Principal Bench has power to transfer case in exercise of powers under Sec.24(1)(b) of CPC.

(Transfer Civil Miscellaneous Petition under section 24 of Civil Procedure Code, filed to withdraw H.M.O.P.No.32 of 2004 pending on the file of Sub Court, Pattukottai, and to transfer the same to the file of Family Court, Salem.)

The petitioner/wife in the Transfer Civil Miscellaneous Petition, residing in Salem and who is the Respondent in H.M.O.P.No.32 of 2004 on the file of Sub-Judge, Pattukottai for restitution of conjugal rights filed under Section 9 of the Hindu Marriage Act by the Respondent, seeking for a transfer of the same from the Sub-Court, Pattukottai to the Family Court at Salem, on the ground of her physical and fiscal difficulty in travelling all the way from Salem to Pattukottai. She is an unemployed person aged 38, living with her younger brother, who is working as a clerk in a private company.

2. The husband, who is Respondent in the Transfer Civil Miscellaneous Petition is an employee in the State Government as Village Administrative Officer, aged 47, living at Ettivayal Village of Pattukottai.

3. Upon hearing the arguments of the learned counsel appearing for either side and also considering the fact that the husband is employed and getting salary; whereas the wife is unemployed and depending upon her brother's meagre income, it is found that there is a valid ground for transfer of the above mentioned proceedings from Sub-Court, Pattukottai to the Family Court at Salem, especially when no financial support is offered by the side of the husband for the wife to travel to Pattukottai in attending the proceedings of the Court.

4. Mr. K.Chandrasekar, learned counsel appearing for the husband raised a legal embargo in transferring the case from Pattukottai to Salem. The power of transfer is exercisable by invoking Section 24 of C.P.C.; according to proviso (b) to sub-section (1) of that section, on the application, the High Court may withdraw any suit pending in any Court subordinate to it; and transfer the same for trial to any Court subordinate to it. Thus, it is to be seen that the High Court making the order of transfer shall be empowered under Section 24(b)(1) C.P.C. not only to withdraw from a Court; but also to transfer into another Court; and that both shall be subordinate to the said High Court.

5. The contention by the learned counsel for the Respondent/husband was that, in order to withdraw a suit, that should be pending in any Court subordinate to the Court which makes the order of transfer. It was pointed out that Sub-Court, Pattukottai is lying within the jurisdiction of the permanent bench of Madras High Court at Madurai. So it was argued that this Principal Seat at Madras cannot have the power of withdrawal from Sub-Court, Pattukottai.

6. Mr.M.R.Dharanichander, learned counsel appearing for the Petitioner/wife submitted that even if similar application for transfer is filed in Madurai Bench, the Respondent/Husband will oppose that application also with a similar argument relying upon Section 24 (1)(b)(ii), by contending that the Madurai Bench may not have jurisdiction to order transfer of the proceedings to Sub-Court Salem, inasmuch as that Court falls into the Territorial jurisdiction of Principal Seat at Madras High Court.

7. There are two views of looking at things

(1) all Courts are subordinate to either components of Madras High Court i.e. Principal Seat at Madras and Permanent Bench at Madurai.

(2) The discretionary power of the Chief Justice provided in the Presidential Order of bifurcating the High Court into Principal Seat at Madras and Permanent Bench at Madurai may be invoked in such contingencies.

8. The Madras High Court (establishment of a permanent Bench at Madurai) order, 2004 was made by the President of India in exercise of powers conferred by sub-section (2) of section 51 of the States Reorganisation Act, 1956 (37 of 1956), whereby the establishment of a permanent Bench of Madras High Court at Madurai was made with Judges of the Madras High Court, not less than five in