Murlidher Rao, J.
1. This is a petition filed by the wife for transferring M. C. No. 259 of 1981, pending in the court of the City Civil Judge, Bangalore, to be tried along with O. P. No. 140 of 1983, on the file of the Chief Judge, City Civil Court, Hyderabad, (A.P.)
2. The undisputed facts are the first petitioner and the respondent were married at Hyderabad on 8-3-1981. At the time of marriage, the respondent was working as a doctor in Iran. After his return to India, the respondent is employed as a Senior House Surgeon in Vishakapatnam, A.P. Therespondent's father M. Suryanarayana resides at Bangalore.
The married life between the first petitioner and the respondent was short lived. Respondent filed M. C. No. 359 of 1981, before the City Civil Court, Bangalore, for declaration of nullity of the marriage between him and the firstpetitioner. M.C. No. 259 of 1981 filed by the respondent-husband was instituted earlier. The first petitioner in her affidavit has stated that she has no relations at Bangalore and has to come to Bangalore only to attend M.C. No. 259 of 1981, wherein she is impleaded as respondent; and on every visit, she has to be accompanied by her father and that she has no means of her own to meet the expenses. She also mentioned that respondent himself is staying at Vishakapatnam and he has to come to Bangalore where his parents are staying. The respondent has executed a power of attorney in favour of his father, It was on the ground of convenience that the present petition is filed under Section 23(3) of the Code of Civil Procedure.
3. Respondent has filed objections contending that the petition under Section 23(3) C.P.C. is not maintainable since M.C.No. 259 of 1981, filed in Bangalore City Civil Court being an earlier case, there is no justification to transfer the same to the Court of the Chief Judge, City Civil Court at Hyderabad, wherein the first petitioner has filed her case, much later.
4. Tt is admitted that the respondent is working as a Senior House Surgeon at Vishakapatnam, since it is not possible for him to attend the Court on every date of hearing lie has appointed his father M. Suryanarayana, residing at Bangalore, as his power of attorney. He contended that transfer of his case would cause inconvenience to him and the proceedings will be protracted. It is also mentioned that the witnesses to be produced on behalf of the respondent are from Bangalore. The questions that arise for consideration are-
(1) Whether the petition under Section 23(3) C. P.C. is maintainable and if so whether M.C.No. 259 of 1981, on the file of the City Civil Court, Bangalore, should be transferred to the Court of the Chief Judge, City Civil Court, Hyderabad., A.P. to be clubbed and tried along with O.P.No. 140 of 1983 ?
(2) Whether in the circumstances it is expedient to do so ?
5. Mr. Krishna Bhat appearing for the petitioners main tained that the powers of the High Court under Section 23(3) C.P.C. are very wide and there are no fetters on the exercise of these powers. Therefore, the case filed by the husband could be transferred to the City Civil Court at Hyderabad in view of the fact that it is expedient to do so. Mr. Dayananda appearing for the respondent maintained that though there are no restrictions placed by the Code on the power of the High Court under Section 23(3), nevertheless the petitioner having questioned the jurisdiction of the Court, cannot invoke the provisions of Section 23(3) C.P.C. He maintained that the petitioner has contended that the City Civil Court, Bangalore, has no jurisdiction to try M.C. No. 59 of 1981. In view of this ground, it was contended by Mr. Dayananda that the petitioner is not entitled to invoke the provisions of Section 23(3) C.P.C.
6. Though there is no direct decision on this point falling under Section 23(3) C.P.C., yet Mr. Dayananda sought to place reliance on the judgment of this Court in Alice Sequeira & others -v.- Miranda & others, 1971 (2) KLJ 447 which arose under Section 21 of the Code. Mr. Dayananda maintained that the principles governing exercise of powers under Section 23(3) and under Section 24 of the Code being one and the same, the guidelines for the exercise of the said power must also be the same.
7. So far as this ground is concerned, it has to be mentioned that though there is a judgment of this Court as mentioned above, the same is no longer good law in view ofsub-section (5) of Section. 24, which provides that.
'A suit or proceeding may be transferred under this Section from the court which has no jurisdiction to try the same.'
Sub-section (5) was introduced by Act No. 104 of 976. After the above amendment, Kudoor, J, in P. P. Mamoo Koya -v.- P. Andu, 1983(2) KLJ 265 has held that the defendant who raised the question of jurisdiction of the Court, can seek for transfer of the suit under Section 24 CPC The Learned Judge has held that the case reported in 1971(2) Kar.L.J. 4471, is not good law after the introduction of sub section (5). Though there is no Section corresponding to sub-section (5) of Section 24 in Section 23, it would not be reasonable to put an artificial limitation on the Court's power under Section 23(3) C. P. C. Therefore the ground urged by Mr. Dayananda that the first petitioner having questioned the jurisdiction of the Court in M.C. No. 259 of 1981, cannot invoke the provisions of Section 23(3) of the Code, has got to be rejected. Accordingly it is rejected.
