Beruflich Dokumente
Kultur Dokumente
APPELLANT
RESPONDENT
VERSUS
JAYSHREE
J U D G M E N T
C.K. THAKKER, J.
1.
Leave granted.
short
but
interesting
question
of
to
by
transfer
a
High
suits/appeals/other
Court
from
one
Court
3.
The
the
respondent
Marriage
of
Malegaon,
the
Smt.
parties
District
Nasik
Jayshree
was
solemnized
at
in
the
of
that
after
the
Sharma.
State
It is not in
marriage,
both
the
the
husband
and
his
family
members
on
in
case
she
would
be
kept
at
Ujjain
son
Mayank
and
daughter
Malvika
on
permanently
sufficient
reason,
without
depriving
the
proper
husband
or
of
Since
the
respondent-wife
did
not
(ii)
cruelty.
The
appellant
husband
has
The
statement
respondent-wife
controverting
allegations
levelled
appellant-husband.
the
filed
facts
against
and
her
written
denying
by
the
appellant-husband
had
neither
provided
husband
and
his
family
members
was
not
were
made
only
with
view
to
that
the
wife
deserted
the
husband
8.
She
having
also
deprived
refuted
the
the
husband
allegation
of
of
matrimonial
physical
torture.
as
She
well
as
denied
mental
that
cruelty
prestige
of
and
the
jewellery
and
garments
from
her.
husband,
still
he
was
insisting
for
District
Nasik
in
Maharashtra
closed.
Her
separately
brothers
and
were
had
been
maintaining
working
their
own
long
distance
difficult.
She
all
alone
which
also
contended
was
that
very
Ujjain
Criminal
Procedure,
1973
at
Malegaon
for
concerned
with
those
proceedings
in
the
present case.
11.
Immediately
thereafter,
the
wife
Petition
No.
164A
of
2004
titled
Durgesh
Considering
the
matter
nature
of
litigation,
the
was
the parties.
16.
transferring
case
pending
in
Court
The
learned
counsel
for
the
order
passed
by
the
High
Court
is
in
exercise
of
power
under
sub-section
(3)
of
very
difficult
for
the
respondent-wife
to
with
the
said
order.
It
was,
appropriate
on
if
the
we
point,
notice
it
would
the
be
relevant
proceedings
from
one
Court
to
another
10
21.
one
Court
instituted.
in
which
Normally,
such
the
suit
may
defendant
be
cannot
plaintiff
arbitrary,
appropriate
to
choose
absolute
cases,
forum
or
uncontrolled
superior
is
not
and
Court
in
may
may
apply
to
have
the
suit
forum
where
Section
23
provides
the
controversy
reproduced;
in
question
and
may
be
11
transfer
of
any
suit,
appeal
or
other
or
by
Court
suo
motu
(of
its
own
motion).
25.
12
13
Judges
shall
be
deemed
to
subordinate to the District Court.
be
(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transferred or withdrawn under this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.
26.
24
was
very
wide
and
there
was
no
considered
the
question
and
In
the
Statement
of
Objects
and
14
15
29.
by
the
Court
at
any
stage
of
the
Sub-section
(2)
empowers
the
Court
Sub-section
(3)
defines
proceeding
Judges
will
be
deemed
to
be
withdrawn
(3) For the purposes of this section,(a) Courts of Additional and Assistant Judges shall be deemed to be
subordinate to the District Court;
(b) "proceeding" includes a proceeding for the execution of a decree or order.
(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.
(5) A suit or proceeding may be transferred under this section from a Court which
has no jurisdiction to try it.
16
likewise,
states
that
the
expression
Council
circumstances,
to
a
transfer,
suit,
appeal
in
certain
or
other
17
The
section
was
amended
by
the
State
Government
and
which
were
substituted.
36.
Proviso
to
sub-section
(1)
was
Council)
to
exercise
power
by
effecting
18
Court.
The
provision
Law
as
it
Commission
originally
considered
enacted.
It
the
felt
as
exercise
of
such
power
was
It
accordingly
recommended
that
such
The
recommendation
was
accepted.
In
19
Accordingly,
Section
25
was
20
21
40.
position
prior
to
Code
of
Civil
position
after
the
Code
of
Civil
to
Court
subordinate
to
another
High
business
at
Khamgaon
in
West
Berar.
22
its
original
side.
The
application
was
was
that
the
Court
of
Judicial
The
Court
considered
the
relevant
Judicial
Commissioner,
Nagpur
could
not
Court
or
to
other
High
Court
on
its
Original Side.
42.
23
Patna
138
(2)
56
IC
920,
the
transfer
suit
from
Purulia
Court
24
44.
Disagreeing
with
the
view
in
Abu
25
In
P.
Salayandi
Nadar
&
Ors.
v.
It
may,
stated
however,
that
the
be
noted
competency
that
the
of
the
26
petition
was
not
objected
by
the
opposite
party.
50.
for
certain
amount.
filed
an
Sub-Judge
at
Delhi.
