1. This is an application under Clause 13 of the Letters Patent for transfer of a suit pending in the Subordinate Judge's Court at Jalpaiguri to this Court to be tried and determined in its Extraordinary Original Civil Jurisdiction.
2. The suit has been filed to recover a large estate, called Baikunthpur, situated in the district of Jalpaiguri being one of the largest estates in that district and concerns a family which is of importance not only in that district but also in the province of Bengal.
3. This family, originally Koch, apostatised to Hinduism, and although affected to be Hindus it has retained and is governed by family customs which as regards some matters are at variance with Hindu law. It appears that the law of primogeniture governs succession to the estate; females are excluded from inheritance. The successive holders of the estate are called Raikuts. Mokrund Deb Raikut v. Bissessuree, 9 S. D. A. R. 159 and Fanindra Deb v. Rajeswar Dass, 12 I. A. 72 : (11 Cal. 463 P. C.).
4. The last holder of the title and of the estate was Prasanua Deb Raikut (hereinafter called 'The Raikut') who died in December 1946, leaving a widow, Rani Ashrumati (defendant 1) and a daughter by her Srimati Prativa who has been married to a gentleman of the name of Dr. S. K. Bose who as the name suggests is a caste Hindu. The Raikut had no son by the Rani.
5. The plaintiff in this suit claims to be the eldest son of the Raikut by a lady of the name of Srimati Renchi Debi, a Lepcha by birth, coming not from a very well-to-do family in the district of Darjeeling. It is alleged that she was married to the Raikut according to the Gandharva form of marriage. This form of marriage rests upon agreement and springs from mutual love.
6. There is no doubt that the Raikut for many years lived with this lady Sm. Renchi Dabi as man and wife, and had three sons by her, plaintiff and defendants 5 and 6.
7. Immediately on the death of the Raikut, Rani Ashrumati purported to perform what is called the accession ceremony (formal installation to the guddi) that is to say, she purported to become the holder of the estate and possibly of the title though it is said that females in the family do not inherit the estate. This ceremony was approved by the leading men of the district who in token of their approval signed a document. Among them were some of the leading lawyers of the district and two gentlemen who sometimes served in the Ministry of the Province of Bengal.
8. Following the accession ceremony, defendant 1 took and has been in possession of the major part of the estate, if not of the whole of it. Naturally, therefore the officers of the estate both old and new are under the control of Rani Ashrumati.
9. The plaintiff who is a minor has filed the suit by his next friend, his mother, inter alia, for a declaration that he is entitled to the title of Raikut and recover the estate.
10. The defendants in the suit are Rani Ashrumati (defendant 1), three distant relations of the Raikut (defendants 2 to 4), and the other two minor sons of Sm. Renchi Debi (defendants 5 and 6).
11. The plaintiff alleges that his mother was lawfully married to the Raikut and he is his eldest legitimate son of the Raikut and as such is entitled to the title and to the estate.
12. Defendant 1 filed her written statement on 19-1-1948, wherein she denied that there was any marriage between the Raikut and Sm. Renchi Debi. According to her Sm. Renchi Debi was only a mistress of the Raikut and therefore the plaintiff is not the legitimate son of the Raikut and as such he is not entitled to succeed to the estate or to the title.
13. Defendants 2 to 4 have also filed their written statements. They deny the marriage of the plaintiff's mother with the Raikut and the legitimacy of the plaintiff. They assert their own respective claims to the title and to the estate.
14. Defendants 5 and 6, brothers of the plaintiff, have not yet filed their written statement but their case appears from the petition and the affidavit which they filed in the application for the appointment of a Receiver, which the plaintiff made soon after the filing of the suit.
15. This application for transfer was made on 30.4.1948. But I do not know the reasons why it was not heard so long.
16. Mr. S.C. Bose, on behalf of the applicant, has taken three grounds in support of the application ; (1) that the case involves difficult questions of law and fact and should be tried by the High Court; (2) that the balance of convenience is in favour of the trial of the suit in this Court; (3) that the plaintiff will not get a fair trial in the Court at Jalpaiguri.
17. As to ground (1) there is no doubt that there are difficult questions of law and fact. Without specifying the issues, I may indicate that the following questions will have to be tried: (a) To what extent has this family assimilated Hindu custom and habit; (b) whether marriage according to Gandharva form is valid in this family; (c) whether there could be a marriage between a Lepcha female and a Koch male; (d) whether in fact there was a marriage between the Raikut and Sm. Renchi Debi and (e) how far if at all, has the family discontinued any custom it once adopted
18. These are no doubt difficult questions of law and fact. But on this ground I am not disposed to make any order. I have not come across in the reported cases any decision granting a transfer merely on this ground. Many important cases decided by learned Subordinate Judges had gone up to the Privy Council where their judgments were upheld and have become leading cases.
