I.D. Dua, J.
1. This is an application under Sections 24 and 151 of the Code of Civil Procedure for the transfer of case No. 8-3 of 1960 (Jagpal Singh v. Jyotsna Raje) pending in the Court of the District Judge, Hissar, from that Court to some other Court of competent jurisdiction at Delhi. The case, of which the transfer has been sought, was initiated by means of a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (XXV of 1955) filed by Jagpal Singh against Jyotsna Raje.
I may here mention that there is also a similar connected petition (Civil Miscellaneous 919 of 1961) filed by Jyotsna Raje for the transfer of another case (Case No. 16 of 1960 : Jagpal Singh v. Jyotsna Raje) pending in the Court of the Senior Subordinate Judge, Hissar. from that Court to some other Court of competent jurisdiction in Delhi. The former case has been described in the petition to be case No. 1 and the latter as case No. 2.
2. Going back to the resume of the facts of the controversy, the petitioner, Jyotsna Raje, is the daughter of H. H. the Maharaja of Samthar who, after the merger of Samthar State with the Indian Dominion (now Indian Union) is permanently residing in Lucknow (Uttar Pradesh), and his daughter Jyotsna Raje petitioner is residing with her father in Lucknow. Jagpal Singh, who is an Executive Engineer, P. W. D., Public Health Division, is at present posted at Hissar and is resid-ing there; his father is posted as Land Acquisition Officer in Ambala.
The petitioner was married to Jagpal Singh respondent on 4th December 1954 and after marriage the petitioner mostly resided with her parents in Lucknow though she also resided with the respondent in Ambala where he was posted at that time. After. Jagpal Singh's transfer to Hissar, the petitioner resided with him in Hissar till February, 1959, since when she has been continuously residing with her parents in Lucknow, In between April 1959 and April 1960 the husband visited, Lucknow on no less than five occasions staying with the petitioner; on those occasions, therefore, the parties resided together as husband and wife. Since February 1959, it is again asserted that the petitioner never resided in Hissar.
3. During the pendency of case No. 1 Jagpal Singh filed in the Court of the Senior Subordinate Judge, Hissar, a petition under Section 25 of the Cuardians and Wards Act against Jyotsna Raje for the custody of Virinda Raje minor daughter of the parties; the said petition being numbered as suit No. 16 of 1960 in the Court of the Senior Subordinate Judge, Hissar. It is this suit which has been referred to earlier as case No. 2.
On 21st November 1960 Jyotsna Raje filed an application in case No. 1 for maintenance pendente life and For expenses of the proceedings under the Act of 1955 praying that the husband be initially directed to pay Rs. 5,000/- for the present to the wife as costs which are likely to be incurred by the petitioner in raising and pressing the question of jurisdiction, and further to pay a monthly maintenance of at least Rs. 400/- to her for her own maintenance and maintenance of the minor daughter during the pendency of the said proceedings.
She also filed a written statement on the same date contesting the right of Jagpal Singh to the decree for restitution of conjugal rights and, in particular, pleading that, as the parties last lived together as husband and wife in Lucknow, the District Judge, Hissar, had no jurisdiction to entertain the application for restitution of conjugal rights. On 20th December 1960 Jagpal Singh filed an application requesting the Court to summon the wife personally for recording her statement and the Court was pleased to direct a copy of the application to be handed over to the petitioner's counsel who in due course, on 15th March 1961, filed objections to the said application.
That application has, according to the petition, not yet been disposed of. After 20th December 1960 case No. 1 was fixed for 9th January, 7th February, 24th February and lastly on 15th March 1961 when the learned District Judge framed an issue with respect to the application for maintenance and expenses filed by the petitioner. The case was directed to come up for evidence on that issue on 9th and 10th of May 1961.
Issues on the merits were framed on 22nd March 1961, and evidence on those issues was also directed to be produced on 9th and 10th of May 1961. On 4th April 1961 an application was filed by the petitioner (Jyotsna Raje) in the Court of the District Judge, Hissar, praying that the proceedings in the main case be stayed till the decision of the application for maintenance pendente lite under Section 24 of the Hindu Marriage Act. This prayer was disallowed on 12th April 1961.
