1. The petitioner brought a suit on 25-4-1953, on the Original Side of this Court against the opposite party Dwip Narain Singh and also one Chandra Sekhar Singh on a claim of Rs. 21,500/- on the averment that pursuant to an agreement between it and the defendants in February 1944, that they would sell and deliver bricks to it at the agreed price and a mutual open and current account will be kept in respect thereof, the defendant did supply bricks between February, 1944 and July, 1950, and that it is found that the payments which the plaintiff had made form time to time have resulted in an over-payment to the defendants to the extent of Rs. 21,500.
On 13-8-1955, a suit was brought by the opposite party Dwip Narain Singh alone as plaintiff in the 2nd Court of the Subordinate Judge at Hooghly on a claim of Rs. 7236/- on account of bricks said to have been supplied to the present petitioner as per written order dated 14-7-1950. The defence of the present petitioner in that suit is that the supply of the bricks mentioned In the plaint was really in pursuance of the agreement of February, 1944, on the basis of which he has already brought the suit on the Original Side.
In this written statement in the suit brought by the petitioner on the Original Side Dwip Narain Singh pleaded that a fresh contract was entered into by the plaintiff and himself on 14-7-1950, and bricks were supplied by Dwip Narain Singh in performance of that contract and that the price of Rs. 2728/- due for the same had not been paid. He suggested further that the present petitioner's suit was nothing but an attempt on his part to counteract Dwip Narain's claim.
2. An application by the petitioner to have the suit brought in the Hooghly Court stayed under Section 10, Civil P. C. was rejected and this Court refused to interfere with that order. The petitioner's prayer now is that the suit brought in the Hooghly Court should be transferred to this Court and tried on the Original Side of this Court analogously with the suit brought by him on 25-4-1953.
3. It appears to us that one of the main questions that has to be decided in both these suits is whether the supply of bricks after the written order of 14-7-1950, was or was not in pursuance of the previous agreement of February, 1944, that has been mentioned by the, petitioner and that it is desirable that both the suits should be tried analogously by the same Court, and for that purpose, it is necessary that the Suit brought in the Hooghly Court should be withdrawn for trial by this Court, on its Original Side.
4. It is contended by Mr. Mitter on behalf of the opposite party that in any case a prayer of transfer of the suit from the Hooghly Court to the Original Side should properly be made under Clause 13, Letters Patent and dealt with by the Judge dealing with such matters and that it will not be proper for us to take any action in this matter under Section 24, Civil P. C. Section 24 provides, among other things, that
'on the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage withdraw any suit from any Court subordinate to it and try to dispose of the same.'
The Hooghly Court being a Court subordinate to this Court, the High Court can clearly withdraw the suit from the Hooghly Court. It is equally clear that after such withdrawal the High Court can try and dispose of the same. When this has to be done, it is obvious that the trial has to take place before a Judge sitting on the Original Side of this Court. That is, however, no reason why the application cannot be made under Section 24, Civil P. C. and an order cannot be made thereunder.
We agree that an application can also be made for such transfer under Clause 13, Letters Patent. We do not think, however, that we would be justified in refusing the petitioner the relief to which we think he is entitled, merely because he has chosen to proceed under Section 24, Civil P. C. instead of proceeding under Clause 13, Letters Patent. Authority for this view can be found In the case of -- 'Srirangam Municipality v. Pa-laniswami Pilial,' : AIR1951Mad807 . Our attention has not been drawn to any decisionof this Court where a contrary view has been taken.
5. We therefore make this Rule absolute and order that Money Suit No. 4 of 1953 pending in the 2nd Court of the Subordinate Judge, Hooghly, be withdrawn therefrom and tried on the Original Side of this Court.
6. The prayer for analogous trial of it withSuit No. 1462 of the Court will have to be dealtwith after the withdrawal is made. In the circumstances of this case, the parties will beartheir own costs of this Rule.