In the case of State of Maharashtra vs. Narayan, reported in AIR
1983 SC 46 three Judges of the Apex Court in paragraph 26 relied on the ratio
of the decision rendered by Chagla, C.J. at the Bombay High Court. It would
be appropriate to quote paragraph 26 in its entirety, which reads thus :
“26.As to the scope and effect of subs. (3) of s. 51 of the Act,
the question came up for consideration before Chagla, C.J. and
Badkas, J. in Seth Manji Dana v. Commissioner of Incometax,
Bombay, Civil Appeal No.995 of 1957(Bom), decided on July
22, 1958. This was an application by which the validity of
Rule 254 of the Appellate Side Rules was challenged insofar as
it provided that all incometax references presented at Nagpur
should be heard at the principal seat of the High Court at
Bombay, and the contention was that the result of this rule
was that it excluded incometax references from the
jurisdiction of the High Court functioning at Nagpur. In
repelling the contention, Chagla, C. J. observed :
"Legally, the position is quite clear. Under section 51 (3)
of the States Reorganization Act, the Judges sitting at Nagpur
constitute a part of the High Court of Bombay. They are as
much a part of the High Court of Bombay, and if we might say
so distinguished part of the High Court of Bombay, as if they
were sitting under the same roof under which Judges function
in Bombay. All that happens is that the Chief Justice, under
the powers given to him under the Letters Patent distributes
the work to various Judges and various Divisional Benches,
and acting under that power he distributes certain work to the
Judges sitting at Nagpur."
He then continued:
"All that rule 254 does is to permit as a matter of convenience
certain matters to be presented at Nagpur to the Deputy
Registrar. If rule 254 had not been enacted, all matters would
have to be presented at Bombay and then the Chief Justice
would have distributed those matters to different Judges,
whether sitting in Bombay or at Nagpur. It is out of regard and
consideration for the people of Vidarbha and for their
convenience that this rule is enacted, so that litigants should
not be put to the inconvenience of going to Bombay to present
certain matters. Therefore, this particular rule has nothing
whatever to do either with section 51 (3) of the States
Reorganisation Act or with the Constitution." With regard to
Rule 254, he went on to say :
"Now, having disposed of the legal aspect of the matter, we turn
to the practical aspect, and let us consider whether this rule
inconveniences the people at Nagpur. If it does, it would certain
call for an amendment of that rule. Now, there is particular
reason why all Income Tax References should be heard in
Bombay and that reason is this. The High Court of Bombay for
He then concluded :
many years, rightly or wrongly, has followed a particular
policy with regard to Income Tax References and that policy is
that the same Bench should hear Income Tax References, so
that there should be a continuity with regard to the decisions
given on these References. I know that other High Courts have
referred to this policy with praise because they have realised
that the result of this policy has been that Income Tax Law has
been laid down in a manner which has received commendation
from various sources. The other reason is and we hope we are
not mistaken in saying so that the number of Income Tax
References from Nagpur are very few. If the number was large,
undoubtedly a very strong case would be made out for these
cases to be heard at Nagpur."
"After all, Courts exist for the convenience of the litigants and
not in order to maintain any particular system of law or any
particular system of administration. Whenever a Court finds
that a particular rule does not serve the convenience of
litigants, the Court should be always prepared to change the
rule."
The ratio to be deduced from the decision of Chagla, C. J. is
that the Judges and Division Courts sitting at Nagpur were
functioning as if they were the Judges and Division Courts of
the High Court at Bombay.”
MISC. CIVIL APPLICATION NO.341 OF 2013.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Mrs. Sayali wife of Swapnil Kuber,
V
Swapnil S/o. Harischandra Kuber,
CORAM : A.B.CHAUDHARI, J.
DATED : SEPTEMBER 19, 2013.
Citation; 2014(5) ALLMR97
Taken up for final disposal by consent of the rival parties looking
to the nature of the matter at hand.
4.
The undisputed facts are that the applicantwife is residing with
her parents at Nagpur, after having returned from matrimonial house of the
husband. It is also not in dispute that she has filed proceedings for
maintenance and the proceedings under the provisions of the Domestic
Violence Act, in the Courts at Nagpur against the respondenthusband. The
respondenthusband has filed matrimonial proceedings seeking a decree of
nullity of marriage in the Court at Thane.
5.
The present transfer application has been filed by the applicant
wife with a prayer to transfer Hindu Marriage Petition No.109 of 2013 from
the Court of 3rd Civil Judge Senior Division, Thane to the Family Court at
Nagpur before which Petition No. C22 of 2013 is pending.
