ORDER
P.K. Tripathy, J.
1. Heard learned counsel for the petitioner.
2. This revision is directed against the order passed by learned District Judge, Balasore on July 18, 2002 in Misc. Case No. 17 of 2002. a proceeding under Section 24 of the Code of Civil Procedure. 1908 (in short 'the Code'). After service of notice on the opposite party he has not appeared to contest the Civil Revision Petition.
3. Petitioner is the respondent and the opposite party is the applicant in Title Suit No. 750 of 2001 instituted for the relief under Section 9 of the Hindu Marriage Act, 1955. That suit has been instituted and pending in the Court of Civil Judge (Senior Division), Balasore. Inter se relationship between the petitioner and the opposite party as the wife and husband is not in dispute. When the suit was posted for peremptory hearing, as noted in the impugned order an application for transfer of the suit was moved in the Court of District Judge, Balasore. After hearing both the parties learned District Judge rejected that application under Section 24 of the Code for transfer of the suit from the Court of Civil Judge (Senior Division). Balasore to the Court of Civil Judge (Senior Division) at Bhadrak.
4. Petitioner's contention is that she is much inconvenienced by travelling alone and carrying her minor child from her place of stay to the Court at Balasore by changing the conveyance at three places. Learned District Judge did not find that to be an adequate reason to allow the application for transfer. Learned District Judge on the basis of the contention advanced in the application under Section 24 of the Code noted that for attending the Court whether at Bhadrak or at Balasore she along with her child has to undertake a journey and to change the conveyances and in that process the distance from her place of stay to Balasore is higher by about 50 K.Ms. On the other hand, the opposite party (husband), who has instituted the suit, is to come from Huguli in the State of West Bengal, he would be required to travel a longer distance of 70 K.Ms. with change of conveyance at the Railway-station and that inconvenience of the husband cannot be ignored. After taking note of such facts and circumstances which is not in dispute, learned District Judge also suggested remedies available to the petitioner for disposal of the suit at Balasore. It is suggested therein that she may adduce her evidence by filing affidavit or may get herself examined through Commission and therefore she may not be required to physically appear in the Court at Balasore for disposal of the suit. Apart from that, learned District Judge also apprehended that matrimonial proceeding which is ready for disposal in the Court of Civil Judge (Senior Division), Balasore may get delayed in its disposal if that would be transferred to the Court of Civil Judge (Senior Division), Bhadrak. On the aforesaid grounds the application under Section 24 of the Code was rejected.
5. In the pursuit to get the relief of transfer of the suit petitioner follows the toe of the reasons advanced by the Court below and relies on the citations to counteract each of the reasonings assigned by the District Judge. After going through the citation, this Court finds that though the ultimate result in such reported cases have turned in favour of the applicants (either under Section 24 or 25 of the Code) but on facts and circumstances they are glaringly distinguishable from the case at hand.
In the case of Hari Charan Mitra v. Santosh Kumar Mitra 40 (1974) C.L.T. 1096 while distinguishing between the scope and applicability of the provision in Section 22 vis-a-vis 24 of the Code and recording the ratio that mere inconvenience of the party shall not be a ground for transfer of the suit inter alia, this Court observed that an application for transfer can be filed at any stage.
In the case of Manisha Singh Deo v. Bidyadhar Singh Deo*, 83 (1997) C.L.T, 440 the fact before this Court was that two proceedings under the Hindu Marriage Act were pending at two different Courts situated at a long distance from each other i.e., one Court at Bhubaneswar and the other at Jeypore in the district of Koraput. On the own saying of the husband/opposite party the petitioner/wife was insane. Therefore, considering such circumstances, this Court allowed the application under Section 24 of the Code. In that case on transfer of the case to the Court at Bhubaneswar the wife/petitioner was not required to make any journey. It be remembered that in the present case, petitioner has to make a journey, be it the Court at Balasore or at Bhadrak.
In the cases of Archana Singh v. Alok Pratap Singh** (2000) 3 SCC 744 and Sumita Singh v. Kumar Sanjay and Anr., AIR 2002 SC 396. inter state transfer of matrimonial proceedings were allowed because the wife/applicants were to travel long distance of above thousand kilo metres. As noted above such is not the fact in the case at hand.
