Smti Mamoli Das @ Mamli Das Vs Mononith Das

transferring the title suit, being T.S. (M) No. 13/2025, pending before the Court of the learned District Judge, Karbi Anglong, Diphu, to the Court of the learned District Judge, Sonitpur at Tezpur.

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3. Mr. Ganguly, learned counsel for the petitioner submits that the petitioner got married with the respondent on 31.01.2024 and thereafter, they started their conjugal life at the matrimonial home, at Howraghat, Karbi Anglong. After the marriage, marital discord surfaced between them and the petitioner was forced to leave the matrimonial home on 01.07.2024 and since then, she has been living in her parental abode at Rangapara, with her age old parents.

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3.1 Mr. Ganguly also submits that on 18.12.2024, after nine months of her marriage, the petitioner had received one legal notice from the counsel for the respondent and thereafter, the T.S. (M) Case No. 13/2025 was filed by the respondent for a decree of divorce, before the Court of the learned District Judge, Karbi Anglong, Diphu, under Section 13(1)(ia) of the Hindu Marriage Act, 1955, as amended up-to-date.

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3.2 Mr. Ganguly, further submits that the petitioner is presently living with her parents at Rangapara, which is situated at a distance of about 225 kms from Karbi Anglong, Diphu, and she has the burden of looking after her age old parents as she has no brothers and her sisters already got married and that it would be impossible on her part to undertake such a tedious journey alone, from Rangapara to Karbi Anglong, by travelling a distance of about 450 kms (both up and down). Further, he submits that the petitioner has also filed one CR case, being CR Case No. 1320/2025, under the Domestic Violence Act, 1955, which is presently pending before the Court of learned Chief Judicial Magistrate, Tezpur and in the said case the respondent herein is entering appearance. Under such circumstances, Mr. Ganguly submits that the T.S. (M) Case No.

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13/2025 may be transferred to the Court of the learned District Judge, Sonitpur at Tezpur.

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4. Per contra, Mr. Chetri, learned counsel for the respondent, has vehemently opposed the petition. He submits that the petitioner had left the matrimonial home at her own volition and that the respondent is living hand to mouth and is dependent upon the income of his parents and it is not possible on his part to contest the T.S. (M) Case No. 13/2025 at Tezpur and therefore, Mr. Chetri submits that the T.S. (M) Case No. 13/2025 can be transferred to the Court of learned District Judge at Nagaon, which would be convenient for both the parties. Further Mr. Chetry submits that there is also possibility of reconciliation between the parties.

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5. Having heard the submissions of the learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and I have also gone through the relevant provision of law.

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6. Section 24 of the C.P.C. provides for transfer of a suit. It reads as under:-

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(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage

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(a) Transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

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(b) Withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

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(i) try or dispose of the same; or

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(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

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(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

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(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which 1[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

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(3) For the purposes of this section,

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(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

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(b) Proceeding includes a proceeding for the execution of a decree or order].

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(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

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(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it .

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7. It the instant case, the applicable provision is 24(1)(ii) of CPC. Before a discussion is directed into the issue, it would be in the interest of justice to understand the principles, governing transfer of cases, presently occupying the field.

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8. In the case of Indian Overseas Bank vs. Chemical Construction Company , reported in (1979) 4 SCC 358 , while dealing with

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considerations that has to be taken into account for transferring a case, the Hon’ble Supreme Court has held as under :-

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“ 16. The principle governing the general power of transfer and withdrawal under Section 24 of the Code is that the plaintiff is the dominus litis and, as such, entitled to institute his suit in any forum which the law allows him. The court should not lightly change that forum and compel him to go to another court, with consequent increase in inconvenience and expense of prosecuting his suit. A mere balance of convenience in favour of proceedings in another court, albeit a material consideration, may not always be a sure criterion justifying transfer.

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17. As compared with Section 24, the power of transfer of civil proceeding to another court, conferred under the new Section 25 on the Supreme Court, is far wider. And, so is the amplitude of the expression, “expedient in the interest of justice” which furnishes a general guideline for the exercise of the power. Whether it is expedient or desirable in the interest of justice to transfer a proceeding to another court, is a question which depends on the circumstances of the particular case.”

