IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO 178 of 2011 Date of Decision 22nd December, 2011 __________________________________________________________ Sumiti Chauhan, wife of Sh. Sanjeev Kumar Chauhan, D/o Sh. Uggar Singh, resident of village Solan Gaon, PO. Tehsil and District Solan Himachal Pradesh …..Petitioner Versus Sanjeev Kumar Chauhan, son of Sh. Mohan Lal Chauhan, r/o village Barin, P.O. Barin Mandir, Tehsil and District Hamirpur H.P. …. Respondent. Petition under Section 24(1)(b)(ii) read with Section 151 of the Code of Civil Procedure. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes ___________________________________________________________ For the Petitioner: Mr. Deepak Kaushal, Advocate. For the Respondent: Ms. Kiran Lata Sharma, Advocate __________________________________________________________________ Dev Darshan Sud, J (oral) This petition has been preferred by the wife under Section 24(1) (b) (ii) read with Section 151 of the Code of Civil Procedure praying that the petition instituted by the husband against her which is pending in the Court of learned Additional District Judge, Fast Track Court, Hamirpur being H.M. Misc. Petition No. 07/2011 be transferred to the Court of learned District Judge, Solan. 2. The case as pleaded is that petition for restitution of conjugal rights already stands instituted in the court of learned 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 District Judge, Solan. The second petition instituted by the husband was nothing but a means adopted by him to harass her. The petitioner pleads that she is unable to undertake long journey because of her economic condition and therefore, the case be transferred from Hamirpur. This submission has been opposed by learned counsel appearing for the respondent who submits that transfer of the case from the Court of Hamirpur to any other Court would cause great hardship to him. 3. I have considered the rival contentions of the parties. I do not accept the contention that the petition is a way/means to harass the opposite party. Each one is free to exercise his own rights. 4. In Kulwinder Kaur alias Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and others, (2008)3 SCC 659 the Supreme Court while considering the powers of transfer of proceedings from one Court to other holds: “23. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by courts. They are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; “interest of justice” demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means 3 be treated as exhaustive. If on the above or other relevant considerations, the court feels that the plaintiff or the defendant is not likely to have a “fair trial” in the court from which he seeks to transfer a case, it is not only the power, but the duty of the court to make such order. 26. In the case on hand, the High Court without stating anything whatsoever as to allegations and counter- allegations, without considering the reply submitted by the appellant herein and without recording any reason/ground passed the impugned order transferring the case. The learned counsel for the contesting respondent no doubt submitted that the Court has not observed anything since observations by a High Court one way or the other might prejudice one of the parties to the suit. It is true that normally while making an order of transfer, the court may not enter into merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side. At the same time, however, an order of transfer must reflect application of mind by the court and the circumstances which weighed in taking the action.” (at pp. 664-665) To similar effect is the judgment in DAV Boys Senior Secondary School and other vs. DAV College Managing Committee, (2010)8 SCC 401 holding: “12. Section 25 of the Code itself makes it clear that if any application is made for transfer, after notice to the parties, if the Court is satisfied that an order of transfer is expedient for the ends of justice necessary direction may be issued for transfer of any suit, appeal or other proceedings from a High Court or other civil court in one State to another High Court or other civil court in any other State. In order to maintain fair trial, this Court can exercise this power and transfer the proceedings to an appropriate court. The mere convenience of the parties may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Further illustrations are, balance of convenience or 4 inconvenience to the plaintiff or the defendant or witnesses and reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending. The abovementioned instances are only illustrative in nature. In the interest of justice and to adherence of fair trial, this Court exercises its discretion and orders transfer in a suit or appeal or other proceedings.” (at p. 405-406) Lastly in Nahar Industrial Enterprises Limited vs. Hong Kong and Shanghai Banking Corporation (2009)8 SCC 646 the Supreme Court reiterated the same principle. 5. Taking into consideration the ratio of these cases, it would be in the fitness of things if both the cases are consolidated and tried together at Shimla. It is, therefore, directed that case No. H.M. Misc. Petition No. 07/2011 pending in the Court of learned Additional District Judge, Fast Track Court, Hamirpur and case under Section 9 of the Hindu Marriage Act which is pending for restitution of conjugal rights pending in the Court of learned District Judge, Solan are transferred to the court of Shimla. Parties to appear on 28th June, 2012. The learned District Judge shall endeavour that no unnecessary adjournment is granted and shall proceed with the case expeditiously. December 22, 2011 (Dev Darshan Sud), ms Judge