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P. Sadayandi Nadar and ors. Vs. Venugopala Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberC.M.P. No. 823 of 1957
Judge
Reported inAIR1960Ker91
ActsCode of Civil Procedure (CPC) , 1908 - Sections 22, 23, 23(3) and 24
AppellantP. Sadayandi Nadar and ors.
RespondentVenugopala Chetty and ors.
Appellant Advocate N. Sundara Iyer, Adv.
Respondent Advocate V.P. Gopalan Nambiar and; P.R. Nambiar, Advs. (for No. 1),;
DispositionPetition allowed
Cases ReferredIn Logan v. Bank of Scotland
Excerpt:
.....one sub-court to another - suit filed by plaintiff for partition of joint hindu family (huf) - sections 22 and 23 of code deal with case where plaintiff has choice of two or more courts in which he may properly institute suit - defendant can then apply to have transferred to another court - 3 possibilities contemplated by code - where alternative courts subordinate to same appellate court - where they subordinate to different appellate courts - where they are subordinate to different high courts - plaintiff had choice of forum as arbiter litis and chose present court - court allowed suit to be transferred. - - therefore it has been laid down that very strong reasons must he shown by the petitioner defendant to deprive the plaintiff of this choice. mulraj, 27 mad li 645: (air 1915..........and the saving of avoidable time, labour and expense it is just and necessary to have the suit transferred as prayed for. but he left the choice of the sub-courts at tuticorin or ramanathapuram at madura to the plaintiff.5. the petition was strenuously contested on behalf of the plaintiff on the basis mainly that the choice of forum for instituting the suit is that of the plaintiff and he having exercised it, it was not for the defendants in the suit to say differently. no adequate ground for transfer had been alleged either. on the other hand, according to the plaintiff, he would be put to unnecessary loss and inconvenience because he has already employed competent legal adviser for the suit. the contention of the petitioners that solitary item 11 -- the match co., should not.....
Judgment:
ORDER

Varadaraja Iyengar, J.

1. This is a petition for transfer of O. S, No. 45 of 1956 of the Sub-court, Oottappalam to the Sub-court, Tuticorin. The petitioners are the defendants 11 to 15 in the suit.

2. The suit was for partition of the plaintiff's one-half share as against the defendants 1 to 10 who comprised the other branch of the joint Hindu family of the parties. The plaint merely averred as the reason for the suit that the plaintiff was dissatisfied with the management of his brother's sons, the defendants 1 and 2 of the B schedule immoveables and the C schedule movables belonging to the family and entrusted to them. All the B schedule items except item II, lay within the jurisdiction of the Sub-Courts of Tuticorin and Ramnad and the parties were also residents at Sattur, The suit could accordingly have been laid in either of these Sub Courts but the plaint was filed in the Sub-Court at Ottapalam though properly in view to the situation of the item 11 viz. the West Coast Match Co., at that place. The plaint did not however mention the reason for the choice. It also took in only the defendants 1 to 10.

3. The defendants 1, 2 and 3 to 6 filed separate written statements in the case without disclosing much of a contest. They admitted the existence of the joint family as alleged in the plaint but pleaded ignorance as to whether B or C schedule items belonged to the family. The second defendant acknowledged the fact of his management but claimed that it was only as executor under his father's will and further that he had already effected certain alienations in respect of some of the B schedule items. These alienees being the defendants 11 to 17, were on his special motion later impleadcd. It may be added that plaintiff has since applied for impleading four more alienees alleged to have been discovered by him. Sometime after their own impleading it was that the defendants 11 to 15 filed this petition.

4. The affidavits exchanged between the parties to this petition disclose that the petitioners 1 to 4, viz., defendants 11 to 14 are residents of Tinnevelly District and the properties alienated to them are also in that District while the 5th petitioner, 15th defendant is a resident of Ramanathapuram District, the property mortgaged to her also being within that District. The 15th defendant has further obtained preliminary decree in O. S. 57 of 1956 on the file of the, Ramanathapuram Sub-Court at Madura and is talcing steps for final decree therein. The distance of the place of residence of all the parties to Ottapalam is more than 200 miles. The language of all the parties is Tamil and that of the witnesses who would have to be examined is again Tamil while the language of the Sub-Court at Ottapalam is Malayalam.

These facts, taken along with the frame of the plaint and the conduct of the suit so far, it is urged on behalf of the petitioner, indicate that the forum at Ottapalam was chosen in collusion between the plaintiff and defendants 1 to 10, with a view to defeat and delay the petitioners and other alienees as far as possible. Learned counsel says that in the interests of the fair trial of the suit and of convenience and the saving of avoidable time, labour and expense it is just and necessary to have the suit transferred as prayed for. But he left the choice of the Sub-Courts at Tuticorin or Ramanathapuram at Madura to the plaintiff.

5. The petition was strenuously contested on behalf of the plaintiff on the basis mainly that the choice of forum for instituting the suit is that of the plaintiff and he having exercised it, it was not for the defendants in the suit to say differently. No adequate ground for transfer had been alleged either. On the other hand, according to the plaintiff, he would be put to unnecessary loss and inconvenience because he has already employed competent legal adviser for the suit. The contention of the petitioners that solitary item 11 -- the Match Co., should not have been made the ground for choice of forum, was met by the plaintiff, by saying that that item was more valuable than all the rest of the items put together. Further support for the plaintiff was sought to be gathered from an affidavit of the 4th respondent -- 3rd defendant, Saraswathy Annual, particularly suggesting that a Receiver application to safeguard the item 11 and its profits might possibly be called for so as to render inexpedient any disturbance of the suit as now laid.

