Page No.# 1/11 GAHC010278282025 2026:GAU-AS:2628 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Tr.P.(C)./97/2025 DWIPAYAN DAS SON OF LATE SACHINDRA CHANDRA DAS, RESIDENT OF VILLAGE- KONABARI, NEAR BISHNU MANDIR, JAGIROAD, P.O. AND P.S. JAGIROAD, DISTRICT- MORIGAON, ASSAM 782410. VERSUS SMT. RUPJYOTI BORAH WIFE OF SRI DWIPAYAN DAS, RESIDENT OF VILLAGE - RAJA MELA PATH, BHUMURAGURI, JAGIROAD, DISTRICT- MORIGAON, ASSAM - 782410, PRESENTLY RESIDING AT LAKHIMI PATH, HATIGAON, GUWAHATI, ASSAM, PIN- 781038. Advocate for the Petitioner : MR G BHARADWAJ, MR B DEORI Advocate for the Respondent : MR A KAKOTI, J PEGU,MS S BORA Page No.# 2/11 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 20.02.2026 Heard Mr. F. Faridi, learned counsel for the petitioner. Also heard Mr. A Kakati, learned counsel for the respondent. 2. In this petition, under Section 24 of the Code of Civil Procedure, the petitioner, who happens to be the husband of the respondent; has prayed for transferring the F.C. (Civil) Case No. 1432 of 2025, pending before the Court of the learned Principal Judge Family Court No. 2, Kamrup(M), Guwahati to the Court of the learned District Judge, Morigaon. 3. Mr. Faridi, learned counsel for the petitioner submits that the petitioner got married with the respondent on 17.02.2019 at Jagiroad and thereafter, they started their conjugal life at the matrimonial home, at Konabari Village, Jagiroad. Thereafter, they had shifted to Guwahati and started living in a rented apartment. The respondent completed her M.Sc. in the year 2020 and she started searching for a job. She got the job of School Teacher at Chandrapur, Guwahati. The behavior and attitude of the respondent towards the petitioner has changed after joining her service. Thereafter, marital discord surfaced between them and the respondent left the matrimonial home in the month of September 2024 and did not return. The petitioner has served legal notice to the respondent but the same failed to evoke any response. Then the petitioner had instituted one Title Suit (R) No.09/2024, before the Court of learned District Judge, Morigaon for restitution of conjugal right and in the said proceeding the respondent had failed to turn up despite service of notice for which the Page No.# 3/11 case proceeded ex-parte and ultimately ex-parte judgment and decree was passed on 25.07.2025. Mr. Faridi further submits that the respondent then filed an application for setting aside the ex-parte judgment and decree dated 25.07.2025, under Order IX Rule 13 CPC and also challenged the executability of the decree passed in Title Suit (R) No. 09 of 2024 by filing an application under Section 47 CPC and the said petitions are pending before the court of learned District Judge, Morigaon for consideration. 3.1. Mr. Faridi also submits that the marriage between the parties was solemnized at Jagiroad in the district of Morigaon, Assam and the dispute and separation happened within the territorial limits of the jurisdiction of Morigaon Court and since two applications are also pending between the same parties and since the dispute between the parties in the cases pending before the Court of learned District Judge, Morigaon and of F.C. (Civil) Case No. 1432 of 2025, pending before the Court of the learned Principal Judge Family Court No. 2, Kamrup(M), Guwahati may be transferred to the Court of the learned District Judge, Morigaon for convenience of the parties and also for effective adjudication of the dispute between the parties. He also submits that in a proceeding before the Family Court the parties are required to appear on each and every date but in a proceeding before the Court of District Judge, the parties not required to appear on each and every date and they may be represented by their engaged counsel and since the petitioner is serving in Canara Bank he is not in a position to contest the proceeding initiated by the respondent in Family Court at Guwahati by appearing on each and every date. Referring to a decision of Hon’ble Supreme Court in N.C.V. Page No.# 4/11 Aishwarya vs. A.S. Saravana Karthik Sha reported in 2022 SCC OnLine SC 1199, Mr. Faridi submits that when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions. Under such circumstances Mr. Faridi has contended to allow this petition. 4. Per contra, Mr. Kakati, learned counsel for the respondent, has vehemently opposed the petition. He submits that the respondent has been serving as School Teacher in Government High School at Chandrapur, Guwahati and she also resided presently at Guwahati and as such it is not possible to contest the proceeding at Morigaon. He also submits that due to such inconvenience the respondent could not contest the proceeding of Title Suit (R) No. 09 of 2024 at Morigaon though now she has filed application for vacating the ex-parte judgment and decree there. Mr. Kakati also submits that both the parties are serving and also residing at Guwahati and as such Guwahati is the convenient place for both the parties. Mr. Kakati also pointed out that the petitioner has been facing some criminal cases also at Guwahati and if he can face the said proceeding at Guwahati, he can very well contest the present proceeding also in the Family Courts at Guwahati. He also submits that though Section 13 of the Family Court Act provides that no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner, yet under the proviso of the said Section if the Family Court considers it necessary in the interest of justice, it may seek the Page No.# 5/11 assistance of a legal expert as amicus curiae, and as such the contention of the petitioner is not sustainable. Under such circumstances, Mr. Kakati has contended to dismiss the present petition. 5. Having heard the submissions of the learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and I have also gone through the relevant provision of law. 6. Section 24 of the C.P.C. provides for transfer of a suit. It reads as under:- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage (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 (iii) 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 1[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an Page No.# 6/11 order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes 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. It the instant case, the applicable provision is 24(1)(ii) of CPC. Before a discussion is directed into the issue, it would be in the interest of justice to understand the principles, governing transfer of cases, presently occupying the field. 