Whether family court has jurisdiction to try petition irrespective of law applicable to parties?

Wherever Family Court is established in such cities the jurisdiction shall vest in the Family Court in view of the provisions of Section 7(1)(b) of the Family Courts Act, 1984. The wording clearly ousts the jurisdiction of the Civil Courts so far as the matters enumerated in the explanation clauses; once the Family Court is established for particular territory. Under Section 7 such jurisdiction over the matters would be irrespective of the law by which the marriage of the couple was governed.

IN THE HIGH COURT OF BOMBAY

Mis. Civil Application No. 265 of 2018 and Mis. Civil Application (ST) No. 32454 of 2018

Decided On: 29.03.2019

 Sweta Milind Hoble Vs.  Milind Anil Hoble

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(5) MHLJ 456

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Whether it is mandatory for court to hear other side prior to transfer of proceeding to Commercial court?

From the aforesaid proposition which has been laid down even from the bare reading of the plaint itself, what has been prayed for is the alleged transaction which has taken place and, there was no issue related to a commercial dispute and, therefore, simply because a transaction of immovable property is questioned the same ipso facto would not constitute commercial dispute and as such the conclusion which has been arrived at by the Court below is found to be perverse, contrary to the provisions of law itself. Hence, such apparent error committed in exercising discretion/jurisdiction deserves to be corrected in considered opinion of the Court.

11. Additionally, the Court is also of the view that at least it was obligatory on the part of the learned Judge to put this fact of issue involving commercial dispute to the parties to the proceedings. Even if no actual hearing is to be given to the parties as stipulated in one of the decisions of this Court since by virtue of Section 15 of the Act automatically the proceedings shall have to be transferred but to arrive at that conclusion it was obligatory on the part of the learned Judge to satisfy himself so succinctly on the basis of averments that dispute of the plaint falls with the purview of Commercial Court Act. It appears that while passing an order of transfer, the learned Judge has committed a serious error in exercising jurisdiction in sending the matter to commercial Court without having satisfied himself about the controversy where it falls within the definition of commercial dispute or not. Valuation of the property is not a sole yardstick to transfer the proceeding to the commercial Court. Hence, this value which has been taken note of is no doubt relevant but that itself is not sufficient enough to transfer the suit to the commercial Court. The requirement of satisfying the issue where it falls within the definition of Section 2(1)(C) of the Act or not ought to have been examined before passing the brief order. Be that as it may, it further appears that what has been exercised by the Court below is a power of transfer. Here is the case in which there is no pleading at all that the property in question is exclusively being used for the commercial purpose and there is also no assertion that it is likely to be used for the exclusive commercial purpose. And as such basic element of commercial dispute is completely missing from the pleading and in that context essentially the learned Judge though not supposed to exercise the power of transfer, still a specific order of transfer is made which prima facie appears to be not within the domain of the learned trial Judge. Essentially, the power of transfer lies with the High Court and District Court by virtue of Section 24 of the CPC and a bare reading of it clearly stipulates that while passing the order of transfer the learned Judge is not invested with the jurisdiction. Hence, ex facie, the order in question suffers from non-application of mind. Hence, the impugned order is not sustainable in the eyes of law.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Special Civil Application No. 1236 of 2019

Decided On: 05.04.2019

 Uday Autolink Pvt. Ltd. Vs. Govindji Becharji Thakor

Hon'ble Judges/Coram:

A.J. Shastri, J.

Citation: AIR 2019 Guj 130

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Whether Chief Judge Small causes court has jurisdiction to transfer case from one court to another?

Whether the Chief Judge of the Small Causes Court could have allowed the Transfer Application No. 294 of 2014 by transferring the proceedings from one Court to another Court in the Small Causes Court. In so far as the powers of the Learned Chief Judge of the Small Causes Court are concerned, they are circumscribed by Section 10 of the PSCC Act, 1882. The said Section 10 of the PSCC Act, 1882 for the sake of ready reference can be gainfully reproduced hereinunder:--

"Subject to such rules, the Chief Judge may, from time to time, make such arrangements as he thinks fit for the distribution of the business of the Court among the various Judges thereof."