4. With respect to Case No. 2 it is averred that the petitioner filed her written statement on 23rd January 1961 to which a replication was filed by Jagpal Singh on 8th February 1961. The case was then adjourned to 19th May 1961.
5. It is pleaded that the petitioner, who resides in Lucknow, has engaged Sir Iqbal Abroad, Mr. Bishan Singh and Mr. B. C. Aggarwal, Advocates of Lucknow, to conduct both the cases on herbehalf at Hissar. Most of the witnesses, whom thepetitioner has to examine in the two cases in question, reside in Lucknow, Jhansi, Delhi and Landhaura in the district of Saharanpur. Sir Iqbal Ahmed, Advocate, because of the inconvenience of journey to Hissar, has not been able to appear there, and it is the petitioner's other two counsel, Shri Bishan Singh and Shri Aggarwal, who have been appearing in Court.
The presence of Sir Iqbal Ahmed at the time of recording evidence and arguments being necessary, the trial of the cases at Hissar would entail a heavy and unbearable expenditure on the Petitioner. Jagpal Singh is alleged to occupy an influential position in Hissar in the official hierarchy, and it is pleaded that the petitioner has reason to believe that the two cases have been filed at Hissar mainly with a view to harass the petitioner.
It is then averred that because of inconvenient train connections the petitioner's counsel of Luck-now have to spend three days in journey and for appearing in the Courts at Hissar they have to spend one day which has proved a great burden to the petitioner; besides, cases Nos. 1 and 2 have always been fixed for hearing on different dates. It is finally stated that if both the cases are transferred from Hissar to some other Court of competent jurisdiction in Delhi, then, apart from Considerations of convenience of parties, the petitioner will have no apprehension in respect of fairness and impartiality of trial. It is for these reasons that the two petitions have been filed in this Court for the transfer of the aforesaid two oases from Hissar to some other Court in Delhi.
6. In reply to these petitions Jagpal Singh has filed an affidavit alleging that Jyotsna Raje has been trying to delay the proceedings by making various applications in the Court of the District Judge. Hissar, and indeed it is also suggested that considerable time was spent in getting her served in the first case. It is further asserted that so far she has successfully avoided the recording of evidence in the two cases, and, being the daughter of a very rich man, she can afford to engage counsel like Sir Iqbal Ahmed, and her real object seems to be to delay the cases and tire out the husband by shattering his financial resources and to make the burden of this litigation unbearable for him.
It is also explained in the affidavit that at the time of the marriage of the parties in December 1954 at Lucknow the husband was posted aE Karnal as Sub-Divisional Officer P. W. D., Public Health Branch. As usual with Government officers in the matter of transfer, the raspondent was transferred after a short interval to Ambala and later on to Hissar where he is posted since 31st July 1958. As three years' stay at Hissar is going to be completed shortly, there is every likelihood of his being transferred again to some other place.
He has also sworn that he along with his father had been called to Lucknow by the parents of Jyotsna Raje, but rather than adopting a conciliatory attitude they held out threats and suggested some very dishonourable conditions. He has admitted about five visits to Lucknow, but he has sworn that he went there to try to prevail upon Jyotsna Raje to come to Hissar and stay with him though without success.
It is also stated that the lady has taken with her all the jewellery worth nearly Rs. 50,000/-which included the gifts given to her at the time of the marriage by her parents-in-law. The real reason why she is not coming to Hissar is that she does not want to leave a gay town like Lucknow. It is, in this connection, emphasised that he would usually be posted to one or the other mofussil stations where life is not likely to be so gay or colourful as she is accustomed to in the particular atmosphere of Lucknow,
It is unnecessary to refer to other allegations contained in the affidavit except that the wife is said to have also engaged a local pleader in Hissar, by name Shri Dev Raj, who is looking after the two cases. I need hardly notice the assertion that the parties both lived together as husband and wife at Hissar from September 1958 to 8th February 1959 where they last resided as such. His visits to Lucknow for bringing back his wife could not divest the Hissar Courts of jurisdiction to entertain the application for restitution of conjugal rights.
7. On behalf of the petitioner Sir Iqbal Ahmed has very forcefully contended that the balance of convenience in the present case is in favour of the transfer of the proceedings from the Court of the District Judge at Hissar to some other Court at Delhi though during the course of arguments at one stage he also suggested that he would not object to the cases being transferred to Chandigarh.
