IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
■ft
\ FRIDAY ,THE TWENTY EIGHTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
I
PRESENT
THE HONOURABLE SRI JUSTICE B SYAMSUNDER
TRANS. CIVIL MISC.PETITION NO: 307 OF 2023
Between:
Cheedella Naga Venkata Kanakadurga, Guna Sangeetha Lakshmi, W/o.
Cheedella Suresh Babu, aged 44 years, Housewife, R/o.D.No. 4-4-15/8,
Grandhi Madhava Ramadevi Nilayam, Near Peruguchettu center, Agraharam,
Eluru, Eluru District. (Erst while West Godavari District)
...PETITIONER
AND
Cheedella Suresh Babu, S/o. Veerajnjaneyulu, aged 47 years, R/o. D.
No. 1-3/4-176A, Vadderlavar! Street, Vidyadharapuram, Vijayawa<#,
_-iir
N.T.R.District
...RESPONDENT
Petition Under Section 24 of the C.P.C. Praying that in the
circumstances stated in the affidavit filed there with, the High Court may be
pleased to order withdrawal of F.C.O.P 988 of 2019 on the file of the court
of Learned Principal Judge, Family Court, Vijayawada, Krishna District and
transfer the same for trail and disposal to the court of learned Judge,
Family Court, Eluru, West Godavari District.
I
lA NO: 1 OF 2023
Petition under Section 151 CPC praying that in the circumstances
statedjij^he affidavit filed in support of the petition, the High Court may be
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pjea^ to grant stay of all further proceedings in F.C.O.P. 988 of 2019 on
;?
k
?tbe.tfiCe ofthe court of Learned Principal Judge, Family Court, Vijayawada.
•••
■f-- ..V
Counsel for the Petitioner : SRI SIVA SANKARA RAO BORRA
Counsel for the Respondent: SRI GHANTA SRIDHAR
The Court made the following:
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THE HON’BLE SRI JUSTICE BANDARU SYAMSUNDER
TRANSFER CIVIL MISCELLANEOUS PETITION
No.307 of 2023
ORDER:
1 have heard learned Counsel for the petitioner Mr.Siva
Sankara Rao, Borra as well as learned Counsel Mr.P.Prabhakar,
representing on behalf of Mr.Ghanta Sridhar, learned Counsel for
the respondent.
2. This is wife’s petition under Section 24 of the Code of Civil
Procedure (in short “CPC”), seeking transfer of FCOP.No.988 of
2019 on the file of Principal Family Court, Vijayawada of Krishna
District to Family Court, Eluru of West Godavari District, on the
ground that she filed FCOP No. 169 of 2023 on the file of Family
Court, Eluru of West Godavari District for restitution of conjugal
rights, and also filed MC No. 168 fo 2023 on the file of Family
Court, Eluru under Section 125 Cr.P.C claiming maintenance
from the respondent and lodged a report before the Station
House Officer, Eluru PS, which is subject matter in CC No.396 of
2023 on the file of Principal Junior Civil Judge’s Court, Eluru,
whereas the respondent/husband filed FCOP No.988 of 2019 on
the file of Principal Family Court, Vijayawada under Section 13
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(i)(ia)(ib) of Hindu Marriage Act, seeking for divorce. The
petitioner submits that she is now living in her parents’ house at
Eluru, and she has to travel 120 kms from Eluru to Vijayawada to
defend divorce petition filed by her husband, and she being a
woman not in a position to bear travel and legal expenses to
prosecute divorce petition filed by her husband. She prays to
allow the petition.
The respondent filed counter-affidavit, denying the
3.
averments in the affidavit of the petitioner. It is the contention of
the respondent that he filed petition in FCOP No.988 of 2019 on
the file of Principal Family Court, Vijayawada, wherein at the first
instance, the petitioner engaged a Counsel, but after that
remained exparte, and then filed petition to set-aside the exparte
Order, which was allowed, and thereafter the petition is coming
up for enquiry, wherein he also filed his chief-examination
affidavit as PW.1 and documents are also marked as Exs.P1 to
P3 and the matter was posted to 19.07.2023 for cross-
examination. The respondent submits that when the matter is
coming-up for cross-examination, the petitioner requested the
Court that she intended to engage another Counsel, and
thereafter she filed petition for restitution of conjugal rights before
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Family Court, Eluru, and then filed this petition, seeking for
transfer to evade to cross-examine him in FCOP No.988 of 2019
pending on the file of Principal Family Court, Vijayawada. It is
also the contention of the respondent that when FCOP No.988 of
2019 on the file of Principal Family Court, Vijayawada is pending.
