The Court has carefully examined the citations
and relevant part thereof cited by the learned Advocate
for the respondent and is not able to agree with the
submissions made by the learned Advocate for the
respondent. This Court is of the opinion that “other
proceedings” definitely includes execution proceedings.
The Court does not agree that it is only for the purpose
of trial when such proceeding is pending that Section 24
can be resorted to because next to the word, “for trial”
is “or disposal” and therefore, submissions made by the
learned Advocate for the respondent find no favour with
this Court.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR TRANSFER) NO. 520 of 2014
HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
SIMABEN MANJIBHAI RUPANI....Applicant(s)
Versus
HARESHBHAI VALJIBHAI MORADIYA....Opponent(s)
Date : 07/07/2014
Citation; AIR 2015(NOC)75 Guj
1. The applicant-wife-Simaben Manjibhai Rupani is
before this Court praying that:-
“14. (A) Your lordships may be pleased (to
transfer) the proceedings of Darkhast
Application being Civil Darkhast No.9 of 2013
filed in Family Suit (HMP) No.759 of 2008 which
is pending before the Family Court, Surat, be
pleased (to) transfer to the Family Court at
Bhavnagar.”
2. The facts of the case are set out in paras-3,
4, 5, 6, 7 and 8 of the application. The same read as
under:-
“4. Petitioner most respectfully states that
thereafter petitioner filed Criminal Complaint
No.1812 of 2010 on dated 03.03.2010, before the
Chief Judicial Magistrate at Bhavnagar u/s 3
and 4 of the Dowry Act and u/s. 406, 420, 114
and 498(A) of IPC. It is submitted that said
complaint is pending and it kept for crossexamination
of the petitioner. A copy of the
complaint dated 03.03.2010, being Criminal
Complaint no.1812 of 2010, before the Chief
Judicial Magistrate at Bhavnagar is produced
herewith and marked as “Annexure B” to this
petition.
5. Petitioner most respectfully states that
thereafter petitioner preferred application u/s
125 of the Criminal Procedure Code for
maintenance, being Criminal Misc.Application
No.781 of 2010 before the Chief Judicial
Magistrate at Bhavnagar. It is submitted that
thereafter family court was available at
Bhavnagar District and said Criminal
Misc.Application No.781 of 2010 was transferred
to the family court and case is renumbered and
converted in Criminal Misc.Application No.107
of 2013. It is submitted that considering the
application of the petitioner, Ld. Principal
Judge, Family Court Bhavnagar partly allowed
the application of the petitioner and directed
to the respondent to pay Rs.1000/- for
maintenance. A copy of the order dated
31.12.2013 passed by the Ld. Principal Judge;
Family Court Bhavnagar in Criminal Case No.107
of 2013 is produced herewith and marked as
“Annexure C” to this petition.
6. Petitioner most respectfully states that
petitioner, meanwhile also preferred HMP No.120
of 2010, before the Senior Civil Judge,
Bhavnagar for divorce u/s 13 of Hindu Marriage
act-1955 on dated 2010. It is submitted that
thereafter family court was available at
Bhavnagar District and said HMP No.120 of 2010
was transferred to the Family Court, Bhavnagar
and case renumbered and converted in HMP No.77
of 2013. A copy of the application divorce u/s
13 of the Hindu Marriage Act-1955 being HMP
No.77 of 2013 is produced herewith and marked
as “Annexure D” to this petition. It is
submitted that in both the cases which are
pending before the Bhavnagar Court and
respectfully is appeared through his advocate.
7. Petitioner most respectfully states that
respondent preferred petition u/s 9 of Hindu
Marriage Act for Restitution of conjugal rights
before the Family Court at Surat being Family
Suit (HMP) No.759 of 2008. It is stated that
petitioner filed here reply but not came
forward to give her deposition, ultimately
Family Suit (HMP) No.759 of 2008 was allowed on
dated 12.05.2011 and directed to the petitioner
to fulfill her matrimonial obligations and
perform conjugal rights. A copy of the order
dated 12.05.2011, passed by the Ld. Principal
Judge, Family Court, Surat in Family Suit (HMP)
No.759 of 2008 is produced herewith and marked
as “Annexure E” to this petition.