8. The first question that arises for consideration is the scope and ambit of Section 23(3) CPC The said Section reads thus :
'23(3) Where such Courts arc subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate'.
A plain reading of the Section makes it clear that if cases are pending in different Courts which are subordinate to different High Courts, an application is maintainable before the High Court within whose jurisdiction the subordinate Court, wherein the suit is pending, is situate. In the instant case, M. C. No. 259 of 1981, is pending, in the Court of the City Civil Judge, Bangalore. Therefore this Court has the power to transfer the said case to any other Court which is subordinate to any other High Court, in the instant case, it is in the Andhra Pradesh High Court. This position is made clear by the judgement of the Nagpur High Court in Firm Kanhaiyalal Daga -v.- Zumerlal and others AIR 1940 Nagpur 145 wherein a Bench consisting of Stone C.J. and Vivian Bose, J., on reference by a Single Judge, have held.
'The High Court has jurisdiction to transfer a suit pending in a Court subordinate to it to a Court subordinate to another High Court.'
The above decision was followed by a learned Single Judge of the Kerala High Court in P. Sadayandi Nadar & others -v.- Venugopala Chetty and others : AIR1960Ker91 . The Supreme Court in Western U.P. Electric & Power Supply Co. Ltd. -v.- Hind Lamps Ltd., has held that it was permissible for a High, 1969(2) SCWR 16 Court to transfer a suit pending in a Court subordinate to it to another Court subordinate to another High Court. The Court held that Sections 22 and 23(3) expressly provide for such a transfer.
9. A learned Single Judge of the Punjab and Haryana High Court has made the following observation explaining the scope of Section 23(3) C.P.C. In State Bank of India-v.- Sakow Industries Faridabad (Pvt) Ltd. AIR 1976 P and H 320 New Delhi .
'The plain reading of this Section snows that in a situation like the present. High Court can order transfer of the case to some other Court under the different High Court. Moreover, under Section 151 of the Code of Civil Procedure every Court has the inherent jurisdiction to pass any order to meet the ends of justice. In Pragji Soorji and Co. of Bombay -v.- Kalu Mal Shori Mal and Co. of Amritsar AIR 1924 Lab. 306, it has been held that the inherent powers under Section 151 of the Code of Civil Procedure can be used for the purpose of preventing or remedying grave abuses. Same view has been taken in Datt Singh -v.- Tejdatt Singh : AIR1934All14 .......'
10. In view of these decisions, it has to be held that this Petition under Section 23(3) C.P.C. is maintainable and this Court is competent to transfer M.C. No. 259 of 1981 pending before the City Civil Court at Bangalore, to the Court of the Chief Judge, City Civil Court at Hyderabad, which issubordinate to the Andhra Pradesh High Court.
11. Mr. Dayananda however maintained that though there are no guidelines in Section 23(3) of the Code, yet the clue for the exercise of power can be found by following the principles enunciated in Section 21A of the Hindu Marriage Act Section 10 C. P. C. He contended that since these proceedings relate to rights arising under the Hindu Marriage Act, the guidelines mentioned inSection 21A will have to be applied, in which event, the suit or proceedings instituted later will have to be transferred to the Court in which the earlier petition was presented as provided in Clause (b) of Section 21A(2). The head note of Section 21A specifies power to transfer petitions in certain circumstances, (underlining is mine). Section 21A deals with petitions wherein a decree for judicial separation under Section 10 or divorce under Section 13 are filed and. anotherpetition has been presented by the other party praying for a judicial separation or for a divorce in another Court on any ground whatsoever, the Petition shall be dealt with in accordance with what is provided in sub-section (2). Therefore the limited scope of Section 21A is applicable only in cases ofproceedings instituted for judicial separation and divorce 'and not otherwise. This position is made clear by the Supreme Court in Guda Vijayalakshmi -v.- Guda Ramachandra Sekhara Sastry : 3SCR223 . The Supreme Court was considering its powers under Section 25 C.P.C. Dealing with this aspect of the matter and disapproving the view taken by the Bombay High Court : AIR1980Bom337 and , the Court observed thus :
'....As stated earlier, in the matter of transfer of petitions for a consolidated heating thereof Section 21A cannot be regarded as exhaustive for the marginal note clearly suggests that the Section deals with power to transfer petitions and direct their joint and consolidated trial ''in certain cases.' Moreover, it will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of ahusband's petition for restitution of conjugal rights on the ground that the wife has withdrawn from his society without reasonable excuse under Section 9 of the Act and the wife's petition for judicial separation against her husband on ground of cruelty under Section 10 of the Act in order to avoid conflicting decisions being rendered by two different Courts, In such a situation resort will have to be had to the powers under sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing. Reading of Section 21A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided.'
