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Vaman Vasudeo Chitaley Vs. Raghunath Ganesh Thakar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 324 of 1947
Judge
Reported in(1949)51BOMLR226
AppellantVaman Vasudeo Chitaley
RespondentRaghunath Ganesh Thakar
Excerpt:
civil procedure code (act v of 1908), section 24-transfer of suit-suit on original side of high court whether appellate side of high court can transfer suck suit to mofussil court.;under section 24 of the civil procedure code, 1908, a bench on the appellate side of the bombay high court can transfer a suit pending on the original side of the court to a court in the mofussil. the court must, however, be satisfied that such a transfer is necessary.;narayan vithal samant v. jankibai sitaram vithal samant, civil application no. 55 of 1915, decided by scott c.j. and batchelor j., on august 11, 1915, (unrep.) laclimandas tulsidas v. the buckingham & carnatic, co. ltd. civil application no. 672 of 1939, decided by broomfield and maeklin jj., on january 17, 1940, (unrep) and gopal..........the petitioner. on july 5, 1946, the petitioner filed a suit no. 820 of 1946 in the court of the civil judge, junior division, poona, claiming a certain declaration and an injunction-a declaration that the opponent had no right to say that rs. 10,000 were deposited with the petitioner and an injunction restraining the opponent from demanding us. 10,000 and from filing a suit against the petitioner for the same. it appears that this application was supported by an affidavit which was declared on behalf of the petitioner as long ago as december 7, 1946, though the application came to be filed on the date april 1, 1947. on september 24, 1946, the opponent filed a summary suit no. 1920 of 1946 against the petitioner on the original side of this court claiming to recover a sum of rs. 10,000.....
Judgment:

Dixit, J.

1. This is an application for transfer of a suit, and in order to understand the nature of the application it is necessary to mention some introductory facts. Those facts as recited in the application are as follows :

2. The petitioner is a resident of Nagpur, while the opponent resides at Poona. On October 17, 1942, an agreement was executed in Bombay by five persons including the opponent and that agreement was accepted by the petitioner. On July 5, 1946, the petitioner filed a Suit No. 820 of 1946 in the Court of the Civil Judge, Junior Division, Poona, claiming a certain declaration and an injunction-a declaration that the opponent had no right to say that Rs. 10,000 were deposited with the petitioner and an injunction restraining the opponent from demanding Us. 10,000 and from filing a suit against the petitioner for the same. It appears that this application was supported by an affidavit which was declared on behalf of the petitioner as long ago as December 7, 1946, though the application came to be filed on the date April 1, 1947. On September 24, 1946, the opponent filed a summary Suit No. 1920 of 1946 against the petitioner on the Original Side of this Court claiming to recover a sum of Rs. 10,000 under the writing dated October 17, 1942. Prior to the filing of the suit the opponent had given notice to the petitioner on August 2, 1945, asking for the return of the amount in question and this notice was followed by another notice which was given by him on June 29, 1946, in which the opponent made a demand for the said amount, to which the petitioner also gave no reply. It will, therefore, be apparent that the petitioner's suit was filed after the two notices referred to above and the opponent's suit was filed thereafter in September 1946.

3. It appears that a person of the name of Bavdekar who is also one of the five persons who executed the above agreement in Bombay in 1942 also filed a Suit No. 1098 of 1945 against the petitioner in the Court of the Civil Judge, Junior Division, Poona.

4. The application now made is that Suit No, 1920 of 1946 pending on the Original Side of this Court should be transferred to a Court at Poona and competent to try the suit. The question, therefore, arises whether we should grant the application as prayed for.

5. It is obvious that if Suit No. 1920 of 1946 is to be transferred to a Poona Court it ought to be transferred to the Court of the Civil Judge, Senior Division, and not to the Court of the Civil Judge, Junior Division, because the amount which the opponent claims at Bombay is a sum of Rs. 10,000 and the Court of the Civil Judge Junior Division, has no pecuniary jurisdiction to try a suit for that amount. However, we shall have to consider whether we should transfer Suit No. 1920 of 1946 in order that that suit may be heard along with Suit No. 820 of 1946 filed by the petitioner in Poona.

