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CASE NO.: Transfer Petition (civil)  262 of 2006

PETITIONER: Geeta Sahu

RESPONDENT: Ravinder Prasad Sahu

DATE OF JUDGMENT: 07/02/2008

BENCH: S.B. SINHA & V.S.SIRPURKAR

JUDGMENT: JUDGMENT                     ORDER TRANSFER PETITION(C) NO.262/2006

               Petitioner is before us seeking transfer of a matrimonial proceeding  initiated by the respondent for obtaining a decree for divorce against her being Suit  No. 447/2006 pending before the Addl.District & Sessions Judge, Tis Hazari Courts,  Delhi to the Family Court at Giridih, Jharkhand.                 Petitioner is residing in village Pachamba, District-Giridih,  Jharkhand. She states that it will be inconvenient for  her to attend the Court  proceedings at Delhi.                  A counter affidavit has been filed on behalf of the respondent  wherein it is stated that as the petitioner did not appear in the proceedings, ex-pate  evidence had been led  and the matter was to come up for final arguments on  20.5.2006. At that stage only this petition for transfer  was filed and stay of further  proceedings was obtained.                 Learned counsel appearing on behalf of the petitioner would urge  that having regard to the wide discretionary power conferred upon this Court in  terms of Section 25 of the Code Civil Procedure, this Court may transfer the  aforementioned Suit No.477/2006 from Delhi to the Family Court at Giridih,  Jharkhand.                 We have noticed hereinbefore that the matter has been heard ex- parte. It is only pending for advancing arguments and pronouncement of judgment.  At this stage even a  petition for setting aside the ex-parte order would not be  -1-

maintainable in view of the decision of this Court in Arjun Singh Vs.Mohindra  Kumar and Ors. - 1964 AIR (SC) 993. It is only when an ex-parte decree passed as against the petitioner, if any, is set aside the  petitioner would be entitled to move an application for transfer.                 Our attention has been drawn to a decision of this Court in Usha  Vs. Palisetty Mohan Rao -2002 (X) SCC 544 wherein an ex-parte decree had been  passed. It appears that on an interlocutory application filed by the petitioner therein,  the ex-parte decree had been set aside and it was in that context the application for  transfer was allowed.                 Reliance has also been placed on Uma Parekh @ Uma Joshi @  Pinku Vs. Ajeet Pareek @ Govind Pareek and Ors. wherein Usha(supra) has been  followed.                 We have our serious reservations about the correctness of the  aforementioned decision as to whether even in exercise of discretionary power  conferred under Article 142 of the Constitution of India, this Court could have set  aside an ex-parte decree passed by the trial Court in a proceeding under Article 25 of  the Hindu Marriage Act, particularly, in view of the fact that by reason thereof the  valuable right of an appeal of an aggrieved party is thereby taken away. However, it  is not necessary to go into the said question in this case, as no ex-parte decree has yet  been passed. No application before this Court has also not been filed.                 For the reasons aforementioned, we do not find any merit in this

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petition. The transfer petition is dismissed subject to the observations made  hereinbefore.