The
application
was
recalling
condition
of
the
precedent
order
to
the
contending
that
application
of
the
High
Court
had
no
jurisdiction
to
Court
Court,
not
subordinate
however,
rejected
thereto.
the
The
High
prayer.
27
51.
This
noted
that
Court,
at
the
in
the
order,
expressly
hearing
before
the
High
Taking
into
account
the
above
subordinate
to
different
High
Court
28
decided
the
on
respondent-wife.
concession
on
The
case
was
of
the
behalf
to
that
Court
to
case
had
been
decided
prior
Court
Moreover,
to
the
29
amount
of
Rs.53
lacs.
The
defendant
in
Punjab
&
Haryana
for
permanent
30
be
Section
passed
23(3)
in
read
exercise
with
of
Section
power
151
under
of
Code.
56.
the
31
As
already
stated,
the
Code
was
the
Amendment
Act,
1976.
The
scope
of
State
reading
of
legislative
the
throughout
section
intent.
the
country.
clearly
Plenary
reflects
and
Bare
the
extensive
32
58.
Code.
There
are,
however,
judicial
the
ground
response
statement.
to
of
the
B
cruelty.
summons
then
filed
and
a
appeared
filed
in
written
petition
for
(Nagpur
Bench)
for
transfer
of
suit
no
jurisdiction
to
transfer
suit
33
(3)
of
Section
23
of
the
Code.
The
Court,
therefore,
must
interpret
34
Hyderabad
to
Family
Court,
Indore
35
High
transferring
Court
a
of
case
Andhra
pending
Pradesh
in
by
Court
Considering
the
provisions
of
sub-
High
Court
under
sub-section
(3)
of
If it is not
36
65.
Recently,
in
Lakshmi
Nagdev
v.
37
the
ground
that
no
such
order
could
be
Referring
to
Firm
Kanhaiyalal,
38
Special
reference
may
be
made
to
case,
(wife)
filed
suit
for
filed
Marriage
Court.
divorce
Act,
A
petition
1955
filed
against
transfer
under
A
in
the
Hindu
Rajasthan
petition
under
the
Amendment
Act
of
1976
and
also
39
Code.
The
Court
also
doubted
the
Having
as
considered
amended
from
the
time
to
scheme
of
the
time,
in
our
It is found in Sections 22 to 25 of
power
of
transfer,
Section
23
merely
application
Section
23
is
for
transfer
not
may
substantive
be
made.
provision
40
71.
In
several
our
considered
Courts
subordinate
having
to
one
opinion,
where
jurisdiction
appellate
are
Court,
an
from
another
one
Court
Court
subordinate
subordinate
to
to
it.
it
to
Likewise,
Court,
action
an
may
application
be
taken
by
may
the
be
made
High
and
Court
Court.
subordinate
But
to
where
different
such
High
Courts
Courts,
are
it
is
one
High
Court
has
no
power,
to
Court
subordinate
to
other
High
41
Court.
It
is
only
the
Supreme
Court
(this
Act
of
1976,
have
no
application
The
supports
take.
Code
the
language
view
of
which
Section
we
are
25
also
inclined
to
party,
this
that
On
Court
the
may
application
pass
an
of
appropriate
party
to
move
the
Court
by
It allows
making
an
42
74.
The
matter
can
be
examined
from
or
territorial
exercise
the
limits
beyond
jurisdiction.
which
So
far
it
as
High
transferring
Court
a
case
cannot
pass
an
order
in
Court
pending
the
limitation
as
to
territorial
extraordinary
jurisdiction
by
writ
Court
43
exercise
the
power
throughout
the
The
counsel
for
the
respondent-wife
of
the
Code
should
be
harmoniously
44
High
another
High
approached,
become
Court
to
Court,
Section
nugatory,
Court
subordinate
only
this
23(3)
of
redundant
Court
the
and
to
can
be
Code
will
futile.
No
which
will
make
another
superfluous or ineffective.
provision
It was, therefore,
We
are
contention.
In
unable
our
to
considered
uphold
view,
the
the
Code
is
substantive
provision
which
45
is
complete
Code
dealing
in
our
interpreted
opinion,
in
the
therefore,
manner
with
Section
cannot
suggested
by
be
the
After
the
commencement
of
the
(this
Court),
Parliament
thought
it
Court
to
order
transfer
from
one
High
(3)
of
Section
23
of
the
Code
has
46
neither
been
however,
is
considered
deleted
not
view,
nor
amended.
relevant.
Section
That,
Since
in
is
merely
23
our
a
If the case
namely,
application
and
for
the
also
purpose
for
the
of
making
purpose
of
to
Section
25
of
the
Code.
The
if
such
power
was
with
High
Court
47
Code
as
amended
by
Code
of
Civil
Procedure
that
in
such
cases,
inherent
powers
may
be
cases,
where
there
is
no
express
in
nature,
Section
151
has
no
take
the
case
of
respondent-wife
further.
80.
the
passed
by
the
High
Court
is
not
48
passed
by
the
High
Court,
therefore,
J.
(C.K. THAKKER)
NEW DELHI,
SEPTEMBER 26, 2008.
J.
(D.K. JAIN)