JUDGMENT - A.D. MANE, J. :---There arises an important question on the scope of the provisions of section 23(3) of the Code of Civil Procedure (for short, the Code) in the matter of transfer of matrimonial proceeding.

2. The petitioner is wife of the respondent. The respondent filed Marriage Petition No. 104/A/1992 in the Court of the III Additional District Judge, Bhopal (Madhya Pradesh) for a decree of divorce under section 13 of the Hindu Marriage Act (for short, the Act), whereas, the petitioner filed her Marriage Petition No. 139/1992 for a decree of restitution of conjugal rights under section 9 of the Act on 30-7-1992 in the Court of Civil Judge Senior Division, Ahmednagar (Maharashtra).

3. In this petition, the petitioner inter alia prays that the Marriage Petition No. 1204/A/1992 which is pending in the Court of the III Additional District Judge, Bhopal be transferred to the Court of the Civil Judge Senior Division, Ahmednagar on the ground of her inability to attend the Court at Bhopal. This application has, however, been strongly opposed by the respondent.

4. The respondent has raised a preliminary objection that the transfer application does not lie in this Court under the provisions of section 23 of the Code. The learned Counsel for the parties, therefore, addressed on a limited point as to whether the present application lies before this Court for transfer of aforesaid proceeding from the Court at Bhopal to the Court at Ahmednagar.

5. Shri Gatne, learned Counsel for the petitioner submits that on plain reading of sub-section (3) of section 23 of the Code, it would be clear that application is competent and this Court has equal power to transfer the Hindu Marriage Petition from the Court of III Additional District Judge, Bhopal to the Court of Civil Judge Senior Division, Ahmednagar. In this context, the learned Counsel for the petitioner emphasises one of the canons of interpretation as more particularly set out in Chapter VII of Maxwell on the Interpretation of Statutes (XII Edition). Chapter VII deals with the presumptions regarding jurisdiction or presumptions against ousting established jurisdictions. The learned Counsel placed into service the well known rule of the construction of statutes that a statute should not be construed as taking away the jurisdiction of the courts in the absence of clear and unambiguous language to that effect.

6. Shri Karmarkar, learned Counsel for the respondent submits that language of sub-section (3) of section 23 of the Code is plain and clear. It requires no interpretation. It is submitted that the only High Court which enjoins power and jurisdiction to intervene and transfer the application under section 23 of the Code is the one which has territorial jurisdiction on the Court where the suit is pending and it is sought to be transferred. It is, therefore, urged that the contention raised by Shri Gatne, learned Counsel for the petitioner is devoid of any force.

7. Section 23 of the Code prescribes a forum where the application for transfer has to be made. It would be appropriate to reproduce the section 23. It reads as under :

"23. (1) Where the several courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate."

There is no dispute that sub-section (3) of section 23 of the Code would attract in the present case. The question, therefore, is whether the present application is competent in this Court to invoke power to transfer the suit which is pending in the Court of the III Additional District Judge, Bhopal which is subordinate to the High Court of Mad

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