A decision should not be cited if that is of no assistance to decide the issue.
6. Keeping in view the admitted facts which is borne out from the record (the impugned order) this Court finds that the husband/opposite party is per his own saying is staying at Huguli and he is to make a journey to participate in the proceeding be it at Balasore or at Bhadrak. A distance of 70 K.Ms. more for reaching at Bhadrak Court may not be of that inconvenience in comparison to the inconvenience which the petitioner has expressed relating to change of conveyance at three places to board the buses for reaching at Balasore. Admittedly, the petitioner is a young woman aged 25 years and she is to be accompanied by a child aged about two years. Notwithstanding the fact that Section 19 of the Hindu Marriage Act, 1955 allows the option to the applicant to institute the suit at any of the three places enumerated therein and the Court at Balasore has the local jurisdiction to decide the issue but at the same time Section 24 of the Code authorises the Court to pass order of transfer of the suit appeal or other proceedings in justifiable case and for the ends of justice. If the opposite party would have been staying at Balasore. then perhaps this Court would not have considered the prayer of the petitioner for transfer because of the settled principle of law, as stated in the case of Hari Charan (supra) so also in the case of Dr. Subramaniam Swamy v. Ramakrishna Hegde, AIR 1990 S.C. 113, that mere convenience of one of the parties would not be a ground for transfer of a suit or proceeding.
7. In the impugned order learned District Judge has also noted the feeling of the opposite party regarding the apprehension of being manhandled at Bhadrak by the relatives of the petitioner. Learned counsel for the petitioner states that there is no basis for such apprehension. However, petitioner does not state that she has no relative at Bhadrak. Once she has some relatives at Bhadrak, then the apprehension in the mind of the opposite party cannot be regarded as unreasonable though it can be commented as unfounded.
8. Therefore, taking into consideration the aforesaid facts and circumstances and the discretion which is available to this Court the impugned order is set aside and the following order is passed :
(i) O.S. No. 750 of 2001 pending in the Court of Civil Judge (Senior Division), Balasore shall be transferred to the Court of Civil Judge (Senior Division), Bhadrak within a period of three weeks from the date of receipt of a copy of this order in that Court and in that respect petitioner shall produce a certified copy of this order in the Court of Civil Judge (Senior Division), Balasore by 21.4.2003;
(ii) Civil Judge (Senior Division), Bhadrak on receipt of the record on transfer shall issue notice to the opposite party through registered post with Acknowledgement Due at the cost of the petitioner fixing a date of hearing of the suit. After service of such notice hearing of the suit shall be earnestly undertaken and it be completed expeditiously;
(iii) On his appearance at Bhadrak if the opposite party shall face any hurdle of being manhandled or harassed by any of the relatives or hired elements, then he shall report the matter to the Police and as well he may file an application for re-transfer of the suit to the Court at Balasore. In that respect, if the District Judge shall be factually satisfied about any attack or harassment to the opposite party, then he may pass order for transfer the suit to the Court at Balasore notwithstanding the above order of transfer passed by this Court;
(iv) During the pendency of the suit at Bhadrak if on the dates of hearing the petitioner (wife) shall adopt any dilatory tactics for delaying in disposal of the suit or to harass her husband then she shall be directed to bear the cost of opposite party's journey and the expenditure of the witnesses. If she shall fail to pay the same, then it will be open to the opposite party (husband) to apply before the District Judge for transfer of the suit and that shall be appropriately be considered by learned District Judge notwithstanding this order of transfer. On the other hand, at the stage of hearing of the suit if the petitioner shall co- operate and the opposite party shall seek for adjournments for no good reason, then learned Civil Judge (Senior Division), Bhadrak shall do well to saddle exemplary cost on the opposite party to disuade him from delaying disposal of the suit.
9. Learned District Judge, Balasore while exercising jurisdiction under Section 24 of the Code should have maintained balance and equity between the parties by due and proper exercise of jurisdiction vested in him and could have passed such an order. Under such circumstance, this Court finds that learned District Judge failed to exercise the jurisdiction properly and therefore his order is set aside and the above conditional order of transfer of the suit is passed.
The Civil Revision Petition is allowed accordingly.