12. In the case dealt with by the Supreme Court, the husband had filed a petition for restitution of conjugal rights and the wife had filed a petition for judicial separation. In the instant case, it is reverse, i.e., the wife has filed a suit for restitution of conjugal rights and the husband has filed the petition for judicial separation. Nevertheless, in view of the principles of law, it has to be held that the guidelines given in Section 21A cannot be applied to the exercise of power under Section 23 C.P.C. because s. 21A of the Hindu Marriage Act is applicable only in certain cases and is not exhaustive.
13. Mr. Dayananda's next contention was that Section 10 C.P.C. which deals with the stay of suits can be looked into to find out as to which suit must be given priority for deciding the question of transfer. He contended that in all such cases, the earlier instituted proceeding cannot bedisturbed and it is only the proceeding initiated later that has got to be stayed. It is difficult to accept this contention because once it is held that the power under Section 23(3) is without any limitation, whatsoever, then the only factor that has got to be considered is whether it is just and expedient to exercise that power; and moreover the petitioner, in the instant case, having approached this Court under Section 23(3) C.P.C. to transfer the case from the Court subordinate to this Court, it will not be correct to drive her to try her remedy in Andhra Pradesh Court for a similar relief.Hence, this contention of Mr. Dayananda is also negative.
14. The question that still remains to be considered is whether it is just and expedient to exercise the power under Section 23(3) C.P.C. and if so what are the relevantconsiderations for exercising that power. As mentioned above, the petitioner has stated in her affidavit, that the marriage was celebrated at Hyderabad; the respondent is working as Senior House Surgeon in Vishakapatnam in Andhra Pradesh; she has no relations at Bangalore; whenever she comes to Bangalore, she has to be accompanied by her father and has to stay in a hotel incurring expenditure and in addition, her witnesses are at Hyderabad and it would be convenient for her to adduce evidence at Hyderabad. As against this, the only averment of the respondent is that his parents and witnesses are at Bangalore and he has appointed his father as a power of attorney to look after the case. The convenience of the party is a relevant circumstance to decide the expediency in such matters. Though the plaintiff, as arbiter litis has a right to choose his own forum and that right should not beinterfered with except on very strong grounds, the search should be for justice and the Court has to be satisfied that justice is more likely done to the parties by refusing forum of his choice. The onus very heavily lies on the petitioner who has moved theCourt. In Firm Kanhaiyalal's case it is observed thus :
'In deciding the question whether it is expedient to order transfer of the suit the convenience of the parties is indeed a factor which enters into consideration, but it is obvious that the convenience of both parties have to be weighed and the matter most ultimately turn on the balance of convenience.'
In Sri Pamban Kumaragurubara Swami Temple -v.- K. Subra manya Mudaliar : AIR1977Mad27 , it is observed that the convenience of the parties concerned is one of the criteria for the purpose of transferring the suit.
15. On the facts of this case, keeping in view the circumstances mentioned above, it appears to me that it is just and expedient that the case filed by the Respondent, though earlier, at the City Civil Court, Bangalore, will have to be transferred to the Chief Judge, City Civil Court, Hyderabad, since the petitioner, who is the housewife, is without any independent means of livelihood staying at Hyderabad and secondly the Respondent is a Senior House Surgeon in Andhra Pradesh. So far as the Respondent is concerned, either he has to come to Bangalore or he has to go to Hyderabad. Therefore, his journey to either of these places is inevitable. In these circumstances, I am of the view that on the facts of this case, it is just and expedient to transfer M.C. No. 259 of 1981, on the file of the City Civil Judge, Bangalore to the Chief Judge, City Civil Court at Hyderabad.
16. For the aforesaid reasons, this Petition is allowed and M.C. No. 259 of 1981, on the file of the City Civil Judge, Bangalore, is transferred to the Court of the Chief Judge, City Civil Court, Hyderabad, to be clubbed with O. P. No. 140 of 1983.