6.
Mr. B.N. Mohta, learned counsel for the respondenthusband has
raised a preliminary objection to the territorial jurisdiction of this bench of the
Bombay High Court to entertain the present application for transfer on the
following grounds :
i.
The cause of action for filing Hindu Marriage Petition No. 109 of
2013 in the Court at Thane arose at Thane, which petition is
sought to be transferred by the present application. That being
so, the transfer application ought to be filed and tried by the
Principal Seat of the Bombay High Court and not at Nagpur
ii.
Bench.
Sections 22 and 24 of the Code of Civil Procedure read with
Chapter XXXI Rule 1 of the Bombay High Court Appellate Side
Rules, 1960 and further read with definition of the 'High Court'
in Clause 3(25) of the General Clauses Act and the definition of
'Subordinate Courts' in Section 3 of the Code of Civil Procedure
shows that the subordination of the Courts to the High Court will
have to be held on judicial side. If subordination of the Court is
held to be on the judicial side then in that case the Court at
Thane is not subordinate looking to the territorial jurisdiction of
Nagpur Bench of the Bombay High Court. He relied on a
decision of single Judge of the Madras High Court in the case of
K. Kavitha v. Subramanian, reported in AIR 2007(NOC) 1841
(MAD.)
iii)
The witnesses to be examined by the husband are the Doctors
residing at Thane and Mumbai and it will be very difficult for the
respondenthusband to produce witnesses in the event of the
case being transferred to Nagpur Court.
iv)
Respondenthusband is ready to pay the required charges to the
applicantwife and her escort, if any, to undertake to and fro
journey between Nagpur and Thane.
Per contra, Mr. Thakur, learned counsel for the applicantwife, in
7.
response to the preliminary objection relied on the following decisions of the
Supreme Court and Single Judges of this Court. :
M.C.A. No.82/2007 (Mrs.Sandhya Rajesh Chaturvedi/Rajesh
Ramkrishna Chaturvedi,
ii) 2011(1) Mh.L.J. 518 (Anita Balkrishna Barge/Balkrishna Sopan
Barge),
iii) MCA No.320/2011 (Mrs.Priti Chauhan/Madansingh Chouhan),
iv) 2009(1) Mh.L.J. 303 (Sangamitra Vs.Ramakant),
v) MCA No.33/2013 (Sau.Snehal Kothekar/Omprakash Kothekar)
i)
The learned counsel also relied on the decisions of the Supreme
Court for transfer of the case on merits thereof in the cases of (i) Soma
Choudhury Vs. Gourab Choudhaury, reported in (2004) 13 SCC 462) and (ii)
Sumita Singh V. Kumar Sanjay, reported in AIR 2002 SC 396.
8.
Mr. Thakur argued that there is no other go for the applicantwife
but to reside with her parents at Nagpur since she was driven out of the
matrimonial house after two months of her marriage. The proceedings for
domestic violence and for maintenance have already been instituted in the
Courts at Nagpur and the respondenthusband has been making appearance
either personally or through his Advocate in those proceedings. According to
him, the respondenthusband is a Software Engineer earning handsome
remuneration but keeping an eye on the proceedings filed by the wife for
maintenance etc. a defence is being raised that the respondenthusband is not
in any employment now. He submitted that the defence is not plausible. He
argued that the convenience of the wife has to be seen particularly because she
does not have independent source of income and she would be put to hardship
if the proceedings are not transferred from Thane to Nagpur. On the contrary,
according to him, no such inconvenience will be caused to the husband since
he has already been attending the Courts at Nagpur.
9.
I have heard the learned counsel for rival parties for quite
sometime. I have gone through the provisions of law cited by Mr. Mohta and
also various judgments cited by the parties. As to the question about territorial
jurisdiction between the Principal Seat of the benches the question has been
often raised before the Courts.
10.