A reading of the said Section 10, therefore, discloses that the provision confers upon the Learned Chief Judge of the Small Causes Court an administrative power to make arrangements as he thinks fit for the distribution of the business of the Court amongst the various Judges therein. Now, coming to Section 24 of the CPC, the said provision confers a power to transfer any suit, appeal or other proceedings of the High Court or the District Court either sou-moto or on an application made by any of the parties. The power is therefore, conferred by the said provision is on the High Court or the District Court and the mention of the Chief Judge of the Small Causes Court is conspicuously absent. In view of the fact that the powers under Section 24 of the CPC have not been conferred upon the Chief Judge of the Small Causes Court, the power if any that can be exercised by the Chief Judge of the Small Causes Court is therefore, only under Section 10 of the PSCC Act, 1882. A similar situation had arisen in Smt. Manharbala's case (supra), wherein a party had applied for transfer of the proceedings from one Court to another Court in the Small Causes Court on the ground that the Learned Judge before whom the suit was pending was biased. The said application was allowed by the Learned Chief Judge of the Small Causes Court as a consequence of which a matter had reached this Court by way of Civil Revision Application No. 1405 of 2000. The Learned Single Judge of this Court as indicated above on the touchstone of the provisions of Section 10 of the PSCC Act, 1882 and Section 24 of the CPC came to a conclusion that the Chief Judge of the Small Causes Court is not vested with the power to transfer proceedings from one Court to another Court and that the said power is only vested with the High Court or the District Court. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 11033 of 2014

Decided On: 24.11.2015

 Dadajee Dhackjee & Co. Ltd. Vs. Neelam V. Rajani and Ors.

Hon'ble Judges/Coram:

R.M. Savant, J.

Citation: 2016(5) Bom CR 442

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Whether case can be transferred as per convenience of witness?

I have bestowed my attention to the facts and submissions. The facts are narrated, shorn of un-necessary details, as in this proceeding for transfer it is not necessary to deal with serious contentions which the parties traded in their pleadings in the suit. The plaintiff is a Driver working in APSRTC of Macherla Depot is not in dispute. He brought the suit against the defendants, including the petitioners herein, for partition stating inter alia that the plaint schedule properties are liable for partition being joint family properties. As rightly pointed out by the learned counsel for the plaintiff, the suit for partition can be instituted in a Court within the local limits of whose jurisdiction one of the immovable properties liable for partition is situate. In the case on hand, item No. 1 of the plaint schedule property is situated within the limits or territorial jurisdiction of the Court of the Senior Civil Judge at Gurazala of Guntur District. Even the property mentioned in item No. 2 of the plaint schedule is situated in Nalgonda District. Therefore, the Court at Gurazala is having jurisdiction to entertain and try the suit is not in dispute. Reference may also be had to Section 17 of the Code of Civil Procedure, 1908, which provides that where a suit is to obtain relief respecting immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situated. In Dhannalal v. Kalawatibai and others (MANU/SC/0565/2002 : [2002] Supp. 1 SCR 19) the Supreme Court held as follows: 'Plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction, the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a rule of law excluding access to a forum of plaintiffs choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law.' It is only baldly alleged in the petition that transfer as sought for, if permitted, would be convenient to the witnesses to be examined in the suit, without giving names of the proposed witnesses and their places of residence. Further, the 2nd defendant is a businessman and the 5th defendant who is his daughter is a student. Whereas the plaintiff and the 1st defendant, who is supporting the plaintiff in the present proceeding, are both employed and working respectively as Driver in RTC, Macherla Depot and Teacher in a School at Rentachintala, which are within the local limits of the Courts at Guntur. In the facts and circumstances of the case the petitioners, defendants 2 and 5, cannot be permitted to pick and choose the Court at Ranga Reddy District on the ground that it suits their convenience and seek transfer of the plaintiffs suit, more particularly when they are unable to show any special circumstances to accept their plea. Further, on weighing the conveniences and inconveniences of the parties and the competing probabilities and on consideration of the legal principles applicable, this Court is of the considered view that the choice of the plaintiff deserves to be accepted and shall prevail as the choice lies with the plaintiff to choose the forum best suited to him.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

Transfer Civil Miscellaneous Petition No. 599 of 2016

Decided On: 29.12.2016

Pallerla Srinivasa Reddy and Ors. Vs. Pallerla Subba Reddy and Ors.

Hon'ble Judges/Coram:
M. Seetharama Murti, J.

Citation: AIR 2017(NOC)764 HYD

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Leading judgment of justice Chagla on jurisdiction of bench of HC and principal seat of HC to decide particular matter

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,

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CORAM  :   A.B.CHAUDHARI, J.
DATED    :   SEPTEMBER 19, 2013.
Citation; 2014(5) ALLMR97

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