Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR. JUSTICE G.GIRISH TUESDAY, THE 9TH DAY OF JANUARY 2024 / 19TH POUSHA, 1945 TR.APPEAL(C) NO. 1 OF 2024 AGAINST THE JUDGMENT IN Tr.P(C) 785/2023 OF HIGH COURT OF KERALA APPELLANT: SUJA GEORGE, AGED 46 YEARS W/O.BINU VARKEY, KANCHALAKKAT HOUSE, KAIRADI.P.O, PAYYAMKODE, CHITTUR, PALAKKAD, PIN - 678510 BY ADV V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENTS:
1 BINU VARKEY AGED 49 YEARS S/O.VARKEY, PARAMOOTTIL VEEDU, KARIMKUTTY.P.O, VANDIYAMPATTA, VYTHIRI TALUK, WAYNAD, PIN - 673122 2 P.J.VARKEY JOHN AGED 74 YEARS S/O.JOHN, PARAMOOTTIL VEEDU, KARIMKUTTY.P.O, VANDIYAMPATTA, VYTHIRI TALUK, WAYNAD, PIN - 673122 3 MARY VARKEY AGED 69 YEARS W/O.VARKEY, PARAMOOTIL VEEDU, KARIMKUTTY.P.O, VANDIYAMPATTA, VYTHIRI TALUK, WAYNAD, PIN - 673122 4 JOSE.P.V @ BABU VARKEY, AGED 51 YEARS S/O.VARKEY, PARAMOOTTIL VEEDU, KARIMKUTTY.P.O, VANDIYAMPATTA, VYTHIRI TALUK, WAYNAD, PIN - 673122 5 SALOMI THOMAS AGED 46 YEARS W/O.THOMAS, KADATHINKARA, NOOLPUZHA.P.O, SULTHAN BATHERY TALUK,WAYNAD DISTRICT, PIN - 673592
SRI MATHEW KURIAKOSE FOR RESPONDENTS THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The appellant is the respondent in Tr.P(C) No.785 of 2023 of this Court filed by the respondents for transferring O.P.No.519 of 2023 of Family Court, Palakkad to Family Court, Kalpetta.
2. The appellant filed O.P.No.519 of 2023 before the Family
Court, Palakkad against her husband, father-in-law, mother-in-law, sister-in-law and brother-in-law for the return of gold ornaments and money said to have been entrusted to them at the time of her marriage. The respondents sought transfer of the said case to Family Court, Kalpetta stating the reason that the appellant’s father- in-law and mother-in-law (respondents 2 and 3) are aged 74 and 69 years respectively, besides ailing, and her sister-in-law (respondent No.5) is suffering from cancer.
3. The appellant had strongly opposed the above petition
stating the reason that while fixing the forum for adjudication of matrimonial disputes, priority has to be given to the convenience of wife. She further contended that the 5th respondent had contested panchayat election in the year 2020, which would establish that she is presently having no ailment as alleged. The appellant also stated that she will have to travel about 200 Kms from Palakkad to Kalpetta even for filing an interim application.
4. The learned Single Judge, after considering the rival
contentions raised by the parties and hearing both sides, held that since three out of the five respondents in O.P.No.519 of 2013 are having serious difficulties in travelling from Kalpetta to Palakkad to attend the court proceedings, the transfer sought for, has to be
allowed upon the parameters of balance of convenience. It was further observed that the convenience of the wife cannot be taken as an absolute proposition or inviolable rule and that the power of transfer has to be exercised based on the attendant facts and circumstance of each case, and there cannot be any straight jacket formula, which always enure to the benefit of the wife.
5. In the present appeal, the appellant would contend that
she would be prejudiced by the transfer of case to Family Court, Kalpetta which is 200 Kms away from her parental home, while the Family Court, Palakkad at Alathur is only 12 Kms away from her house. It is further contended that she would have to incur huge expenses for making arrangements of her travel to Kalpetta for attending the court proceedings. The appellant would also allege that the respondents are devising plans to oppress the appellant making use of their high handed influence in the society.
6. When the case was taken up for admission on 09.01.2024, the respondents entered appearance through their counsel.
7. Heard the learned counsel for the appellant and respondents.
8. It has to be stated at the outset that the scope of
interference in a matter of transfer of case ordered by a Single Judge after evaluating the grounds stated thereunder and the objections preferred by the opposite party, is very limited.
9. A Full Bench of this Court in Balan v. Sivagiri Sree
Narayana Dharma Sanghom Trust [2005 KHC 1860] has held
that the discretionary orders passed by the Single Judge in exercise of Section 5(i) of the Kerala High Court Act are not normally interfered with unless the impugned orders are without jurisdiction, contrary to law, or are perverse, and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. In the aforesaid case, the Full Bench of this Court has referred to another Full Bench decision of this court in K.S.Das v. State of Kerala [1992 (2) KLT 358 FB] in which the same principle was adopted.
10. Following the above dictum, a Division Bench of this Court
wherein one among us, Justice Anil K. Narendran presided, had held
in Abraham Thomas Puthooran v. Manju Abraham and Another [2022 (1) KHC 360] that when an appeal is filed under Section 5(i) of the Kerala High Court Act against the order passed under Section 24 of the Code of Civil Procedure by a learned Single Judge, the Division Bench must be reluctant to interfere in the matter unless it is manifestly illegal and erroneous or carrying grave or substantial injustice.
11. As far as the present case is concerned, it could be seen from the order under challenge that the learned Single Judge had enumerated cogent reasons for ordering transfer of O.P.No.519 of
2023 of Family Court, Palakkad to Family Court, Kalpetta, notwithstanding the fact that the appellant herein will have to travel a distance of about 200 kms to attend the proceedings in the case instituted by her for the return of gold ornaments and money. Towards mitigating the hardship espoused by the appellant in the above regard, the learned Single Judge had directed the Family Court, Kalpetta to dispense with the presence of the appellant unless the same is required for the progress of the original petition.
12. Having regard to the above reasoning in the impugned
order, in the backdrop of the law laid down by this Court in the decisions referred above, it is not possible for this Court to interfere with the direction thereunder for the transfer of O.P No.519 of 2023 of the Family Court, Palakkad to the Family Court, Kalpetta.
13. However, taking into account of the expenses which the
appellant would have to incur in connection with her travel from Palakkad to Kalpetta for attending the proceedings in O.P No.519 of 2023, we deem it appropriate to mulct the respondents with the liability to compensate the appellant by making payment of Rs.5,000/- (Rupees Five Thousand only) as costs on each and every occasion, when the appellant had to appear before the Family Court, Kalpetta for the due prosecution of her case.
In the result, while dismissing this appeal, it is hereby ordered
that the respondents, either individually or collectively, shall pay an amount of Rs.5,000/- (Rupees Five Thousand only) to the appellant as costs, whenever she had to appear before the Family Court, Kalpetta for the due prosecution of the case instituted by her for the return of gold ornaments and money from the respondents.
(sd/-) ANIL K. NARENDRAN, JUDGE (sd/-) G. GIRISH, JUDGE jsr