In the case of State of Maharashtra vs. Narayan, reported in AIR
1983 SC 46 three Judges of the Apex Court in paragraph 26 relied on the ratio
of the decision rendered by Chagla, C.J. at the Bombay High Court. It would
be appropriate to quote paragraph 26 in its entirety, which reads thus :
“26.As to the scope and effect of subs. (3) of s. 51 of the Act,
the question came up for consideration before Chagla, C.J. and
Badkas, J. in Seth Manji Dana v. Commissioner of Incometax,
Bombay, Civil Appeal No.995 of 1957(Bom), decided on July
22, 1958. This was an application by which the validity of
Rule 254 of the Appellate Side Rules was challenged insofar as
it provided that all incometax references presented at Nagpur
should be heard at the principal seat of the High Court at
Bombay, and the contention was that the result of this rule
was that it excluded incometax references from the
jurisdiction of the High Court functioning at Nagpur. In
repelling the contention, Chagla, C. J. observed :
ig
"Legally, the position is quite clear. Under section 51 (3)
of the States Reorganization Act, the Judges sitting at Nagpur
constitute a part of the High Court of Bombay. They are as
much a part of the High Court of Bombay, and if we might say
so distinguished part of the High Court of Bombay, as if they
were sitting under the same roof under which Judges function
in Bombay. All that happens is that the Chief Justice, under
the powers given to him under the Letters Patent distributes
the work to various Judges and various Divisional Benches,
and acting under that power he distributes certain work to the
Judges sitting at Nagpur."
He then continued:
"All that rule 254 does is to permit as a matter of convenience
certain matters to be presented at Nagpur to the Deputy
Registrar. If rule 254 had not been enacted, all matters would
have to be presented at Bombay and then the Chief Justice
would have distributed those matters to different Judges,
whether sitting in Bombay or at Nagpur. It is out of regard and
consideration for the people of Vidarbha and for their
convenience that this rule is enacted, so that litigants should
not be put to the inconvenience of going to Bombay to present
certain matters. Therefore, this particular rule has nothing
whatever to do either with section 51 (3) of the States
Reorganisation Act or with the Constitution." With regard to
Rule 254, he went on to say :
"Now, having disposed of the legal aspect of the matter, we turn
to the practical aspect, and let us consider whether this rule
inconveniences the people at Nagpur. If it does, it would certain
call for an amendment of that rule. Now, there is particular
reason why all Income Tax References should be heard in
Bombay and that reason is this. The High Court of Bombay for
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7 mca341.13
Judgment
He then concluded :
many years, rightly or wrongly, has followed a particular
policy with regard to Income Tax References and that policy is
that the same Bench should hear Income Tax References, so
that there should be a continuity with regard to the decisions
given on these References. I know that other High Courts have
referred to this policy with praise because they have realised
that the result of this policy has been that Income Tax Law has
been laid down in a manner which has received commendation
from various sources. The other reason is and we hope we are
not mistaken in saying so that the number of Income Tax
References from Nagpur are very few. If the number was large,
undoubtedly a very strong case would be made out for these
cases to be heard at Nagpur."
ig
"After all, Courts exist for the convenience of the litigants and
not in order to maintain any particular system of law or any
particular system of administration. Whenever a Court finds
that a particular rule does not serve the convenience of
litigants, the Court should be always prepared to change the
rule."
The ratio to be deduced from the decision of Chagla, C. J. is
that the Judges and Division Courts sitting at Nagpur were
functioning as if they were the Judges and Division Courts of
the High Court at Bombay.”
11.
The decision in the case of K.Kavitha Vs.Subramanian, cited by
Mr. Mohta, is clearly in contrast to the decision of another single Judge of the
Madras High Court in the case of T. Kamatchi vs. S. Murali, reported in AIR
2006 Madras 159 in which the single Judge of the same Court in paragraphs
17 and 18 held as under :
“17. True it is, that the word High Court under Section 3(25)
of the General Classes Act is defined as, 'High Court', used with
reference to Civil proceedings shall mean the highest Civil
Court of appeal in the part of India in which the Act or
regulation containing the expression operates. Although, it
may appear that the Court of appeal for cases in the Districts
lying within the Territorial jurisdiction of Permanent Bench at
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8 mca341.13
Judgment
ig
Madurai would only be the latter, when once the proviso to
Presidential Order above mentioned empowers the Chief
Justice in the Principal Seat at Madras High Court to order for
hearing of any case pending in the Madurai Bench at Madras,
it would only indicate that such power of appellate authority
of the Madurai Bench is likely to be delegated to the Principal
Bench at Madras. This delegation as connoted to the proviso to
the Presidential Order cannot have any meaningful effect
unless and until the Principal Seat is clothes with such power
of appellate authority over the Territorial jurisdiction of
Permanent Bench at Madurai.
To put it in other words if only the Principal Bench at
Madras can hear and decide the matter arising out of Districts
lying in the Territorial jurisdiction of Permanent Bench at
Madurai, the proviso to the Presidential Order can
meaningfully empower the Chief Justice to make order that
any case or class of cases arising in any such Districts shall be
heard at Madras. It is thus the Principal Seat at Madras is
delegated with the power of appellate authority over cases
arising from the Districts allotted to Permanent Bench at
Madurai. When once this element is proved, then both the
Presiding Officers and the Courts of the Districts falling within
the Territorial jurisdiction of the Permanent Bench at Madurai
will be considered as subordinate also to the Principal Seat at
Madras.
