2010 Supreme(Kar) 622

HIGH COURT OF KARNATAKA
S. ABDUL NAZEER
Smt. M.V. Rekha
Versus
Sri Sathya alias Suraj
Civil Petition No.199 of 2009
Decided on : 07-06-2010

Comparative Citations:
2011 (1) KCCR 68, 2010 ILR(Kar) 5407

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 24: [S.Abdul Nazeer,J] Transfer of case - Matrimonial cases - Held, The cardinal principle for exercise of power under Section 24 is that ends of justice demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of either of the parties, the social strata of the spouses and behavioural pattern, their standard of life antecedent to marriage and subsequent thereon and the circumstances of either of the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life, Generally, it is the wife’s convenience which must be looked at while considering transfer, Further, when two proceedings in different Courts which raise common question of fact and law and when the decisions are interdependent, it is desirable that they should be tried together by the same judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.

        In the instant case, Divorce petition by wife was filed at Bangalore Court and Husband was seeking restitution of conjugal rights before Mysore Court. Question of law and fact involved in both the cases were common and interdependent. Thus trying them separately will result is multiplicity of same issues was not in receipt of any maintenance from husband and working in a private company at meagre salary of Rs.3000/- only. Hence, she does not have sufficient income to travel to Mysore to pursue the said case. Hence case pending before Mysore Court was transferred to Bangalore.

       CODE OF CIVIL PROCEDURE, 1908 - Section 24: [ S. Abdul Nazeer, J] Words "Competent to try" occurring in Section 24(1) - Interpretation of - Held, The words ’competent to try’ included in Section 24(1) of the Code of Civil Procedure does not refer to territorial jurisdiction. The High Court or the District Judge can transfer a case under this provision to a Court, which need not have territorial jurisdiction over the subject matter of the litigation if the transferee Court is otherwise competent to try it. Further, the words ’competent to try ’ occurring in Section 24(1) of the CPC referring only to pecuniary jurisdiction. The territorial jurisdiction can be waived because it does not go to the root of the case whereas competence of the Court in try the case goes to the very root of the jurisdiction and refers to the inherent lack of jurisdiction by the Court, On facts, held, if that is so, there is no bar for High Court to transfer the case filed by the Respondent seeking restitution of conjugal rights pending on the file of the Principal Family Court at Mysore to the Court of First Additional Family Judge, Bangalore. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that ends of justice demand the transfer of the suit, appeal or other proceedings. In matrimonial matters, wherever Courts have to take into consideration the economic soundness of either of the parties, the social strata of the spouses and behavioural pattern , their standard of life antecedent to marriage and subsequent thereon and the circumstances of either of the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Generally, it is the wife’s convenience which must be looked at while considering transfer. further held, when two proceedings in different Courts which raise common question of fact and law and when the decisions are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions. On facts, held, further, in the case filed by the petitioner for divorce, the question for consideration is whether the petitioner filed by the Respondent seeking restitution of conjugal rights, the question is whether the petitioner has withdrawn from the company of the Respondent without there being any sufficient cause. The decisions in both the cases are interdependent. Therefore, both the cases should be tried together so as to avoid multiplicity of trial of the same issued and to avoid conflict of decisions.