Gauhati High Court
Page No.# 1/ vs Smt. Rupjyoti Borah on 20 February, 2026
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
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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
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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.
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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
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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.# 6/11order 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.# 7/11consequent 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;
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(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
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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
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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
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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