18. Moreover, it cannot be said that simply because the
jurisdiction was bifurcated between the Permanent and
Principal Bench, the Courts and the offices in the former's
jurisdiction may not be subordinate to the Chief Justice, who
wields power of administration for both Permanent Bench at
Madurai and Principal Seat at Madras. Thus, the Courts lying
within the jurisdiction of Permanent Bench at Madurai can be
termed as subordinate to the Principal Seat at Madras and in
that sense, the powers vested under Section 24(1)(b) of C.P
.C.
can be exercised by this Court and valid transfer can be made
upon withdrawing the case from the Court at Pattukottai and
transferring the same to that of the Court at Salem.”
In the case of Kamatchi v. G.P Jaiprakash, 1997 AIHC 364
.
another single Judge of Kerala High Court with reference to Section 23 of the
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9 mca341.13
Judgment
Code of Civil Procedure held in paragraph 9, relying on the decision of the
Rajasthan High Court, as under :
ig
“9. With regard to third objection regarding Section 21A of the
Hindu Marriage Act and earlier suit was filed in Palghat. I
refer to the decision of the Rajasthan High Court in Smt.
Sunita Bali v. Ashok Bali, AIR 1987 Rajasthan 79 where it
was held that such technical objections cannot restrict the
power of the High Court in transferring the case. Under
Section 23(3) of the Code of Civil Procedure, it is very clear. It
provides that in case two petitions are pending before different
courts which are subordinate to different High Courts
application shall be made to the High Court within the local
limits of whose jurisdiction the Court in which the suit is
brought is situate. The application for transfer will come
under Section 23(3) of the Code of Civil Procedure. High
Court has got power to transfer the suit pending in a Court
subordinate to it to any other Court. Powers of High Court
under Section 23(3) are not restricted by any of the
technicalities. Objections with regard to the provisions in the
Hindu Marriage Act were also considered by the Rajasthan
High Court and it was held that such powers were not subject
to the procedure adopted by different matrimonial Courts and
the power to transfer petition, in such circumstances,
enumerated in Section 21A cannot be withheld down, in view
of the powers under Section 23(3). As held by the Bombay
High Court in M/s. S.S. Mahalakshmi R. & G. O. Mills v. M/s.
Rajesh Trading Co., AIR 1983 Bombay 486 an order of
transfer under Section 22 is based on balance of convenience.
The fact that one suit was filed earlier is immaterial.”
With reference to the writ jurisdiction of the Bench at Nagpur
similar question arose in the case of Nitin Industrial Association Vs. State of
Maharashtra, reported in 1986(3) Bom.C.R. 174 Division Bench of this Court
held thus in paragraph 6 of the said judgment.
“6. Turning to the next limb of the argument namely that
since the cause of action had arisen in Bombay the writ
jurisdiction of the High Court Bench at Nagpur stands
abridged by reason of the provisions of section 41 of the
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10
Judgment
mca341.13
Bombay Reorganisation Act, 1960 (Act. No.11 of 1960) read
with the provisions of Chapter XXXI of the Bombay High Court
Appellate Side Rules, 1960, we do not see how any enactment
passed by the Parliament and/ or by the State Legislature can
possibly trench upon the jurisdiction conferred on the High
Court by Article 226. In re The Kerala Education Bill, 1957,
A.I.R. 1958 Supreme Court 956, it has been observed as
follows :
ig
“No enactment of a State Legislature can, as long as
that article (i.e. 226) stands, take away or abridge the
jurisdiction and power conferred on the High Court by that
article.”
In view of this, the contention must be negatived. But be that
as it may, although the said two provisions cannot abridge the
jurisdiction, the said two provisions need to be looked at in
their proper perspective. The said two provisions namely,
section 41 of the Bombay Reorganisation Act, 1960 (Act No.11
of 1960) and the provisions of Chapter XXXI of the Bombay
High Court Appellate Side Rules, 1960 are designed to meet
administrative requirements, and administrative convenience.
Hence it is not that every petition under Article 226 which is
presented to this Bench at Nagpur that needs to be entertained
and regard must be had to these two provisions in the filing of
writ petitions so that the petitions can be dealt with by an
appropriate Bench. However, in so far as this matter is
concerned, in view of the above discussion, it cannot be said
that the Bench at Nagpur has no jurisdiction to try and hear
the petition. ....”
