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Laxmibai Gulabrao Vs. Martand Daulatrao Deshmukh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Civil Application No. 7 of 1968
Judge
Reported in(1972)74BOMLR773
AppellantLaxmibai Gulabrao
RespondentMartand Daulatrao Deshmukh
DispositionApplication dismissed
Excerpt:
.....the complaint. in other words, if there is no mention of the caste of the accused in the fir, that cannot be a ground for either not registering the offence under section 3 of the act or for quashing such complaint - it is, therefore, their plea that the cause of action for the claim against the applicants who are from amravati district has arisen independently at the places of their residence in amravati district and the opponents could very well have filed a separate suit at amravati against them in respect of the properties in their possession. this suit, therefore, would cause expenses and inconvenience to the applicants as well as their witnesses. 44 as well as laxmikant v. 225, they decided that the grounds mentioned in the case before them were not satisfactory and that his..........therefore, now is to see whether for the reasons stated by the applicants in the petition the suit filed by the opponents could be transferred. their case is that out of 57 defendants, 37 defendants are from amravati district. a large part of the property which is the subject-matter of the suit is also in the district of amravati. quite a number of witnesses also must necessarily come from amravati. they have to be taken from amravati district to akola where the suit is filed. this suit, therefore, would cause expenses and inconvenience to the applicants as well as their witnesses. the point, therefore, that arises herd is to see whether such an inconvenience could be a ground for transfer. the learned advocate for the applicants relies on k.l. daftary v. k.l. dube a.i.r.[1955] nag......
Judgment:

Bhole, J.

1. This is an application for transfer by 24 out of 57 defendants against whom the plaintiffs had filed a suit in forma pauperis for possession of immoveable properties in the districts of Amravati and Akola on the ground that the transfers in question were made by the deceased Karta of the family without any legal necessity. Their case here is that opponents Nos. 1 to 6, i.e. the plaintiffs, have filed an application in the Court of the Civil Judge, Senior Division, Akola, under Order XXXIII, Rule 1, Civil Procedure Code, for permission to sue in forma pauperis. That application is registered in the Court as Regular Misc. Case No. 388 of 1963. They further state that the cause of action is stated in the plaint to have arisen from 1941 to 1957 at various places where the properties in suit are situated. According to them, there are in all 57 defendants out of whom 4 are reported to be dead and 37 of them are residents of Amravati district and the rest of them are from Akola district. The grievance of the applicants is that it is extremely inconvenient for them to, attend the proceedings of the said case at Akola on every date of hearing. The applicants arc principally the residents of Shendurni Bk., Tiwasa and Mozari and for going to Akola they have first to go to Amravati, a distance of 27 miles, and from Amravati to catch a train or bus for Akola. According to them, this would be very expensive. They do not also know any lawyer at Akola. It is, therefore, their plea that the cause of action for the claim against the applicants who are from Amravati district has arisen independently at the places of their residence in Amravati district and the opponents could very well have filed a separate suit at Amravati against them in respect of the properties in their possession. They say that the object of the opponents in joining these applicants and other persons residing in Amravati district as parties to the suit at Akola appeared to bring pressure on them by putting them to great inconvenience and hardship and requiring them to spend amounts over the litigation which they can ill-afford. It is, therefore, prayed that this Court should transfer the proceedings registered as Regular Misc. Case No. 388 of 1963, which is to get permission to sue in forma pauperis, to an appropriate Court in Amravati district or, in the alternative, this Court may be pleased to direct the opponents to institute proceedings against the applicants in respect of claims preferred against them in the Court at Akola.

2. The learned advocate for the applicants has in the beginning raised a contention that the Akola Court whore this suit is proposed to be filed had no jurisdiction to entertain 'the suit, because the defendants not only come from one district, viz., Akola, but also from another district, viz, Amravati. It is his contention also that the properties are all spread over not only in the district of Akola but also in the district of Amravati. It was, therefore, his contention that the opponents could not file such a suit in the Akola Court and that the Akola Court had no jurisdiction to entertain the suit at all. But this is an application under Section 24 of the Civil Procedure Code which, states that on the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, this Court may, at any stage, transfer any suit before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or withdraw any suit pending in any Court subordinate to it and transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same. Now, therefore, when this is an application for transfer of the suit under Section 24 of the Civil Procedure Code, the learned advocate for the applicants cannot contend in such an application that the opponents could not have filed this suit and that the Akola Court had no jurisdiction to entertain that suit. It is not open to the defendants to contend here that the Akola Court had no jurisdiction to entertain this suit and at the same time ask for the transfer of the case to some other Court. In Krishnaji Rao v. Gokuldas A.I.R.[1955] Mys. 115 such a proposition is also followed. The learned Counsel for the applicants after the law was brought to his notice, has fairly conceded that he could not argue on the point of jurisdiction of the Akola Court to entertain the suit.

