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Pitambar Padhi and anr. Vs. Smt. Santilata Padhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberM.J.C. No. 133 of 1984
Judge
Reported inAIR1987Ori45; 60(1985)CLT22
ActsCode of Civil Procedure (CPC) , 1908 - Sections 24
AppellantPitambar Padhi and anr.
RespondentSmt. Santilata Padhi and ors.
Appellant AdvocateSk. Rahenuma, ;J.P. Mohanty and ;Sk. Enamur Rahenuma, Advs.
Respondent AdvocateP.V. Ramadas, ;N.C. Nayak and ;M.N. Das, Advs.
Cases ReferredVaman Vasudeo v. Raghunath Ganesh
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........praying for transfer of o.s.no. 93 of 1982 pending in the file of the learned subordinate judge, aska to the court of the learned subordinate judge, first court, cuttack. o.s.no. 93 of 1982 was filed by opposite party no. 1 against the petitioners on 24-11-82 in the court of the learned subordinate judge, aska praying for judicial separation and maintenance. the judicial separation is sought for on the grounds of cruelty, neglect, assault, etc. the petitioners have already appeared and filed their written statement. issues have already been framed and the suit is ready for hearing. after the filing of o.s. no. 93 of 1982 petitioner no. 1 filed o.s. no. 17 of 1983 in the court of the learned subordinate judge, first court, cuttack on 27-7-83 praying for a decree for restitution.....
Judgment:
ORDER

B.N. Misra, J.

1. Petitioner No. 1 is the son of petitioner No. 2 and husband of opposite party No. 1. Opposite parties Nos. 2 and 3 are the minor son and daughter respectively of petitioner No. 1 and opposite party No. 1. Opposite party No. 4 is the father of opposite party No. 1.

2. The petitioners have filed the present application under Section 24 of the Code of Civil Procedure praying for transfer of O.S.No. 93 of 1982 pending in the file of the learned Subordinate Judge, Aska to the court of the learned Subordinate Judge, First Court, Cuttack. O.S.No. 93 of 1982 was filed by opposite party No. 1 against the petitioners on 24-11-82 in the court of the learned Subordinate Judge, Aska praying for judicial separation and maintenance. The judicial separation is sought for on the grounds of cruelty, neglect, assault, etc. The petitioners have already appeared and filed their written statement. Issues have already been framed and the suit is ready for hearing. After the filing of O.S. No. 93 of 1982 petitioner No. 1 filed O.S. No. 17 of 1983 in the court of the learned Subordinate Judge, First Court, Cuttack on 27-7-83 praying for a decree for restitution of conjugal rights. In this suit the present opposite parties 1 and 4 who are the defendants have already filed their written statement.

3. Admittedly petitioner No. 1 and opposite party No. 1 are husband and wife and their marriage was solemnised at Surada on 27-5-74 within the jurisdiction of the learned Subordinate Judge, Aska. Accordingly opposite party No. 1 along with her children has filed O.S.No. 93 of 1982 for judicial separation and maintenance in the court of the learned Subordinate Judge at Aska. It appears from the pleadings that petitioner No. i and opposite party No. 1 had had last resided at Cuttack and accordingly petitioner No. 1 has filed O.S. No. 17 of 1983 in the court of the learned Subordinate Judge, First Court, Cuttack. The two courts at Cuttack and Aska no doubt have jurisdiction to try the two suits by virtue of the provisions contained in Section 19 of the Hindu Marriage Act, 1955, all the same in view of the fact that the two suits involve the same parties and the questions to be decided in the two suits will be substantially the same, it is necessary inthe interests of justice that the two suits should be tried at the same place and by the same Judge. In this context reference may be made to two decisions of this Court reported in AIR 1953 Orissa 46 (Purna Chandra Mahanty v. Samanta Radha Prasana Das) and (1968) 34 Cut LT 483 (Chandrasekhar Tripathy v. Sashibhusan Tripathy. In the former decision it was held :

'This application before us for transfer of the Balasure suit to Cuttack, is made jointly by all the defendants therein and is strongly opposed by the plaintiff. The applicants want the transfer on the ground of balance of convenience to all the parties concerned and for the purpose of a joint trial of the two suits as they involve almost identical questions of fact. This is strenuously opposed on behalf of the plaintiff in the Balasore suit on the ground that such a transfer would be a great hardship to him and involve him in considerable expenses and that the Court ought not to interfere lightly with his choice as to the forum of his suit. It is no doubt a well-established principle that the plaintiff has the choice of his forum so long as the suit is not subject to the defect of want of local jurisdiction and that a suit is not to be transferred from the Court where the plaintiff chooses to institute it, merely to serve the convenience of the defendants.

That is the principle that has been relied on by learned counsel for the respondent before us, citing the cases in 'Madho Prasad v. Moti Chand', ILR 41 All 381 : (AIR 1919 All 397) and 'Diwan Singh v. Arjanshah', AIR 1930 Lahore 944. On the other hand, there can also be no doubt that where there are two suits which raise certain common questions of fact and law, having a substantial bearing on the decision of each of the cases, it is obviously desirable that they should be tried at the same place and by the same Judge. This course is necessary in order to avoid multiplicity in the trial of the same issues and conflict of decisions. When such a situation arises the Court has to consider the balance of convenience, having regard to all the circumstances of the two suits. If any authority were needed for this, it is sufficient to refer to 'Saroj Bashini Debi v. Girija Prosad', AIR 1926 Cal 326; 'Sheo Nandan Lal v. Mangal Chand', AIR 1927 Pat 383 and 'Vaman Vasudeo v. Raghunath Ganesh', AIR 1949Bom 263. Now in the present cases before us, it is the latter considerations that are more applicable as may be seen presently.'

The principles extracted above were followed in the subsequent decision of this Court referred to above. These two decisions have full application to the facts of this case. It may also be noted that O.S. No. 93 of 1982 filed by opposite party No. 1 at Aska was instituted earlier than O.S. No. 17 of 1983 filed by petitioner No. 1 at Cuttack.

4. Upon hearing learned counsel on both sides and on consideration of the facts and circumstances of this case, I hold it will be just and proper that the two suits should be tried at Bhanjanagar instead of Aska or Cuttack. Accordingly, O.S. No. 93 of 1982 pending in the file of the learned Subordinate Judge, Aska and O.S.No. 17 of 1983 pending in the file of the learned Subordinate Judge, First Court, Cuttack are withdrawn and transferred to the court of the learned Subordinate Judge, Bhanjanagar for expeditious trial and disposal. This M.J.C. application is accordingly disposed of but without costs. The L.C.R. be returned for immediate compliance.


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