8. Petitioner most respectfully states that
being aggrieved and dissatisfied with the order
passed by the Ld. Principal Judge, Family
Court, Surat, petitioner preferred First Appeal
being First Appeal (Stamp number) No.2144 of
2011, before this Hon'ble High Court. It is
stated that as office objections were not
removed within two weeks First Appeal was stood
automatically dismissed on 12.09.2011. It is
stated that thereafter, advocate for the
petitioner preferred restoration application
with condonation application which was allowed
by order dated 17.07.2012 (Coram: Honourable
Mr.Justice Jayant Patel and Honourable
Mr.Justice C.L.Soni) and further granted two
weeks time for removal of office objections.
It is stated that as office objections were not
removed within two weeks, again First Appeal
was dismissed for non removal of office
objections. It is stated that thereafter
petitioner changed the advocate and taken back
the papers of the First Appeal and now
petitioner engaged present advocate and filed
restoration application with delay condonation
application which is pending.”
3. After the Family Court, Surat, passed an order,
the respondent-husband preferred petition under Section 9
of the Hindu Marriage Act for restitution of conjugal
rights. It it these proceedings which are under
consideration of this Court for being transferred to
Bhavnagar from Family Court, Surat.
4. The Court after hearing learned Advocate
Mr.Acharya for the applicant, issued notice on 24.02.2014
returnable on 09.04.2014. In response to service of
notice, learned Advocate Mr.Samir Afzal Khan appeared for
the respondent-husband.
5. Learned Advocate for the respondent-husband
filed affidavit opposing this MCA for transfer and the
Court considering contents thereof, particularly paras-5
to 8, which are incorporated in order dated 30.06.2014,
adjourned the matter to enable learned Advocate for the
respondent to work-up the point and argue the same.
5.1 Today learned Advocate for the respondent
submitted additional points and submissions in support of
the affidavit in reply.
5.2 Learned Advocate for the respondent relied upon
a decision of the Hon'ble the Apex Court in the matter of
The State of Bihar Vs. Ram Naresh Pandey, reported in AIR
1957 SCA 389. Besides, learned Advocate for the
respondent also relied upon a decision of the Hon'ble the
Apex Court in the matter of Asgarali Nazarali
Singaporewalla Vs. State of Bombay, reported in AIR 1957
SCA 503. Learned Advocate for the respondent next relied
upon a decision of the Hon'ble the Apex Court in the
matter of Vidhyabai Vs. Padmalatha, reported in 2009 (2)
SCC 409, wherein the Hon'ble the Apex Court has
considered earlier decisions in paras-12, 13 and 14.
Learned Advocate for the respondent next relied upon a
decision of the Delhi High Court in the matter of
Dr.Kavita Chaudhri Vs. Ms.Eveneet Singh, reported in
2012(3) KLT SN 1 (C.No.1) : (2012) DMC 1.
5.3 Learned Advocate for the respondent made
submissions with all vehemence to convince this Court on
the point that Section 24 of the Code of Civil Procedure
cannot be invoked by the applicant. In this regard,
learned Advocate for the respondent submitted that
execution proceedings cannot be considered to be pending
for trial and therefore, the Court will have no
jurisdiction to pass any order on an application which is
filed under Section 24.
5.4 Learned Advocate for the respondent submitted
that it is only when any suit, appeal or other proceeding
is pending before the Court, “for trial” then only an
application under Section 24 can be entertained.
6. The Court has carefully examined the citations
and relevant part thereof cited by the learned Advocate
for the respondent and is not able to agree with the
submissions made by the learned Advocate for the
respondent. This Court is of the opinion that “other
proceedings” definitely includes execution proceedings.
The Court does not agree that it is only for the purpose
of trial when such proceeding is pending that Section 24
can be resorted to because next to the word, “for trial”
is “or disposal” and therefore, submissions made by the
learned Advocate for the respondent find no favour with
this Court.
6.1 It is a trite law that when any provision of
law is required to be interpreted by the Court, the
attempt on the part of the Court should be to give a
meaningful interpretation to that provision. In number
of decisions, the Hon'ble the Apex Court has held that
technicalities should not over-power the substantial
justice. In the present case, if this application is not
entertained and if the proceedings pending before the
Family Court, Surat, are not transferred to Family Court,
Bhavnagar, this Court is of the considered opinion that
the applicant will suffer and therefore, to see that
substantial justice is done between the parties, the
present application is required to be allowed.
7. The application is accordingly allowed. The
proceedings of Darkhast Application being Civil Darkhast
No.9 of 2013 filed in Family Suit (HMP) No.759 of 2008
which is pending before the Family Court, Surat, is
ordered to be transferred to the Family Court at
Bhavnagar. Rule is made absolute. No order as to costs.
Direct service is permitted.
(RAVI R.TRIPATHI, J.)