12.
The conspectus of the above decisions to my mind does not
permit making of any definition about the jurisdiction in the manner sought to
be done between the Principal Seat at Bombay and the Benches in the State of
Maharashtra. The objection on that count raised by Mr. Mohta, therefore,
must be overruled.
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11
Judgment
mca341.13
Second issue is about the cause of action. In the case of
13.
Rajasthan High Court Advocates Association v. Union of India, reported in AIR
2001 SC 416 the Apex Court, as to the cause of action, held thus in paragraph
17 :
“17. The expression cause of action has acquired a judicially
settled meaning. In the restricted sense cause of action means
the circumstances forming the infraction of the right or the
immediate occasion for the action. In the wider sense it means
the necessary conditions for the maintenance of the suit,
including not only the infraction of the right, but the infraction
coupled with the right itself. Compendiously the expression
means every fact which it would be necessary for the plaintiff
to prove, if traversed, in order to support his right to the
judgment of the Court. Every fact which is necessary to be
proved, as distinguished from every piece of evidence which is
necessary to prove each fact, comprises in cause of action. It
has to be left to be determined in each individual case as to
where the cause of action arises. The Chief Justice of the High
court has not been conferred with the legislative competence to
define cause of action or to declare where it would be deemed
to have arisen so as to lay down artificial or deeming test for
determining territorial jurisdiction over an individual case or
class of cases. The permanent bench at Jaipur has been
established by the Presidential Order issued under subsection
(2) of Section 51 of the Act. The territorial jurisdiction of the
permanent bench at Jaipur is to be exercised in respect of the
cases arising in the specified districts. Whether the case arises
from one of the specified districts or not so as to determine the
jurisdictional competence to hear by reference to territory
bifurcated between the principal seat and the bench seat, shall
be an issue to be decided in an individual case by the judge or
judges hearing the matter if a question may arise in that
regard. The impugned explanation appended to the Order of
the Chief Justice dated 23rd December, 1976 runs counter to
the Presidential Order and in a sense it is an inroad into the
jurisdiction of the judges hearing a particular case or cases,
preempting a decision to be given in the facts of individual
case whether it can be said to have arisen in the territory of a
particular district. The High Court is right in taking the view
which it has done.”
The submission made by the learned counsel for the respondent
14.
husband that the cause of action for filing matrimonial proceedings in the
Court at Thane arose at Thane and that the same should be treated as cause of
action for the purposes of deciding the present transfer application under
Section 24 of the Code of Civil Procedure, does not appeal to me. The
proceedings of transfer under Section 24 of the Code of Civil Procedure are
based on an independent cause of action namely that the applicantwife in the
instant case is praying for transfer of the case from Thane to Nagpur on
various grounds. The bundle of facts disclosed by her in her application
requesting for such transfer under Section 24 of the Code of Civil Procedure
themselves constitute a cause of action and therefore, it is that cause of action
which is relevant for exercise of powers under Section 24 of the Code. In the
light of cause of action accrued to the applicantwife for transfer of the Hindu
Marriage Petition from Thane, I find that even on the issue of cause of action
the present application for transfer is well maintainable.
15.
The submission made by Mr. Mohta about examination of
witnesses, which the respondent husband wants to produce before the Court,
is equally unsustainable. In the first place, the witnesses who are said to be
the Doctors can be produced before the Court by prior appointment of the
Presiding Officer of the Court, so that the witnesses are not required to go back
without recording effective evidence. Even otherwise, in the wake of
availability of the facility of video conferencing for recording the evidence the
submission made by Mr. Mohta cannot be accepted. Next submission about
the convenience of the wife and inconvenience for the husband has been well
taken care of by the various judgments to say and to quote the decisions in the
case of Soma Choudhury and Sandhya Chaturvedi (supra) would be adequate.
In addition to the fact that the respondenthusband is already appearing in the
proceedings filed at Nagpur in some other cases would certainly answer the
aspect of convenience or inconvenience projected before me by the learned
16.
counsel for the respondenthusband.
The upshot of the above discussion is that the present application
must be allowed. In the result I pass the following order.
ORDER
The Miscellaneous Civil Application No. 341 of 2013 is allowed.
Hindu Marriage Petition No. 109 of 2013 pending on the file of 3rd Joint Civil
Judge Senior Division, Thane is transferred to the Family Court at Nagpur for
hearing along with matrimonial Petition No. C22 of 2013 filed by the present
applicant in the Family Court at Nagpur.
Rule is made absolute accordingly with no order as to costs.
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