Sivasubramaniam v. Sivasubramaniam
COURT OF APPEAL.
RANASINGHE, J. AND ATUKORALE, J.
c.; A. APFLICATOON 1359/78—D. C. BADULLA 9699/d.
AUGUST 1, 1980.
Civil Procedure Code, section 10—Transfer of case-—Grounds justifyingsuch order—Mcarting of word "expedient'' in- section 10—JudicatureAct, No. 2 of 1978, section 46.
The petitioner made this application for transfer of a divorce actioninstituted against her in the District Coart, Badulla by her husband,a practitioner in the said Court. The petitioner purported to make thisapplication under section 46 of the Judicature Act, which Act came intoforce only after the application was made. Hence by consent of partiesthe Court heard the application as one made under section 10 of the CivilProcedure Code.
The petitioner supported her application for a transfer on certaingrounds based on the conduct of the respondent in preventing othermembers of the Bar from appearing on her behalf and from being com-pelled thereby to retain counsel from Colombo. She also alleged thatthe respondent had intimidated her witnesses and that she had alsoto suffer tremendous incovenience in having to travel from Dehiwela toBadulla in this case. The petitioner’s allegations were denied in theaffidavits filed on behalf of the respondent.
A party who seeks the transfer of a pending action in Court must adducesufficient grounds to satisfy the Court of Appeal that it is expedient tomake order for its transfer and in this context the word expedient'would mean fit or proper. A transfer would not be ordered on lightgrounds and on a consideration of all the material placed before Courtin the present application, the petitioner had failed to adduce sufficientgrounds for a transfer of this action.
Sivasubramaniam v. Sivasubramaniam (Atukorale, J.)
APPLICATION for a transfer from the District Court, Badulla.
R. D. C. de Silva, for the petitioner.
C. Thiagalingam, Q.C. with K. Thevarajah, for the respondent.
Cur. adv. vuIt.
October 16, 1980.
This is an application made by the petitioner, who is the wifeand a resident of Dehiwala, for the transfer of a divorce actioninstituted by the respondent (the husband) against her in theDistrict Court of Badulla to the District Court/Family Court ofColombo or Mount Lavinia. The action has been filed on 4.4.1977praying for a divorce on the ground of malicious desertion. Thepetitioner has filed answer countersuing the respondent for adivorce on the ground of constructive malicious desertion. Atthe time the present application for transfer was filed in thiscourt, the trial in the divorce action had been fixed for 19.1.1979.However in view of the order made by this court staying furtherproceedings in the action until the final determination of thisapplication, the trial has still not commenced.
The present application for a transfer of the divorce actionhas been filed on 11.12.1978 and has been made, according to thepetition, under section 46 of the Judicature Act, No. 2 of 1978.However, as rightly pointed out by learned counsel for therespondent, this Act, though certified on 211.1978, came intooperation only on 2.7.1979—vide Government Gazette No.40/16 dated 15. 6. 1979. It was therefore not in force on the dateof the filing of the present application. Learned Counsel for therespondent, however, had no objection to the application beingconsidered as one made under section 10 of the CivilProcedure Code. Under this section a party to an actionwhich is pending in any original court may, before trial, applyto this court for the withdrawal of such action from the courtin which it is pending and for the transfer of it for trial to anyother court competent to try the same in respect of its natureand the amount or value of its subject matter. Such an appli-cation may be allowed by this court on being satisfied that suchwithdrawal and transfer are desirable for any of the followingreasons.—
(o) that a fair and impartial trial cannot be had in anyparticular court or place ; or
(b) that some question of law of unusual difficulty islikely to arise; or
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(c) that it is expedient on any other ground.
The section further states that when the action might haebeen instituted in any one of several courts, the balance ofconvenience only shall be deemed sufficent cause for suchwithdrawal and transfer to one of the alternative courts.
Section 46 (1) of the Judicature Act, No. 2 of 1978 (which isnow in force) also makes provision for the transfer by this courtof inter alia, an action pending in any court to any other court,irrespective of whether such other court is one competent totry the action in respect of its nature and the amount or value-of its subject matter, for reasons which are the same asaforementioned. Under section 46 (2) an application for transferof such an action may be made before or after the commence-ment of trial. It will thus be seen that, in so far as a pendingaction is concerned, although section 56 of the judicature Actappears to be wider in scope than section 10 of the Civil Pro-cedure Code, yet the grounds on which this court can order atransfer of such an action are the same under both sections.Learned counsel for the petitioner stated to us that he is seekinga transfer of the divorce action from the District Court of Badullaon the ground of expediency, namely that for the reasons setout in the application of the petitioner it is expedient to transferthe action from the District Court of Badulla.
