Venkatasubba Rao, Offg. C.J.
1. It is unnecessary to decide what the true nature of the order made by Sir Vepa Ramesam, the learned Officiating Justice is - whether it is judicial or administrative or quasi judicial. The order having been made without notice, whatever the nature of that order may be, the party who feels aggrieved, we think, has a right to apply that the order be reconsidered. Both under Clause 13 of the Letters Patent and Section 24 of the Code of the Civil Procedure, the High Court has power to withdraw a suit from a Subordinate Court and try and dispose of the action itself. Section 24 of the Code provides that such an order may be made by the High Court of its own motion without notice to the parties and at any stage of the suit; Clause 13 of the Letters Patent says that for purposes of justice the High Court may remove a suit from a Subordinate Court and try and dispose of it as a Court of Extraordinary Original Jurisdiction. It is significant, though we base no argument upon it, that while Clause 13 of the Letters Patent enacts that reasons shall be recorded for the order of transfer, Section 24 of the Code contains no such limitation upon the power of the High Court. In this case nothing turns upon it as Ramesam Officiating Chief Justice has given reason for his order. The learned Advocate-General says that his application is for an order to re-transfer the case under Section 24, Clause (b)(iii) Civil Procedure Code. The short question is, has a case been made out for re-considering the order of Ramesam, Officiating Chief Justice.
2. The suit was filed in 1930 and almost every order that the lower Court has made, has been the subject of attack in a Civil Revision Petition filed here. Applications and counter-applications have been made and orders relating to discovery and inspection have been appealed from, with the inevitable result that the trial of the case on its merits has not yet begun. So far there has been nothing but a preliminary skirmish as Jackson, J., very pointedly remarks in his judgment reported in Ramanathan Chettiar v. Rajah Sir Annamalai Chettiar : (1934)66MLJ451 . 'At this preliminary stage' the learned Judge goes on to say:
The function of the Court is simply to see that the pieces are set up -aright for a fair game.
3. These observations were made in January, 1934, but unfortunately even on the date of the order of Ramesam, Officiating Chief Justice, made eighteen months later, the parties were still engaged in 'preliminary skirmish' and the case was not taken up for being tried on its merits. We are not trying to apportion the blame between the plaintiff and the defendants, but the fact remains that the interests of justice demand that the trial of a case of this nature should not be indefinitely prolonged. On the Original Side of the High Court orders for inspection and discovery are made, as a matter of course, and even in the heaviest of suits, it is inconceivable that by any kind of contrivance the trial of the action can be postponed by the propriety of every interlocutory order being called in question. In this unfortunate case this is precisely what has happened. At the end of five years the trial of the case has not commenced; in the meantime several orders have been made and several Revision Petitions have been disposed of. In an order made by Madhavan Nair and Pandrang Row, JJ., in the course of this litigation, they made some trenchant observations in regard to the delay caused in the trial of the suit. The order of the learned Officiating Chief Justice refers not only to considerations bearing on the speedy disposal of the suit but to other matters also. In making an order of the kind in question, the High Court is not bound merely to consult the convenience of the parties; indeed, as we have already observed, CI. 13 of the Letters Patent expressly enacts that for purposes of justice High Court may make an order of transfer suo motu. The learned Officiating Chief Justice says in his order that he feels constrained to transfer the suit ' in the interests of purity of administration of justice '. But such considerations as these have no necessary relation to arguments based on convenience; they transcend any personal grounds which it may be open to a party to urge. What are the grounds of personal nature that are urged? It is said that the plaintiff has intimated in the lower Court that he proposes to examine 101 witnesses. The plaintiff's counsel Mr. Duraiswami Aiyar says that he does not intend to cite more than a small number of witnesses. The defendants have not in their affidavit indicated the number of witnesses they intend to examine, and that seems to suggest that the number of their witnesses is, in any event, not so large. The objection based on the necessity to translate the documents is certainly not formidable. As has been pointed out by the respondent's counsel, every document will have to be translated at some stage or other, having regard to the course this litigation is likely to take. But as we have said, it is unnecessary to canvass the reasons based purely on the convenience of parties. As regards the suggestion that the order of Ramesam Officiating Chief Justice, cast a slur upon Rajah Sir Annamalai Chettiar the leading defendant in the case, we see no reason for such apprehension; the terms of the order are quite general and we are not prepared to hold that it was intended to cast aspersions upon any particular party. The learned Advocate-General suggests that a slur is cast upon the integrity of the subordinate judiciary by the order in question. We are not prepared to read the order in that sense. Such an imputation would have been grossly unfair and we do not think that the learned Officiating Chief Justice intended to cast any sort of reflection, upon the entire body of the judiciary.
4. We must in the result hold that it has not been shown that an order of re-transfer is necessary in the interests of justice. The appeal and the applications stand dismissed.