In support of the contention of balance of convenience being against Hissar Courts he has submitted that most of the witnesses to be produced by the petitioner belong to Lucknow or nearabout. It has also been contended that the counsel who are in charge of the cases, also belong to Lucknow, and it would therefore be more convenient to the petitioner if the two cases are transferred to some Court in Delhi, In support of his contention, he has relied on a number of reported cases.
Inayat Ullah Khan v. Nisar Ahmad Khan, AIR 1922 All 65 is the first case to which reference has been made. The head note lays down that the convenience of the parties in the conduct of litigation is certainly a relevant consideration, and it is perhaps not too much to say that it is the basis of nearly all statutory jurisdiction on the civil side. It is, however, also emphasised that a litigant applying for transfer must make out a strong case of the balance of convenience.
To the same effect is the decision in Subba Bibi v. Maqbul Hussain, 14 All LJ 242 : (AIR 1916 All 255). Inayat Ullah Khan's case, AIR 1922 All 65 was followed in Laxmikant v. Govindrao, AIR 1927 Nag 219. In Mst. Basanti Devi v. Mst, Sahodra, AIR 1935 All 979, a case in which Section 22, Civil Procedure Code, was construed, it has been laid down that in an application for transfer under Section 22 of the Code of Civil Procedure 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.
8. As against this submission, on behalf of the respondent it has been urged that the plaintiff's right to choose his own forum according to law cannot be completely disregarded, and that If a suitor chooses his own forum he should not be deprived of that right merely because the defendant has all his evidence at another place. Reliance has been placed in this connection on Shiv Parshad v. Kanhaya Shah. Ruchi Shah, AIR 1920 Lah 381.
In Pragji Soorji and Co., Bombay v. Kalu Mal Shori Mal and Co,. Amritsar, AIR 1924 Lah 306, it was observed that the right of a plaintiff to institute a suit in a Court in which the law permits him to sue should not be interfered with by the High Court in exercise of its extraordinary jurisdiction unless the suit is brought in bad faith for the purpose of working injustice to which the defendant would not be subjected if the suit were brought in another competent Court.
Similarly in Purna Chandra v. Samanta Radhaprasanna Das, AIR 1953 Orissa 46 Jagannadhadas C. J. while delivering the judgment on behalf of the Division Bench, held this to be a well-established principle that the plaintiff has the choice of his forum so long as the suit is not subject to the defect of want of local jurisdiction, and that a suit is not to be transferred from the Court where the plaintiff chooses to institute it, merely to serve the convenience of the defendants.
9. After considering the arguments advanced at the Bar, in my opinion, the convenience which is to be taken into consideration by the Court is the convenience of both the parties and not only of one of them. In the present cases, except that the witnesses for the wife are mostly resident in or nearabout Lucknow and that the senior counsel engaged by her belong to Lucknow, there is no other circumstance brought to my notice from which the convenience of both the parties can be held to be in favour of the transfer of the cases from Hissar Courts.
10. It is then contended on behalf of the petitioner that Jagpal Singh being a very senior Government official at Hissar, the petitioner entertains a reasonable apprehension that she would not get fair and impartial treatment in the Courts at Hissar. I regret my inability to uphold the contention. No material has been brought to my notice which can be construed as throwing any doubt on the impartiality or fairness of the learned District Judge.
It is true that he has disallowed the prayer for deciding the question of expenses and maintenance pendente lire before trying the merits of the case, but that in my opinion is more due to an error of judgment than to a deliberate or conscious desire to show any favour to the husband. It is unfortunate that on behalf of the husband the attention of the learned Judge should not have been invited to a Division Bench decision of this Court in Shrimati Malkan Rani v. Krishan Kumar, 1960-62 Pun LR 575 : (AIR 1961 Punj 42) where it has been succinctly stated that if the amounts of expenses and maintenance pendente lite under Section 24 of the Hindu Marriage Act are not made available to the applicant immediately, then its object and purpose stands defeated.
In my opinion the learned District Judge was certainly in error in not deciding the petition under Section 24 of the Hindu Marriage Act before the decision of the case on the merits, but this in my view does not justify the suggestion thrown on behalf of Jyotsna Raje that there can be any reasonable apprehension of the learned District Judge not adjudicating upon the rights of the parties in a fair and impartial manner.
