transfer of cases

 

APPLICATION TO TRANSFER A CASE FROM ONE COURT TO ANOTHER

Summary:

This case involves an application by the Defendant-Petitioner, Vijaya Hettiarachchi, seeking to transfer a pending divorce and custody action from the District Court of Negombo to the District Court of Nugegoda. The Petitioner contends that he faces threats to his safety due to violent actions from the Plaintiff-Respondent's relatives, and that a fair trial cannot be guaranteed in Negombo. The Plaintiff-Respondent, Ann Ruwani Perera, objects to this transfer, arguing that the allegations of violence are not substantial and that moving the case would cause undue hardship for her and their children.

The Petitioner argues that his life is at risk and he would not receive a fair hearing at the Negombo court due to the involvement of the Respondent's relatives, including an influential police officer. He also notes that a custody action is already half-heard in Nugegoda. The Plaintiff, however, counters that the Negombo court is closer to her residence, and she claims the Petitioner's allegations are exaggerated, referencing a prior incident in which the Petitioner's father was involved in a conflict with her relatives at the Gangodawila District Court.

The court evaluates the case under Section 46(1) of the Judicature Act, which outlines the grounds for transferring cases, including the inability to guarantee a fair and impartial trial. However, the court finds insufficient evidence to prove that the Petitioner would face significant risks or threats in Negombo. The court also considers the potential inconvenience to the Respondent if the case is transferred.

The legal opinions expressed in this case primarily focus on the following key points:

 

1. Transfer of Cases Under Section 46 of the Judicature Act:

The court examined the provisions of Section 46(1) of the Judicature Act No. 02 of 1978, which outlines the grounds under which a case may be transferred. The Petitioner’s request to transfer the case from Negombo to Nugegoda is based on the claim that a fair and impartial trial cannot be had in Negombo due to life-threatening risks. However, the court states that for a case to be transferred under this provision, concrete evidence must be provided to demonstrate that such risks exist and that a fair trial cannot be guaranteed.

 

2.Lack of Sufficient Evidence to Support Transfer:

The court expressed the view that the allegations made by the Petitioner regarding threats to his safety are insufficient. The court emphasized that the Petitioner did not present enough material to substantiate the claim that his life would be in danger or that the trial in Negombo would be unfair. Merely alleging threats or difficulties without presenting solid proof does not meet the threshold for transferring a case.

 

3. Consideration of Inconvenience to Parties:

The court acknowledged the inconvenience that a transfer may cause to the Plaintiff-Respondent and her children if the case were moved from Negombo to Nugegoda. The court takes into account Section 597(1) of the Civil Procedure Code, which allows for matrimonial actions to be filed in the district where the Plaintiff resides. This provision aims to minimize inconvenience to the innocent party in such cases. Thus, the court was mindful of the inconvenience that a transfer would create for the Respondent, especially when there is no sufficient evidence to support the Petitioner’s claim of an unfair trial.

 

4. Emphasis on Fair and Impartial Trials:

While the court acknowledged that ensuring a fair and impartial trial is a fundamental right, it concluded that the circumstances of this case did not support the claim that the Petitioner will be deprived of this right in Negombo. The court emphasized that such claims must be backed by credible evidence and cannot be based on mere allegations of fear or bias without proper substantiation.

 

5. No Costs Ordered:

In its final order, the court refused to grant the application for transfer and did not award costs to either party. This indicates the court’s neutrality and its judgment based on the merits of the application rather than penalizing either party for bringing or opposing the motion.

 

Conclusion:

The court’s legal opinion rests on the principle that any request for case transfer must be substantiated with clear evidence. Allegations of threats or bias, without sufficient proof, cannot justify the transfer of a case. Furthermore, the court takes into account the practical considerations of inconvenience to the parties when deciding whether or not to grant a transfer. Ultimately, the decision reinforces the necessity of upholding fairness and impartiality in judicial proceedings, while ensuring that legal provisions are applied strictly according to the evidence provided.

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