6. There can, in my opinion, be no doubt about the maintainability of the petition. Sections 22 and 23 of the Civil Procedure Code deal with a case where the plaintiff as A choice of two or more courts in which ho may properly institute a suit and the defendant can then apply to have the case transferred out of the court in which it is filed la another court. There are three possibilities contemplated (a) where the alternative courts are subordinate to the same appellate court, (b) where they are subordinate to different appellate courts and (c) where they ate subordinate to different High Courts. This latest category is dealt with by Section 23(3) under which the present petition is made.

'23(3) Where such Courts are subordinate to different High. Courts, the application shall he made to the High Court within the local limits of whoso jurisdiction the Court in which the suit is brought is situate'.

In Abu Bakar Abdul Rahiman and Co. v. Rambux, MR 1916 Nag 31, Stanyon, A. J. C. no doubt expressed the view that Section 24, C. P. C., was

exhaustive of the judicial power to transfer suits, that Section 22 did not grant express power on the High Court to make the transfer and Section 23(3) has no value for the purpose of procedure, But his opinion was overruled by a later decision of that court in Firm Kanhaiyalal Daga v. Zumerlal, AIR 1940 Nag. 145, (Stone. C. J. and Vivian Bose, J.) which held quite definitely :

'The High Court has jurisdiction to transfer a suit pending in a Court subordinate to it to a Court Subordinate to another High Court.'

See also Ram Kumar Sheo Chand Rai v. Tula Ram Nathu Ram, ATR 1920 Pat 138(2), (Jwala Prasad, J.) where the learned judge said:

'I do not agree with, the view taken by Mr. Stanyon in AIR 1916 Nag 31, that a High Court bas no such power o determination and such a determination will in any way create anomaly or difficulty. An order of a High. Court under Section 22, that a suit shall proceed in a Court subordinate to another High Court will be final and it will not be open to another High Court to refuse the suit being tried in the Court subordinate to it having jurisdiction to try it'.

Indeed the competency of the petition was not objected to by learned counsel for the respondents,

7. The question now is whether the exercise of this power under Section 23(3) is in this case expedient. Now in considering a petition by a defendant under this section, the courts have laid emphasis on the circumstance that the plaintiff had the choice of the forum as arbiter litis and has chosen his court. Therefore it has been laid down that very strong reasons must he shown by the petitioner defendant to deprive the plaintiff of this choice. So it was said in Pragji Soorji and Co. v. Kalu Mal Shori Mal and Co., AIR 1924 Lab. 306, where a large number of cases on the subject were considered.

'The rule to he deduced from the authorities, particularly the most directly applicable, Jawahir Kumari v. Naresh Chandra, 1 Pat LT 389: AIR 1920 Pat 365 and Hindustan Assurance and Mutual Benefit Society, Ltd. v. Mulraj, 27 Mad LI 645: (AIR 1915 Mad 608). is 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 he subjected if suit were brought in another competent court. Here I can discern no such intention on the part of the present plaintiff's and all that the defendants have succeeded in showing is that it would be more convenient to them to have the action tried at Bombay.'

Reference may also be made to AIR 1940 Nag 145, already cited, for the proposition.

'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 must ultimately turn on the balance of convenience.'

In Logan v. Bank of Scotland (No. 2) (1906) 1 K. B. 141, file action was brought in England for damages for misrepresentation in the prospectus of a company of which the Dank of Scotland were bankers. All the parties lived in Scotland except one defendant Scott who resided in London and who was held out to be a substantial defendant, being an undischarged bankrupt. All the transactions which gave rise to the alleged cause of action took place in Scotland. The, Rank of Scotland had no branch out of Scotland except one in London. The Company was registered in Scotland; its business-was carried out exclusively in Scotland. In the circumstances the Court of Appeal restored the order of the Master in Chambers which had stayed the proceedings on the ground that the action was veracious and oppressive and an abuse of the process of the Court.

8. It seems to me that there is much similarity between the suit hero filed in Ottapalam and the action laid in England in the Scottish Bank case above, It was rather remarkable that the plaintiff did not know anything about the assignments effected by the 2nd defendant whom he brought in the suit and it required the 2nd defendant to reveal them and require the impleacling of the alienees concerned. The plaintiff, on being asked by me, hastened to disaffirm these alienations though he has not so far amended the plaint. The plaintiff further evinced keenness in this court, to get a stay of further proceedings in O. S. 57 of 1956 at the instance of the 15th defendant decree-holder. It would seem on the whole that the plaintiff and defendants 1 to 10 had not much of a real difference between them in the whole matter of partition or otherwise and Ottapalam was chosen as the venue of a merely seeming litigation between them. I am not impressed that the transfer from Ottapatam as prayed for is calculated to involve the plaintiff in-heavier expense. I think on the other band the defendants' alienees would be put to extraordinary hardship and grave inconvenience if the suit is not transferred.

9. Learned counsel: for the plaintiff said that if I decide to allow transfer it may be to the Ramanathanuram. Court. I therefore allow the petition but direct that the suit herein be transferred to the Ramanathapuram Sub-Court at Madura. There will be no order as to costs however.


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