1. This is an application by Mt. Basanti, a defendant in civil suit No. 16 of 1935, pending in the Court of the Subordinate Judge of Agra, and the prayer in the application is that the said suit be transferred to the Hon'ble Chief Court at Lucknow. The application is headed under Section 22, Civil P.C., and it is obvious that the intention of the applicant is that we should come to a determination under the provisions of that section.
2. The facts on which the application is based are that the suit relates to certain property which was owned by one Lala Murlidhar and to a certain will which was executed by the aforesaid person. It is said that Murlidhar executed a will in 1931 and died in 1934 and that he possessed considerable moveable and immovable property, the bulk of which lies in the Districts of Lucknow and Partabgarh. The suit brought by the opposite parties was for a declaration that the alleged will was a forged will and that
the estate of Lala Mmrlidhar in the hands of Mt. Basanti Devi and Anand Behari Lal and in whosesoever name be reduced in possession by appointment of receiver for the life-time of Mt. Basanti Devi.
3. The suit itself was based on the allegations that the will was not a genuine will and that Mt. Basanti Devi the widow of Murlidhar who was entitled only to a Hindu widow's estate had come under the influence of one Anand Behari Lal and was wasting the property. The case of the defendant, Mt. Basanti Devi who is the applicant before us is that although the Agra Court has jurisdiction, inasmuch as a portion of the property is situate with, in the jurisdiction of the Subordinate Judge of Agra, yet a strong case of balance of convenience exists for the case being tried at Lucknow. It is pointed out that the bulk of the property is in Oudh, that Murlidhar resided in Lucknow, that the will was executed at Lucknow and that therefore the witnesses who would be produced by the parties in connexion with the suit instituted by the opposite parties will be from Oudh. It is further stated that the receiver who is to be, according to the plaint allegations, a permanent receiver for the lifetime of the Hindu widow should naturally come from Lucknow, and the Courts at Lucknow would be in a better position to nominate such a person and to see that their directions are properly carried out.
4. In reply it is contended that it is to the convenience of the plaintiff that the suit should be instituted at Agra inasmuch as the plaintiff is a pardahnasihin lady who, although she resides with her husband at Delhi, has her father living permanently at Agra. It is also said that the plaintiff is the dominus lit is and has a right to choose the forum, and the Courts ought to be very reluctant in depriving the plaintiff of that right and a transfer should not be made unless exceptional circumstances exist and a strong case has been made suit on the question of balance of convenience. The argument is that the convenience of the parties alone should not be considered, but the totality of circumstances should indicate that a suit should proceed in a Court different from the Court chosen by the plaintiff. We have heard learned Counsel at great length on this point, and although we agree with the above proposition of law submitted by Dr. Sen which is supported by several authorities, we have come to the conclusion that in the present case there is a preponderance of balance of convenience in the suit being proceeded with at Lucknow.
5. As pointed out before, the will was executed at Lucknow and the testator resided at Lucknow. The bulk of the property is situate at Lucknow, the witnesses obviously would come from Lucknow and the Court at Lucknow would be in a better position to enforce its orders. We might mention that the plaintiff after having instituted her suit asked for the appointment of a Commissioner in order to prepare an inventory of certain moveable property and the Subordinate Judge of Agra appointed such a Commissioner. It is stated in the affidavit of the opposite parties that when this Commissioner went to make the inventory of certain properties at Lucknow he was met with resistance and the commission could not be executed. Such a thing, we are of the opinion, would not have happened if the commission had been issued from a Lucknow Court. On the merits therefore we are of the opinion that the case should be tried at Lucknow and not at Agra, and we make a declaration under Section 22, Civil P.C., that the suit shall proceed in the Chief Court at Lucknow.
6. Two questions of law were argued before us and we think it necessary to notice them in the course of our judgment. It was said that no notice of the application was given to the opposite parties before making the application, and the contention is that this failure is fatal to the application. It is true that Section 22, Civil P.C., says that
Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may...apply to have the suit transferred to another Court.
7. It is conceded that no notice was given to the opposite parties before the application for transfer, but the submission is that this does not entail the dismissal of the application when as a matter of fact notice has issued to the opposite parties on the application itself. Reliance is placed by the plaintiff opposite parties on the case reported in Gulab Chand v. Sher Singh 1916 Lah 95, where it was said that the words in the section clearly indicate that the notice must be given prior to the making of the application, but the learned Judge immediately after says that the point is to some extent a minor point. A case of the Lahore High Court Edulji Dinshaw v. Dhanpat Mal Bhagwan Das 1928 Lah. 183, was also brought to our notice and there it appears that a learned Judge of the Lahore High Court had dismissed an application for transfer on this preliminary objection, but there is no discussion of the point in the case. We are of the opinion that although the section contemplates the giving of a notice prior to the application and such a notice should as a rule be given yet there is no indication that the failure to give such a notice is fatal to the application. In our view the failure at an earlier stage was cured by the issue of a notice on the application itself. The object seems to be that an order for transfer should not be passed without hearing the other side and that the other side should not in any way be prejudiced. We are satisfied that in the present case the proceedings in the Court below were not in any way obstructed or delayed by the failure to give notice prior to the making of the transfer.
8. The second question of law that was argued was that the applicant before us having questioned the jurisdiction of the Agra Court could not maintain an application under Section 22, Civil P.C., and in this connexion reliance was placed on the case reported in Purna Chandra Mukerji v. Dhona Kristo Biswas 1914 All 351 and on the case reported in Askaran Baid v. Bhola Nath 1918 Oudh 441. It appears that in the present case the defendant had questioned the jurisdiction of the Subordinate Judge of Agra in a miscellaneous application, but the learned Subordinate Judge repelled the contention. In the application before us the jurisdiction of the Court below has not been questioned and the application proceeds on the assumption that the Court at Agra had jurisdiction to try the suit. In the two cases on which, reliance has been placed the applicant while making the application for transfer questioned the jurisdiction on the Court, and it was pointed out that under such circumstances it was not open to the party to invoke the provisions of Section 22, Civil P.C., which contemplate the existence of jurisdiction in the Court where the suit is pending. We think the two cases are clearly distinguishable, and there is nothing in the conduct of the applicant which disentitles him from the relief which he claims.
9. For the reasons given above, we determine that the suit shall proceed in the Chief Court at Lucknow and the proceedings at Agra will naturally come to an end. We make no order as to costs.