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9. There is, however, unanimity of opinion that ‘ balance of convenience’ is the prime consideration for transfer of a suit. The expression

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" balance of convenience " has inspired profound legal thought and has acquired the gloss of many judicial interpretations. Restated in simple terms, it is a question of fact in each case. ‘ Balance of convenience’ is neither the convenience of the plaintiff alone nor of the defendant alone, but the balance of convenience of both. In determining the balance of convenience for the trial of a suit, the Court has to take into consideration the following:-

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“ (1) Convenience or inconvenience of the plaintiff and the right of the plaintiff to choose his own forum;

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(2) Convenience or inconvenience of the defendant;

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(3) Convenience or inconvenience of the witnesses required for a proper trial of the suit;

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(4) Convenience or inconvenience of the particular place of trial having regard to the nature of the evidence on the main points involved in the suit and also having regard to the doctrine of ‘forum convenience’; and

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(5) Nature of issues in the suit.” (Ref. Baburam Agarwalla vs. Jamunadas Ramji And Co. reported in AIR 1951 Cal 239 )

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10. Again, in the case of Mrs. Maneka Sanjay Gandhi and Anr. vs. Ms. Rani Jethmalani reported in (1979 (4) SCC 167), Hon’ble Supreme Court has emphasized the necessity to ensure fair trial, observing as hereunder:-

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“ Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.

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11. Although, Mrs. Maneka Sanjay Gandhi (supra), relates to a criminal case, yet the context is same i.e. transfer. Therefore, this court is of the view that the principle enunciated therein can be applied in other cases also.

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12. Thus, it appears that though the plaintiff is dominus litis, yet, the

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aforesaid right can be interfered with by the court on consideration of several factors and out of the same ‘ balance of convenience’ is the prime consideration.

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13. In the case in hand, it is not in dispute that the petitioner is presently residing in her parental abode at Rangapara and the T.S. (M) Case No. 13/2025, is instituted at Karbi Anglong, Diphu, by the respondent, which is situated at a distance of about 225 kms. Being a lady and also having the burden of looking after her age old parents, it would not be possible on her part to undertake a journey of 450 kms, alone, in order to contest the case at Karbi Anglong, Diphu on each and every date.

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14. Indisputedly, one CR Case under the Domestic Violence Act, being CR Case No. 1320/2025; is also pending in the Court of District Judge, Sonitpur at Tezpur; wherein, the respondent in the present petition, is also contesting. And as such it would not be inconvenient to him to contest the present proceeding at Tezpur. This court has also considered the submission of Mr. Chetry, the learned counsel for the respondent to transfer the case to the Courts at Nagaon, which would be convenient for both the parties. But, in that event also, the problem of engaging different sets of lawyers may arise. Further, reconciliation can be effected, if the parties so wishes, even if the case is transferred to the court at Tezpur, from Karbi-Anglong, Diphu.

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15. Thus, having tested the grounds of the petitioner on the touchstone of the propositions of law, so laid down in the case of Menaka Gandhi (supra), and weighing the ‘ balance of convenience’ against the dominus litis, we find that the ‘ balance of convenience’ of the petitioner has outweighed the dominus litis of the respondent herein.

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16. Under the aforementioned facts and circumstances, this Court is of the considered opinion that ends of justice would be meted out if the T.S. (M) Case No. 13/2025, which is pending before the Court of the learned District Judge, Karbi Anglong, Diphu; is transferred to the Court of the learned District Judge, Sonitpur at Tezpur.

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17. Accordingly, the Title Suit, being T.S. (M) Case No. 13/2025, stands transferred to the Court of the learned District Judge, Sonitpur at Tezpur. The learned District Judge, Karbi Anglong, Diphu, is directed to transmit the record of T.S. (M) Case No. 13/2025 to the Court of the learned District Judge, Sonitpur at Tezpur, forthwith; on production of a copy of this order by the petitioner.

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18. In terms of the above, this petition stands disposed of.

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JUDGE

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Smti Mamoli Das @ Mamli Das v. Mononith Das

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Smti Mamoli Das @ Mamli Das v. Mononith Das

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