of the Hindu Marriage Act, 1955 in the Court of the District Judge, Udaipur (Rajasthan). By the instant transfer petition filed under Section 25 C. P. C. 1908 the wife is seeking to get the husbands suit transferred to Eluru. On merits we are satisfied that it is expedient for the ends of justice to transfer the husbands suit to the District Court at Eluru (A. P.) where both the proceedings could be tried together and for that purpose the wife is agreeable to have her maintenance suit transferred to the District Court at Eluru (A. P.)

2. However, counsel for the respondent (husband) has raised before us a preliminary objection that Section 25 of the C. P. C, under which the transfer petition has been made is not applicable to proceedings under the Hindu Marriage Act, 1955 and as such this Court has no power to transfer the husbands suit from Udaipur District Court to the District Court at Eluru. He urged that Section 25 of C. P. C. gets excluded by reason of the provisions of Sections 21 and 21A of the Hindu Marriage Act 1955. According to him Section 25. C. P. C. deals with the substantive law and not procedural law and since Section 21 of the Hindu Marriage Act makes applicable to all the proceedings under the Act only such provisions of C. P. C. as relate to the regulation of proceedings i. e. such provisions which deal with procedural matters only, Section 25 C. P. C. is not applicable. He also urged that Section 21A (3) of the Hindu Marriage Act also makes the above position clear beyond doubt by specifically excluding Sections 24 and 25 C. P. C. from being applied to the proceedings under the Hindu Marriage Act. A large number of authorities were referred to by counsel to substantiate his contention on general principles but in particular one decision of the Nagpur Bench of the Bombay High Court in the case of Priyavari Mehta v. Priyanath Mehta, AIR 1980 Bom 337 was pressed into service as having a direct bearing on the point.

3. In our view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection. In the first place it is difficult to accept the contention that the substantive provision contained in Section 25 C. P. C. is excluded by reason of Section 21 of the Hindu Marriage. Act, 1955. Section 21 of the Hindu Marriage Act merely provides: "Subject to the other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908". In terms Section 21 does not make any distinction between procedural and substantive provisions of C. P. C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase "as far as may be" means, and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into S. 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in Section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record