3. The only point that remains, therefore, now is to see whether for the reasons stated by the applicants in the petition the suit filed by the opponents could be transferred. Their case is that out of 57 defendants, 37 defendants are from Amravati district. A large part of the property which is the subject-matter of the suit is also in the district of Amravati. Quite a number of witnesses also must necessarily come from Amravati. They have to be taken from Amravati district to Akola where the suit is filed. This suit, therefore, would cause expenses and inconvenience to the applicants as well as their witnesses. The point, therefore, that arises herd is to see whether such an inconvenience could be a ground for transfer. The learned advocate for the applicants relies on K.L. Daftary v. K.L. Dube A.I.R.[1955] Nag. 44 as well as Laxmikant v. Govindrao . It is observed in the facts and circumstances of the case of K.L. Daftary v. K.L. Dube by Mr. Justice Sen, who heard the appeal in that case, that where the trial of a suit at place A is likely to cause delay and put the defendants to considerable expense, that where out of thirteen defendants, twelve defendants reside at place outside A and ten defendants support the application for the transfer of the case at place B, it is in the interests of justice that the trial should be held in a Court at place B. Such are not the facts here. The suit is filed against 57 defendants. The application is filed only by 24 defendants. Thirty-seven defendants are said to come from Amravati district while the rest of them come from the Akola district. Therefore, this is not a case in which a large number of defendants have come with a complaint that they would be inconvenienced if the suit is tried in the Akola Court. In Laxmikant v. Govindrao, the Judicial Commissioner Mr. Findlay had observed that in Ordering transfer of a ease the convenience of the parties is not merely a relevant but also a material consideration, and, in effect, the convenience of the parties is at the basis of all the arrangement for statutory jurisdiction on the civil side. It may be that in certain circumstances the convenience of parties could be seen; but in all circumstances, the convenience could not be seen. In Geffert v. Ruckchand Mohla I.L.R.(1888) Bom. 178, the plaintiff had brought a suit in the High Court at Bombay against the defendant for defamation alleged to be contained in a notice that appeared in the Bombay Gazette. The defendant was the chairman of the Hinganghat Mill Company. The plaintiff had been for some years secretary and manager of that company. He was dismissed and, therefore, he filed the suit in the Court of the Deputy Commissioner at Wardha in the then Central Provinces for wrongful dismissal. The suit with which this Court at that time was concerned Was then filed later. The defendant took out a summons, calling on the plaintiff to show cause why the suit should not be stayed and the plaint returned to the plaintiff, in Order that if he thought proper, it might be presented to the Court at Wardha. The defendant's grounds were that neither he nor the plaintiff resided or carried on business at Bombay; that all the defendant's witnesses resided at Wardha; that the other suit was also pending at Wardha and that the decree of that suit would decide the present case also. While considering those facts therefore a question as to what should be the consideration, by which the Court was to be guided in deciding such a question, as was raised by the parties, was posed. It was observed that the sole question should be whether, under the circumstances, justice was more likely to be done between the parties by refusing to allow the plaintiff to continue his suit in Bombay. Citing McHenry v. Lewis (1882) L.R. 22 Ch. D. 397 and Peruvian Guano Company v. Bockwoldt (1883) L.R. 23 Ch. D. 225, they decided that the grounds mentioned in the case before them were not satisfactory and that his Lordship was not satisfied that justice Was more likely to be done at Wardha or elsewhere than in the Bombay Court. It appears, therefore, that the jurisdiction under Section 24 of the Civil Procedure Code should be exercised with extreme caution and we could not stop the plaintiff from going on when he has a right of action as against the defendant. We could not also ordinarily stop his action. He has to bring the action at the peril of costs if the action does not succeed. If it is vexatious on another ground that attitude also could be dealt with. The search therefore should be for justice and the Court must be satisfied that justice could more likely be done between the parties by refusing to allow the plaintiff to continue his suit in the forum of his choice. The grounds mentioned by the applicant do not therefore justify any interference with the right of the plaintiff to bring the action in the forum of his choice. The grounds are not satisfactory.

4. Therefore, this application is dismissed with costs.


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