Print Page
and relevant part thereof cited by the learned Advocate
for the respondent and is not able to agree with the
submissions made by the learned Advocate for the
respondent. This Court is of the opinion that “other
proceedings” definitely includes execution proceedings.
The Court does not agree that it is only for the purpose
of trial when such proceeding is pending that Section 24
can be resorted to because next to the word, “for trial”
is “or disposal” and therefore, submissions made by the
learned Advocate for the respondent find no favour with
this Court.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR TRANSFER) NO. 520 of 2014
HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
SIMABEN MANJIBHAI RUPANI....Applicant(s)
Versus
HARESHBHAI VALJIBHAI MORADIYA....Opponent(s)
Date : 07/07/2014
Citation; AIR 2015(NOC)75 Guj
1. The applicant-wife-Simaben Manjibhai Rupani is
before this Court praying that:-
“14. (A) Your lordships may be pleased (to
transfer) the proceedings of Darkhast
Application being Civil Darkhast No.9 of 2013
filed in Family Suit (HMP) No.759 of 2008 which
is pending before the Family Court, Surat, be
pleased (to) transfer to the Family Court at
Bhavnagar.”
2. The facts of the case are set out in paras-3,
4, 5, 6, 7 and 8 of the application. The same read as
under:-
“4. Petitioner most respectfully states that
thereafter petitioner filed Criminal Complaint
No.1812 of 2010 on dated 03.03.2010, before the
Chief Judicial Magistrate at Bhavnagar u/s 3
and 4 of the Dowry Act and u/s. 406, 420, 114
and 498(A) of IPC. It is submitted that said
complaint is pending and it kept for crossexamination
of the petitioner. A copy of the
complaint dated 03.03.2010, being Criminal
Complaint no.1812 of 2010, before the Chief
Judicial Magistrate at Bhavnagar is produced
herewith and marked as “Annexure B” to this
petition.
5. Petitioner most respectfully states that
thereafter petitioner preferred application u/s
125 of the Criminal Procedure Code for
maintenance, being Criminal Misc.Application
No.781 of 2010 before the Chief Judicial
Magistrate at Bhavnagar. It is submitted that
thereafter family court was available at
Bhavnagar District and said Criminal
Misc.Application No.781 of 2010 was transferred
to the family court and case is renumbered and
converted in Criminal Misc.Application No.107
of 2013. It is submitted that considering the
application of the petitioner, Ld. Principal
Judge, Family Court Bhavnagar partly allowed
the application of the petitioner and directed
to the respondent to pay Rs.1000/- for
maintenance. A copy of the order dated
31.12.2013 passed by the Ld. Principal Judge;
Family Court Bhavnagar in Criminal Case No.107
of 2013 is produced herewith and marked as
“Annexure C” to this petition.
6. Petitioner most respectfully states that
petitioner, meanwhile also preferred HMP No.120
of 2010, before the Senior Civil Judge,
Bhavnagar for divorce u/s 13 of Hindu Marriage
act-1955 on dated 2010. It is submitted that
thereafter family court was available at
Bhavnagar District and said HMP No.120 of 2010
was transferred to the Family Court, Bhavnagar
and case renumbered and converted in HMP No.77
of 2013. A copy of the application divorce u/s
13 of the Hindu Marriage Act-1955 being HMP
No.77 of 2013 is produced herewith and marked
as “Annexure D” to this petition. It is
submitted that in both the cases which are
pending before the Bhavnagar Court and
respectfully is appeared through his advocate.
7. Petitioner most respectfully states that
respondent preferred petition u/s 9 of Hindu
Marriage Act for Restitution of conjugal rights
before the Family Court at Surat being Family
Suit (HMP) No.759 of 2008. It is stated that
petitioner filed here reply but not came
forward to give her deposition, ultimately
Family Suit (HMP) No.759 of 2008 was allowed on
dated 12.05.2011 and directed to the petitioner
to fulfill her matrimonial obligations and
perform conjugal rights. A copy of the order
dated 12.05.2011, passed by the Ld. Principal
Judge, Family Court, Surat in Family Suit (HMP)
No.759 of 2008 is produced herewith and marked
as “Annexure E” to this petition.