the petitioner has not filed any petition, but she has chosen to file
petition, seeking for restitution of conjugal rights four years after
filing of the divorce petition as a counter-blast, and lodged a false
report, wherein she managed the Police got it filed charge sheet
on 22.06.2023 within a span of one month. The respondent
submits that his younger sister is mentally retorted, and he is
looking after his old aged mother, who is bed-ridden. He submits
that the petitioner in order to invoke Section 24 of CPC, filed
FCOP No. 169 of 2023 and MC No. 168 of 2023 before Family
Court, Eluru though she is not interested to lead marital life and
not entitled to claim any maintenance, having deserted him seven
years prior to filing of the petition. He prays to dismiss the petition.
4. The learned Counsel, representing both sides have
submitted the arguments at length, supporting their respective
contentions, and after arguing for some time and when this Court
asked about delay in filing transfer petition when the respondent
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filed divorce petition in the year 2019 itself, wherein also enquiry
learned Counsel for the petitioner on
commenced, the
from the petitioner would submit that the petitioner
I
instructions
objection for transfer of FCOP No. 169 of 2023 pending
on
has no
Eluru of West Godavari District to
the file of Family Court
Vijayawada to try along with FCOP
Principal Family Court
No.988 of 2019. Both sides pray to pass necessary orders in view
of CPC.
of powers conferred to this Court under Section 24
this Court
5. Now the point that emerges for consideration of
is:-
Whether FCOP No.988 of 2019 on the file of Principal
be transferred to Family
Family Court, Vijayawada can
of West Godavari District to try along with
Court, Eluru
FCOP No.169 of 2023, or whether FCOP No.169 of 2023
the file of Family Court, Eluru can be
pending on
transferred Principal Family Court, Vijayawada to try
along with FCOP No.988 of 2019?
it would be beneficial
Before going to the merits of the case,
6.
to quote Section 24 of CPC. which reads as under;
“24. General power of transfer and withdrawal:-
notice to
(1) On the application of any of the parties and after
the parties and after hearing such of them as desired to
motion without such notice, the
be heard, or of its own
High Court or the District Court may at any stage-
fK
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(a) transfer any suit, appeal or other proceeding pending
before it for trial or disposal to any Court subordinate to it
and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in
any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court
subordinate to it and competent to try or dispose of the
same; or
(Hi) retransfer the same for trial or disposal to the Court
from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or
withdrawn under sub-section (1), the Court which [is
thereafter to try or dispose of such suit or proceeding]
may, subject to any special directions in the case of an
order of transfer, either retry it or proceed from the point
at which it was transferred or withdrawn.
(3) For the purpose of this section,-
(a) Courts of Additional and Assistant Judges shall be
deemed to be subordinate to the District Court;
(b) “proceeding" includes a proceeding for the execution of a
decree or order.
(4) The Court trying any suit transferred or withdrawn .under
this section from a Court of Small Causes shall, for the
purposes of such suit, be deemed to be a Court of Small
Causes.
(5) A suit or proceeding may be transferred under this
section from a Court which has no Jurisdiction to try it”.
7. A perusal of above referred provision, which makes it clear
that transfer of cases can be ordered by this Court at the instance
of any of the party, or of its own motion if it is expedient and for
It is settled law
interest of justice to avoid conflicting decisions.
that when two matrimonial matters are pending in two different
which have to be disposed of by the same Court to avoid
Courts,
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conflicting decisions {vide ratio laid down by the Hon’ble Apex
Court in N.C.V.Aishwarya vs. A.S.Saravana Karthik in 2022 Live
Law (SC) 627)
Admittedly, the marriage of the petitioner with the
8.
respondent solemnized on 27.04.2016 in a function hall at Eluru,
Hindu rites and customs prevailing in their community.
as per
After that both have lastly resided at Vijayawada, but due to
in her parents’
matrimonial disputes, now the petitioner is residing
house at Eluru, whereas the respondent/husband is residing at
Vijayawada. At the first instance, the respondent/husband filed
No.988 of 2019 under Section 13(i)(ia)(ib) of Hindu
FCOP
cruelty and
Marriage Act, seeking for divorce on the ground of
wherein the petitioner made her appearance, filed
desertion
counter and enquiry also commenced in the said petition. But the
169 of 2023 on
petitioner has chosen to file petition in FCOP No.