The petitioner in her original petition and affidavit hasaverred several facts and circumstances which according to herwarrant a transfer of the divorce action- Firstly she states thatthe respondent, who admittedly is a senior attorney-at-lawpractising in Badulla Courts, has repeatedly abused his positionas a practitioner therein to cause difficulties and embarrassmentto her. The acts and conduct of the respondent complained of ashaving cause her difficulties and embarrassment may be summa-rised as follows:—
the respondent asks the lawyers of the Badulla Bar
retained by her why they are appearing against himand alleges that they are interfering with his marriedlife,
the respondent casts abusive and insulting remarks at
the lawyers appearing for her whilst being seatedat the Bar table, and
the respondent has deprived her of retaining counsel
of her choice by refusing to agree to the case beingfixed for trial on dates suitable to her own counsel
Sivasubramaniam v. Sivasubramaniam (Atukorale, J.)
In support of ground (a) aforesaid, the petitioner has in heraffidavit stated that on 15.9.1978 (which was a trial date in theaction) the respondent questioned Mr. Basil de Silva, theattorney-at-law who appeared for her, as to why he wasappearing against him and alleged that he was interfering inhis married life. Mr. Basil de Silva himself in his affidavit HI,which has been tendered to this court together with the res-pondent’s objections, has however denied that the respondentuttered such words to him. He has stated that as Mr. L. S. V.Perera, the registered attorney pf the petitioner, was indisposedon that day he, at the request of Mr. L. S. V. Perera, appearedfor the petitioner. In fact the affidavit of Mr. T. Sri Pathmana-than, another senior practitioner of the Badulla Bar, which hasbeen tendered to this court after the respondent filed h's objec-tions, contains no reference to the respondent having utteredsuch words to Mr. Basil de Silva. It only states that the respon-dent was not on talking terms with Mr. Basil de Silva for sometime after the latter appeared for the petitioner in the absenceof Mr. L. S. V. Perera. Thus apart from the bare statement ofthe petitioner herself there is no material to substantiate thisallegation of the petitioner.
In support of ground (b) aforesaid, namely, that the respon-dent casts abusive and insulting remarks at the lawyers appear-ing for the petition whilst being seated at the Bar table, thepetitioner in her application states that the respondent abusedand after removing his black coat even threatened to assault Mr.Wijaya Perera, attorney-at-law, who was appearing for her inthe maintenance case filed by her against the respondent atBadulla. Thereupon, according to her, the other members of theBar intervened and prevented a fight taking place in courtpremises. The respondent thereby compelled her to withdraw themaintenance case filed by her at Badulla and caused her to file afresh case in Colombo. Mr. Wijaya Perera in h's affidavittendered to court by the respondent with his objections hascategorically denied such an incident and has also stated that-the respondent never attempted to prevent him from appearingfor the petitioner. Mr. T. Sri Pathmanathan in his affidavit hasstated that Mr. Wijaya Perera and the respondent had a quarrelin the District Court of Badulla over an alleged remark by therespondent that Mr. Wijaya Perera was indulging in immoralactivities and that he himself intervened and restrained Mr.Wijaya Perera from taking any action over this alleged remark.He however does not depose to a threat of assult on Mr. WijayaPerera by the respondent although the petitioner states that hewas a witness to the incident referred to by her in her affidavit.
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Nor is it clear from Mr. Fathmanathan’s affidavit that theincident referred to by him was one that arose in consequenceof Mr. Wijaya Perera’s appearance for the petitioner. Thereappears to me to be material discrepancies in the versions givenby the petitioner and Mr. Pathmanathan. Furthermore it isclear that Mr. L. S. V. Perera, a very senior practitioner of theBadulla Bar and a JP.U.M. and also a former Crown Proctor,is the registered attorney-at-law of the petitioner in the divorceaction. There is not even a suggestion that the respondent hassought to harass, insult or intimidate him for appearing on behalfof the petitioner.