8. In the case of Indian Overseas Bank vs. Chemical Construction Company, reported in (1979) 4 SCC 358, while dealing with considerations that has to be taken into account for transferring a case, the Hon’ble Supreme Court has held as under :- “16. The principle governing the general power of transfer and withdrawal under Section 24 of the Code is that the plaintiff is the dominus litis and, as such, entitled to institute his suit in any forum which the law allows him. The court should not lightly change that forum and compel him to go to another court, with Page No.# 7/11 consequent increase in inconvenience and expense of prosecuting his suit. A mere balance of convenience in favour of proceedings in another court, albeit a material consideration, may not always be a sure criterion justifying transfer. 17. As compared with Section 24, the power of transfer of civil proceeding to another court, conferred under the new Section 25 on the Supreme Court, is far wider. And, so is the amplitude of the expression, “expedient in the interest of justice” which furnishes a general guideline for the exercise of the power. Whether it is expedient or desirable in the interest of justice to transfer a proceeding to another court, is a question which depends on the circumstances of the particular case.” 9. There is, however, unanimity of opinion that ‘balance of convenience’ is the prime consideration for transfer of a suit. The expression "balance of convenience" has inspired profound legal thought and has acquired the gloss of many judicial interpretations. Restated in simple terms, it is a question of fact in each case. ‘Balance of convenience’ is neither the convenience of the plaintiff alone nor of the defendant alone, but the balance of convenience of both. In determining the balance of convenience for the trial of a suit, the Court has to take into consideration the following:- “(1) Convenience or inconvenience of the plaintiff and the right of the plaintiff to choose his own forum; (2) Convenience or inconvenience of the defendant; (3) Convenience or inconvenience of the witnesses required for a proper trial of the suit; Page No.# 8/11 (4) Convenience or inconvenience of the particular place of trial having regard to the nature of the evidence on the main points involved in the suit and also having regard to the doctrine of ‘forum convenience’; and (5) Nature of issues in the suit.” (Ref. Baburam Agarwalla vs. Jamunadas Ramji And Co. reported in AIR 1951 Cal 239) 10. Again, in the case of Mrs. Maneka Sanjay Gandhi and Anr. vs. Ms. Rani Jethmalani reported in (1979 (4) SCC 167), Hon’ble Supreme Court has emphasized the necessity to ensure fair trial, observing as hereunder:- “Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances. 11. Although, Mrs. Maneka Sanjay Gandhi (supra), relates to a Page No.# 9/11 criminal case, yet the context is same i.e. transfer. Therefore, this Court is of the view that the principle enunciated therein can be applied in other cases also. 12. Thus, it appears that though the plaintiff is dominus litis, yet, the aforesaid right can be interfered with by the court on consideration of several factors and out of the same ‘balance of convenience’ is the prime consideration. 13. In the case in hand, it is not in dispute that the petitioner is presently residing in Guwahati and serving at Head Office of the Canara Bank. The petitioner and the respondent both hail from Jagiroad. The respondent is also serving as a Teacher in a School at Chandrapur residing at Guwahati and has instituted the T.S. (M) F.C. (Civil) Case No. 1432 of 2025, before the Court of the learned Principal Judge Family Court No. 2, Kamrup(M), Guwahati. Therefore, ‘balance of convenience’ which is the prime consideration, has to be found in favour of both the parties to pursue T.S. (M) F.C. (Civil) Case No. 1432 of 2025, before the Court of the learned Principal Judge Family Court No. 2, Kamrup(M), Guwahati. Although, Mr. Faridi submits that the in a proceeding before the Family Court the parties have to appear on each and every date, as right to be represented by a legal practitioner is barred by Section 13 of Family Court Act, yet, the said bar is not absolute. If the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae, and as such, the submission of Mr. Faridi has left this Court unimpressed. 14. The other submission of Mr. Faridi, that the respondent has filed an Page No.# 10/11 application for setting aside the ex-parte judgment and decree dated 25.07.2025, under Order IX Rule 13 CPC and also the application under Section 47 CPC regarding the executability of the decree passed in Title Suit (R) No. 09 of 2024, and the same are pending before the court of learned District Judge, Morigaon for consideration and that the said dispute and the dispute in F.C.(Civil) Case No. 1432 of 2025, are of the same nature; yet, said submission is also not acceptable in view of the discussion and finding recorded in the foregoing para. Though, in the case of N.C.V. Aishwarya (supra), the Hon’ble Supreme Court, in para No.10, has held that when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions, yet, the requirement of trying the proceedings by the same Judge, arises when the decision in the cases are interdependent. 15. In the instant case, the learned District Judge, Morigaon, has already rendered the decision in Title Suit (R) No. 09/2024, on 25.07.2025. Now, only the petitions filed by the respondent are pending for consideration. Since, the decision has already been rendered, it cannot be said now, that the same are interdependent and as such, the decision referred by him would not advance his argument. 16. Thus, having tested the grounds of the petitioner on the touchstone of the propositions of law, so laid down in the case of Menaka Gandhi (supra), and weighing the ‘balance of convenience’ of both the parties as well as the dominus litis, of the respondent, both are found in Page No.# 11/11 favour of the respondent herein. 17. Under the aforementioned facts and circumstances, this Court is of the considered opinion that the present petition is devoid of merit and accordingly, the same stands dismissed leaving the parties to bear their own costs. 18. In terms of the above, this petition stands disposed of. JUDGE Comparing Assistant