Hindu Marriage
the file of Family Court, Eluru under Section 9 of
enquiy in FCOP
Act for restitution of conjugal rights, and after that
No.988 of 2019 has been commenced. The distance between
fK
8
Eluru town and Vijayawada city is not 120 kms, but it is only 60
kms as per the contentions of both sides. As enquiry in FCOP
No.988 of 2019 filed by the respondent already comnnenced, it is
not desirable to transfer the said case to Family Court, Eluru {vide
ratio laid down by the Flon’ble Apex Court in Abhilasha Gupta vs.
Harimohan Gupta in (2021) 09 SC CK 0125 in Tr.Petition (Civil)
No.1027 of 2021, dated 24.09.2021)
After considering the contentions of both sides, to avoid
9.
conflicting decisions in matrimonial proceedings, and in view of
powers conferred on this Court as per Section 24 of CPC, this
Court is of an opinion that FCOP.No.169 of 2023 on the file of
Family Court, Eluru can be transferred to Principal Family Court,
Vijayawada to try along with FCOP No.988 of 2019.
In view of discussion referred supra, there are no grounds
10.
to consider the request of the petitioner to transfer FCOP.No.988
of 2019 on the file of Principal Family Court, Vijayawada to Family
Court, Eluru instead FCOP.No.169 of 2023 on the file of Family
Court, Eluru can be transferred to Principal Family Court,
Vijayawada to try along with FCOP No.988 of 2019.
In the result, this Transfer Civil Miscellaneous Petition is
11.
dismissed. FCOP.No.169 of 2023 on the file of Family Court
Ik
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Eluru of West Godavari District is hereby withdrawn and
transferred to Principal Family Court, Vijayawada to try along with
FCOP No.988 of 2019. The learned Judge, Family Court, Eluru
shall transmit the case records in FCOP.No. 169 of 2023 after duly
indexed to Principal Family Court, Vijayawada as expeditiously
as
possible, within a period of two (02) weeks from the date of
receipt of Orders of this Court in the present petition. Both parties
shall appear before Principal Family Court, Vijayawada
on
25.07.2024 at 10.30 a.m. The learned Judge, Principal Family
Court, Vijayawada shall dispose of FCOP No.988 of 2019 and
petition filed by the petitioner under Section 9 of Hindu Marriage
Act as expeditiously as possible, within a period of six (06)
months from the date of receipt of Orders of this Court in the
present petition. The learned Judge, Principal Family Court,
Vijayawada shall not insist physical presence of the petitionerfor
each and every adjournment in both petitions, if she
engages a
Counsel, and he can insist her presence, as and when required
or at the time of recording her evidence before the Court. The
respondent/husband shall pay a sum of Rs.500/- (Rupees Five
hundred only) to the petitioner/wife whenever she required
to
attend before Principal Family Court, Vijayawada in the said
petitions. The learned Judge, Principal Family Court, Vijayawada
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shall ensure that such payment is made to the petitioner
on every
occasion of her appearance before the Court. No order
as to
costs. Consequently, miscellaneous petitions, if any,
shall stand
closed. Interim Stay if any, granted shall stand vacated.
Sd/- SHAIK MOHD. RAFI
ASSISTANT REGISTRAR
i
//TRUE COPY//
SECTION OFFICER
To,
1. The Judge, Family Court, Eluru, West Godavari District.
2. The Principal Judge, Family Court, Vijayawada, Krishna
District.
3. One CC to Sri Siva Sankara Rao Borra, Advocate [OPUC]
4. One CC to Sri Ghanta Sridhar, Advocate [OPUC]
5. Cheedella Naga Venkata Kanakadurga, Guna Sangeetha
Lakshmi,
W/o. Cheedella Suresh Babu, aged 44 years. Housewife,
R/o.D.No. 4-
4-15/8, Grandhi Madhava Ramadevi Nilayam, Near Peruguchettu
center, Agraharam, Eluru, Eluru District
6. Cheedella Suresh Babu, S/o. Veerajnjaneyulu, aged
47 years, R/o. D.
No. 1-3/4-176A, Vadderlavari Street, Vidyadharapuram,
Vijayawada,
N.T.R. District
7. Three CD Copies
MV
ssb
HIGH COURT
DATED: 28/06/2024
ORDER
Tr.CMP No.307 of 2023
DISMISSING THE Tr.CMP WITHOUT COSTS