6. The present application has been made under Section 24 of the Code of Civil Procedure and if we are disposed to transfer Suit No. 1920 of 1946 pending on the Original Side of this Court to the Court at Poona, we must transfer it to the Court of the Civil Judge, Senior Division. That we can do having regard to the language of Section 24 of the Code. That this Court has power to make the order in the sense applied for is, I think, beyond dispute. There is abundant authority for the view that a Bench on the Appellate Side can transfer a suit pending on the Original Side of this Court to a Court in the mofussil. But the Court must be satisfied that such a transfer is necessary. In this connection reference may be made to the decision in Narayan Vithal Samant v. Jankibai Sitaram Vithal Samant, Civil Application No. 55 of 1915, decided by Scoot C.J. and Batchelor J., on august 11, 1915, (Unrep.) o the decision in Lachmandas Tulsidas v. The Buckingham & Carnatic Co. Ltd., Civil Application No. 672, of 1939, decided by Broomfield and Macklin JJ., on January 17, 1940, (Unrep.) and also to the decision in Gopal Pandharinath Sulakhe v. The Lokamanya Mills Barsi, Ltd. Civil Application No. 1532 of 1945, decided by Bavdekar and Dixit JJ., on April 17, 1946, (Unrep.) Indeed the learned advocate on behalf of the opponent does not dispute the position that this Court has got that power.

7. It only remains, therefore, to consider the question whether the facts of the case justify us in making the order in question. At the outset it is to be borne in mind that both the Poona and the Bombay suits (in this judgment I shall, for the sake of convenience, refer to the suits as Poona and Bombay suits) involve consideration of the agreement of October 17, 1942. They also involve the true construction of that agreement, and it is desirable that the question should be decided by one Court instead of by two Courts. That this is desirable will be apparent from the fact that if the two suits involving the construction of the same agreement are allowed to go on in two different Courts, it is likely that the two Courts may come to different conclusions on the construction of the same agreement. It is most desirable to avoid that result. That is a consideration in favour of the order of transfer. As against that, several considerations have been pointed out on behalf of the opponent.

8. In the first place it is said that the suit which has been filed by the petitioner at Poona is not a bona fide suit. It is said that the opponent gave the petitioner notices in 1945 and in 1946 and certain negotiations were in progress between the petitioner and opponent as regards the repayment of the amount of Rs. 10,000; but all of a sudden the petitioner chose to file a suit in Poona on July 5, 1946. There is some force in this contention. But that circumstance is not, in our opinion, decisive. It often happens that negotiations are in progress between the parties for the settlement of the dispute outstanding between them and not unoften they end without any settlement being made. The more substantial point which has been urged against the application is the contention that the suit which the petitioner has filed in Poona is not maintainable, that it is not bonafide and that accordingly an order of transfer should not, therefore, be made. The learned advocate on behalf of the opponent has relied upon a number of authorities upon that point such as Ramkrishnav. Narayana I.L.R.(1914) Mad. 80 Gopal Das v. Mul Raj A.I.R.[1937] Lah. 389 and Shripatrao v. Shankarrao. (1929) 32 Bom, L.R. 207 The contention is that a suit of the nature filed by the petitioner under Section 42 of the Specific Relief Act is not maintainable inasmuch as it is a suit based upon a contract and that accordingly an order of transfer as prayed for should not be made. If that question is to be decided now, there is an end of the matter, but surely it is not desirable to decide that point at this stage, because if we decide the point now, it will prejudice the petitioner in the pursuit of his remedy to which he is entitled. If the point has any importance it is only from this point of view that the suit which the petitioner has filed at Poona is or is not bonafide. It is to be remembered that the petitioner is a resident of Nagpur. The opponent is a resident of Poona. And the agreement was executed in Bombay. The opponent was justified in bringing the suit on the Original Side of this Court, and if the petitioner chose to bring his suit in Poona where the opponent resides, it can hardly be suggested that his suit is not bonafide. That the suit is or is not maintainable is at this stage clearly irrelevant. We are not, therefore, satisfied that merely because the suit is contended to be not maintainable is by itself a sufficient ground for refusing the application.

9. The next contention taken on behalf of the opponent is that the learned Civil Judge, Junior Division, has held in an order which he made upon an interlocutory application that the suit is not maintainable. That again is a matter with which we are not concerned at the moment. What the petitioner did was that he applied for a temporary injunction in his suit and the learned Civil Judge while dealing with that application had incidentally to consider the question about the maintainability of the suit. He actually refused that application and it appears that from that order refusing the temporary injunction an appeal has been filed in the District Court and that the said appeal is pending. It is urged on behalf of the opponent that it is manifest from the order of the learned Civil Judge that the suit is not maintainable and that, therefore, we should now hold that this transfer is uncalled for. We are again not prepared to accede to that argument.

10. It is also pointed out that the petitioner's proper remedy was to make an application to this Court for stay of Suit No. 1020 of 1946 under Section 10 of the Code of Civil Procedure. That it was open to the petitioner to make such an application cannot be disputed. But merely because he did not make such an application it does not follow that we should, therefore, refuse his present application. In this connection we are again not satisfied that we should refuse the petitioner's application on the ground urged by the learned advocate on behalf of the opponent.