In regard to ground (c) aforesaid, namely, that the respondenthas deprived the petitioner from retaining counsel of her choiceby refusing to agree to the case being fixed for trial on datessuitable to her own counsel, the petitioner states that the res-pondent did not agree to the action being fixed for trial on any ofthe free dates of her counsel, Mr. Sethukavaler and that the res-pondent got it fixed for trial on a date which did not suit Mr.Sethukavaler. The respondent in his affidavit whilst denyingthat he refused to accommodate Mr. Sethukavaler states thatthe court at Badulla is a combined court and only Mondays andFridays have been allocated for civil work. At least some of thedates suggested by Mr. Sethukavaler happened to be days setapart for criminal work and thus a date suitable to Mr.Sethukavaler could not be given. Moreover since the date oftrial in a case is one fixed by court after taking into considera-tion the dates that are suitable to counsel appearing for theparties, I do not think it would be possible for the respondent,even if he was inclined to do so, to deliberately manipulate adate that is unsuitable to the petitioner’s counsel. In the instantcase it would appear that there were two trial dates, namely,15.09.1978 and 19.01.1979. There is no allegation that the firstdate was unsuitable to the petitioner’s counsel. The second dateis one that was suitable to her counsel, Mr. Vernon Wijetunge,and but for this application the trial would probably havecommenced on that date. Thus the attempts if any, by therespondent to achieve a situation by which counsel of her choicewould not be able to appear for her have proved unsuccessful.
Secondly the petitioner has urged that the respondent hasbeen abusing and threatening her witnesses. In her affidavit shehas stated that that the respondent once telephoned and foundfault with one Mr. Gnanamuttu for collecting her from the busstand and giving her accommodation. Mr. Gnanamuttu is on thepetitioner’s list of witnesses. He in his affidavit (X 3) has stat-
Sivasubramaniam v. Sivasubramaniam (Afukorale, J.)
ed that the respondent rang him up and asked him why he pick-ed her up and gave her accommodation to which he replied thathe and his wife acted in pursuance of a request made over thetelephone by the petitioner’s mother who happened to be inColombo. He further informed the respondent that they wouldhave done the same thing to him if he was in similar circums-tances. There is nothing in this conversation to suggest that therespondent has abused or threatened Mr. Gnanamuttu.
The third ground on which the petitioner seeks a transfer of thedivorce action is for the reason that she has to incur tremendousinconvenience as a result of it being heard in Badulla and herhaving to travel there from Dehiwela. There is sufficent mate-rial to show that the petitioner’s mother and sister are residentin Badulla. She is therefore put to no inconvenience in seekingaccommodation at Badulla whenever she has to attend court inconnection with the case. Once she reaches Badulla her motherwould no doubt provide her with comfortable accommodation.The only inconvenience that may be caused to her is probablya little physical discomfort in travelling to Badulla. But suchdiscomfort is inevitable when one has to travel by public trans-port. The petitioner has also stated that she has to undergoinconvenience in making arrangements for the minor childrento be looked after in her absence. Here again there is materialto show that the petitioner did make such arrangements for thecare and custody of the children when she was away in Indiafor about 10 days. She should therefore have no difficulty what-soever to make similar arrangements for a couple of days at themost until she returns from Badulla. In this connection it issignificant to note that twelve of the thirteen witnesses in thepetitioner’s list of witneses are residents of Badulla whilst theother witness is out of, the Island. All the witnesses of therespondent except one are also from Badulla-
Finally the petitioner has also stated that as a result of thecase being fixed at Badulla litigation has been made unbearablyexpensive to her since she is compelled to take counsel fromColombo who have to charge her much higher fees than theywould have charged had the case been fixed for trial at MountLavinia, where the petitioner is resident. No doubt fees chargedby Colombo counsel to appear at Badulla would be compara-tively higher than those charged by them to appear in Colomboitself. But the fees charged by Colombo counsel vary with theindividual counsel and would depend on the particular counselwho is retained to appear. Further there are also counsel avail-able in other courts closer to Badulla than Colombo who may
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be retained at less expense. There is also material to show thatthe petitioner is possessed of valuable assets which provide herwith a regular income. She certainly does not appear to be sopoor as to be unable to raise funds to retain counsel even fromColombo.
A party to an action who seeks a transfer of a pending actionfrom the court in which it is pending to another court mustadduce sufficient grounds to satisfy us that it is expedient tomake order for its transfer. ' Expedient ’ in this context, in my.view, means fit or proper. A transfer would not be ordered onlight grounds. On a careful consideration of all the relevantmaterial placed before us I am of the opinion that the petitionerhas failed to adduce sufficient grounds for a transfer of thedivorce action from the District Court of Badulla. The presentapplication is therefore refused with costs.
RANASINGHE, J.—I agree.
Sivasubramaniam v. Sivasubramaniam