The Courts of justice in this Republic have a solemn duty to dispense justice without fear or favour, affection or ill-will, and I have not the least doubt that the learned District Judge would perform his duty as is expected of him. As a matter of fact I find from the record of the Court below that on 21st January 1961 Shri Bishan Singh Advocate applied for adjournment of the case fixed for arguments on 7th February 1981 on a purely personal ground that on account of his relation's marriage he could not attend to the case.
Now, in spite of the fact that there were other counsel engaged in the case by Jyotsna Raje the Court accommodated the counsel and allowed the prayer. Neither has Jyotsna Raje's counsel drawn my attention to any circumstance which can possibly give rise to any reasonable apprehension in regard to the impartiality of the learned District Judge, nor have I myself been able to find from the record of the Court below, which I sent for for this very purpose any material justifying any such apprehension in any reasonable mind,
11. I may here notice that on behalf of Jyotsna Raje the jurisdiction of the Hissar Courts has been assailed, and it is really on the question of jurisdiction that most of the witnesses included in her list are expected to depose. I am aware of some decided cases where it has been held that a defendant is not entitled to contend that a particular Court has no jurisdiction to entertain the suit and at the same time ask for a transfer of the case to some other Court, although it has also been observed in some cases that the power of transfer vesting in the High Court under Section 24 of the Civil Procedure Code is not fettered by any conditions, and merely because there is a dispute on the question of jurisdiction there should be no bar to the exercise of this power.
There is, however, high authority for the proposition that a superior court cannot make an order of transfer of a case under the Code of Civil Procedure unless the Court, from which the transfer is sought to be made, has jurisdiction to try it (see Ledgard v. Bull, ILR 9 All 191 (P C)), approving Peary Lall Mozoomdar v. Komal Kishore, ILR 6 Cal 30. I would, tiierefore, have also hesitated to transfer these cases from the Courts of Hissar to any other Court so long as the question of jurisdiction of those Courts is disputed even if case for transfer had been made out but I am not basing my decision on this aspect because It was not debated before me, and also because I do not find any cogent ground in support of the claim.
12. Sir Iqbal Ahmed lastly contended that if I was not inclined to transfer the cases from Hissar Courts, I should at least direct that the learned District Judge should decide the petition under Section 24 of the Hindu Marriage Act before deciding the merits of the case and also that both the cases ((1) for restitution of conjugal rights, and (2) for appointment of guardian for the minor daughter of the parties) be heard in the same Court. In my view this request is just and fair. It is not disputed that this Court is empowered to grant this prayer in these proceedings.
I would, therefore, direct the District Judge to dispose of the petition under Section 24 of the Hindu Marriage Act before the trial of the case on the merits, and also that the guardianship case pending in the Court of the Senior Subordinate Judge be transferred to the Court of the learned District Judge who should, so far as possible, see that those two cases are not fixed for hearing on different dates, but this is distinctly subject to the convenience of the Court keeping in view the nature and extent of the work pending there, for, this is a matter peculiarly within the discretion of the Court below.
13. With these observations I disallow the prayer for transfer but direct that the two cases be heard by the Court of the District Judge and the petition under Section 24 of the Hindu Marriage Act be decided before the merits of the case are adjudicated upon.
14. Before parting I may mention that on behalf of Jagpal Singh it has been urged that coming as Jyotsna Raje does from an exceedingly rich family, efforts are being made on her behalf to prolong the proceedings on various pretexts she being in a position easily to afford to engage a large number of eminent and expensive counsel. I have no doubt the Court below would see that neither the local official position of Jagpal Singh nor the suggested financial superiority of Jyotsna Raje's parents is permitted to interfere with the fair and impartial administration of justice and that the trial of the case proceeds with due promptitude in a strictly judicial manner neither unduly delaying its disposal or unduly rushing through it.
15. I would have burdened the petitioner with costs because the prayer for transfer was wholly unjustified but keeping in view the relationship of the parties I am making no order as to costs. I, however, do hope that the parties would still try to forget the past and make up their differences, if for no other reasons then at least for the sake of their offspring.
16. The counsel have been directed to instruct their clients to appear in the Court of the District Judge on the 21st August 1981 for further proceedings in accordance with law and in the light of observations made above.