11. The real question to consider is whether the opponent should be deprived of the forum which he has chosen for vindicating his right. That a plaintiff is entitled to file his suit in a Court of his choice which has jurisdiction to try it can hardly be open to objection and it is not suggested on behalf of the petitioner that the opponent could not have filed the suit in Bombay. At the same time it can hardly be disputed that the petitioner could as well file a suit in the Court of his choice and in this instance he has filed the suit at Poona where the opponent resides. But while a plaintiff is entitled to file his suit in a forum of his choice, it must be recognised that the Court should be slow in changing the forum and in compelling the plaintiff to go to another Court and thereby expose him to unnecessary expenses of litigation. It is said that if Suit No. 1920 of 1946 is transferred to the Court at Poona, the opponent will have to pay ad valorem court-fee upon the amount claimed by him, whereas he is not compelled to do so if the suit is filed in Bombay, which he has done and that it would take a longer time for the suit to be decided in Poona than would be the case if the suit is heard in Bombay. The question of expenses is, I think, a material consideration, and if a party chooses to compel his opponent to go to another Court, the Court has to see that the person against whom the order is to be made is not prejudiced. But in this case it is not clear as to whether the expenses will be greater at Poona than they will be in Bombay. It may be that the Court costs may be less in Bombay. As regards the time which will be taken up for the hearing of the suit, that again depends upon various factors such as the arrears accumulated in the Court, and in our opinion that again is not a decisive consideration.

12. The question of convenience is a matter to be considered. It is not decisive though it is a relevant consideration. From this point of view it is a point in favour of the petitioner that the opponent resides at Poona, so that it is a matter of some convenience to him, if the suit is heard at Poona, though he cannot be compelled to have his suit heard at Poona, if he can file his suit in Bombay. But the main consideration which, we think, is decisive of this matter is the fact that there are three different suits brought by the petitioner, by the opponent and by Bavdekar. The petitioner's suit is in Poona; the opponent's suit is in Bombay and Bavdekar's suit is also filed in Poona, and if all these three suits involve the consideration and the true construction of the agreement of October 17, 1942, it is, we think, a more desirable course to adopt if all these three suits are heard by the same Court. The present application seeks only to have the Bombay suit transferred to the Poona Court and there is no application for the transfer of Bavdekar's suit. We are told that that suit has been filed in the Court of the Civil Judge, Junior Division, and that that Court has made an order returning the plaint for presentation to the proper Court and it is said that the proper Court is the Court of the Civil Judge, Senior Division. If the order prayed for is not made, the result will be that the petitioner's suit will be heard at Poona; the opponent's suit will be heard in Bombay and Bavdekar's suit will be heard in Poona either by the Court of the Civil Judge, Junior Division, or by the Court of the Civil Judge, Senior Division. It is necessary to emphasize that this is, in our opinion, not a very satisfactory way of dealing with the suits if it is possible to make an order by which the suits will be heard by the same Court. It is from that point of view that we are disposed to make an order in favour of the applicant.

13. On behalf of the opponent Mr. Parulekar has cited the case in Gefferl v. Bukchand Mohla I.L.R.(1888) 13 Bom. 178 and relying upon the observations at page 182 he contends that the petitioner's suit is vexatious. Whether that is so or not will be decided at the hearing of the suit and on the merits of the dispute between the parties. But we think that on the whole the most material consideration is to appreciate the fact that since all the three suits arise out of the same agreement of October 17, 1942, it is not only necessary but desirable that the same Court should be seized of the three suits and should dispose of them according to law. As I have already stated, we are not at present making any order in regard to Bavdekar's suit. But as that suit is referred to during the course of the argument at the Bar, we have thought it fit to make reference to it.

14. As already stated, the applicant has preferred an appeal in the District Court against the order of the trial Court refusing the temporary injunction. As we are now disposed to make an order of transfer as applied for by the petitioner, it would be desirable for the applicant to withdraw his appeal because in view of the order of transfer that appeal becomes really unnecessary.

15. We, therefore, make the rule absolute and direct that Suit No. 1920 of 1946 pending on the Original Side of this Court be transferred to the Court of the Civil I Judge, Senior Division, Poona, that Suit No. 820 of 1946 pending in the Court of the Civil Judge, Junior Division, be transferred to the Court of the Civil Judge, Senior Division, Poona, and that both the suits should be heard and decided by the Court of the Civil Judge, Senior Division, Poona, according to law. As regards costs, we think that the fair order will be that the applicant should pay the opponent's costs of this application.


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