8. Petitioner most respectfully states that
being aggrieved and dissatisfied with the order
passed by the Ld. Principal Judge, Family
Court, Surat, petitioner preferred First Appeal
being First Appeal (Stamp number) No.2144 of
2011, before this Hon'ble High Court. It is
stated that as office objections were not
removed within two weeks First Appeal was stood
automatically dismissed on 12.09.2011. It is
stated that thereafter, advocate for the
petitioner preferred restoration application
with condonation application which was allowed
by order dated 17.07.2012 (Coram: Honourable
Mr.Justice Jayant Patel and Honourable
Mr.Justice C.L.Soni) and further granted two
weeks time for removal of office objections.
It is stated that as office objections were not
removed within two weeks, again First Appeal
was dismissed for non removal of office
objections. It is stated that thereafter
petitioner changed the advocate and taken back
the papers of the First Appeal and now
petitioner engaged present advocate and filed
restoration application with delay condonation
application which is pending.”
3. After the Family Court, Surat, passed an order,
the respondent-husband preferred petition under Section 9
of the Hindu Marriage Act for restitution of conjugal
rights. It it these proceedings which are under
consideration of this Court for being transferred to
Bhavnagar from Family Court, Surat.
4. The Court after hearing learned Advocate
Mr.Acharya for the applicant, issued notice on 24.02.2014
returnable on 09.04.2014. In response to service of
notice, learned Advocate Mr.Samir Afzal Khan appeared for
the respondent-husband.
5. Learned Advocate for the respondent-husband
filed affidavit opposing this MCA for transfer and the
Court considering contents thereof, particularly paras-5
to 8, which are incorporated in order dated 30.06.2014,
adjourned the matter to enable learned Advocate for the
respondent to work-up the point and argue the same.
5.1 Today learned Advocate for the respondent
submitted additional points and submissions in support of
the affidavit in reply.
5.2 Learned Advocate for the respondent relied upon
a decision of the Hon'ble the Apex Court in the matter of
The State of Bihar Vs. Ram Naresh Pandey, reported in AIR
1957 SCA 389. Besides, learned Advocate for the
respondent also relied upon a decision of the Hon'ble the
Apex Court in the matter of Asgarali Nazarali
Singaporewalla Vs. State of Bombay, reported in AIR 1957
SCA 503. Learned Advocate for the respondent next relied
upon a decision of the Hon'ble the Apex Court in the
matter of Vidhyabai Vs. Padmalatha, reported in 2009 (2)
SCC 409, wherein the Hon'ble the Apex Court has
considered earlier decisions in paras-12, 13 and 14.
Learned Advocate for the respondent next relied upon a
decision of the Delhi High Court in the matter of
Dr.Kavita Chaudhri Vs. Ms.Eveneet Singh, reported in
2012(3) KLT SN 1 (C.No.1) : (2012) DMC 1.
5.3 Learned Advocate for the respondent made
submissions with all vehemence to convince this Court on
the point that Section 24 of the Code of Civil Procedure
cannot be invoked by the applicant. In this regard,
learned Advocate for the respondent submitted that
execution proceedings cannot be considered to be pending
for trial and therefore, the Court will have no
jurisdiction to pass any order on an application which is
filed under Section 24.
5.4 Learned Advocate for the respondent submitted
that it is only when any suit, appeal or other proceeding
is pending before the Court, “for trial” then only an
application under Section 24 can be entertained.
6. The Court has carefully examined the citations
and relevant part thereof cited by the learned Advocate
for the respondent and is not able to agree with the
submissions made by the learned Advocate for the
respondent. This Court is of the opinion that “other
proceedings” definitely includes execution proceedings.
The Court does not agree that it is only for the purpose
of trial when such proceeding is pending that Section 24
can be resorted to because next to the word, “for trial”
is “or disposal” and therefore, submissions made by the
learned Advocate for the respondent find no favour with
this Court.
6.1 It is a trite law that when any provision of
law is required to be interpreted by the Court, the
attempt on the part of the Court should be to give a
meaningful interpretation to that provision. In number
of decisions, the Hon'ble the Apex Court has held that
technicalities should not over-power the substantial
justice. In the present case, if this application is not
entertained and if the proceedings pending before the
Family Court, Surat, are not transferred to Family Court,
Bhavnagar, this Court is of the considered opinion that
the applicant will suffer and therefore, to see that
substantial justice is done between the parties, the
present application is required to be allowed.
7. The application is accordingly allowed. The
proceedings of Darkhast Application being Civil Darkhast
No.9 of 2013 filed in Family Suit (HMP) No.759 of 2008
which is pending before the Family Court, Surat, is
ordered to be transferred to the Family Court at
Bhavnagar. Rule is made absolute. No order as to costs.
Direct service is permitted.
(RAVI R.TRIPATHI, J.)
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