19. If I may say so with respect, Subordinate Judges have tried with great ability and fairness cases of the type under consideration. Indeed Fanindra Deb Raikut's case, (12 I. A. 72 : 11 Cal. 463 P. C.) was decided by a District Judge, whose judgment though reversed by the High Court was held to be right by the Privy Council.
20. Ground (2): This ground hag been subdivided by Mr. Bose under the following header (i) Convenience of parties; (ii) Convenience of witnesses; (iii) Convenience of counsel; (iv) Convenience as to production of documents ; (v) length of the hearing and (vi) Costs.
21. I now proceed to consider the different heads. (His Lordship considered the matter and proceeded.) On the whole however I think that the balance of convenience is in favour of the trial at Jalpaiguri.
22. But even if I had thought that the balance of convenience was in favour of the trial in this Court, I would not be disposed to transfer the suit. The plaintiff had the choice of forum. In this case lie chose the forum at Jalpaiguri though he could institute the suit in any of the Courts within the jurisdiction of which the estate, which is a big one is situate. I presume that the plaintiff chose the Jalpaiguri Court as he thought it was a convenient forum. The defendants have taken part in the proceedings already instituted in the Jalpaiguri Court.
23. This ground of Mr. Bose, therefore has| not commended to me and I am not disposed to transfer the suit on this ground.
24. Ground (3): Mr. Bose contended that the learned Judge at Jalpaiguri betrayed a very great want of discretion and unusual sharpness of procedure and harshness towards the plaintiff which made it impossible that he would be able to deal with the case on the merits with impartiality or freedom from prejudice. Counsel based his contention on three orders made by the learned Judge one made on 27th February and two on 17-4-1948. He refer me to the case of Thakoor Kapilnauth Sahai Deo v. The Government, 10 Beng. I. R. 168.
25. In that case, A filed a suit in forma pauperis through his mother and guardian for the recovery of an estate. On 2nd September the suit was postponed to 23rd September and the plaintiff knew perfectly well that that date had been fixed either for settlement of issues or for the final disposal of the suit. On that date, the defendant's pleader appeared in Court and filed the written statement, The case however was called on for hearing and was dismissed for default, as no one appeared for the plaintiff and the plaintiff was ordered to pay the defendant's costs and Rs. 1650 for the stamp fee to Government (which he would in the first instance have had to pay if he had not been allowed to sue as a pauper). On the next day, the plaintiff's agent presented a petition praying that the suit might be restored and heard, explaining the circumstances under which he had been unable to appear in Court on the 23rd. This petition was presented in open Court, and the Government Pleader was present at that time but the Judge declined to go into the matter on that occasion, and adjourned the consideration of it until 6th November, Notwithstanding this the Judge on 25th September, of his own motion and not on any application made to him by the Government, sent a rubakari to the Collector informing him that Rs. 1650 were due to the Government by the plaintiff for stamps, under the decree of 23rd September and were to be realised from him.
26. On 30th September the plaintiff presented a petition to the Court asking that execution in respect of these Rs. 1650 might be stayed pending the application for re-hearing which had been adjourned to 5th November. That application was refused on the ground that the Court had no jurisdiction to grant a stay although as a matter of fact and law, he had the jurisdiction.
27. On 5th November the plaintiff's application for a re-hearing was heard and it was ordered that, on the plaintiff's paying the defendant's costs the judgment by default passed on 23rd September should be set aside and 5th December was fixed for determining the issues. On these facts, Macpherson J., observed:
'Although, I think that there was no absolute illegality in passing judgment by default against the plaintiff on that day, it does seem to me that there was a very great want of discretion and most unusual sharpness of procedure and harshness towards the plaintiff in the course adopted ..... If there had been no other reason for a little forbearance, the knowledge that up to within a day or two previously, the plaintiff was actively prosecuting his suit ought to have made the Court hesitate before dismissing it outright in such a fashion. It was wholly unnecessary moreover, to punish the plaintiff's default with such condign punishment, inasmuch as if the plaintiff had been present, nothing could properly have been done on that day beyond fixing a future date for the settlement of issues. The defendant's written statement was not filed until the 23rd, and it was absolutely impossible for the plaintiff's pleaders, if they bad been the most skilled lawyers in India to have proceeded either with the hearing of the case or with the settlement of Issues without having had an opportunity of reading and carefully considering the written statement, and the various questions raised by it. The utmost that could have been done on the 23rd, had all parties been present, would have been to adjourn the case for settlement of issues and the Court seeing the position of things would only have acted reasonably and properly and I may add would only have acted as Courts under such circumstances usually do act in the absence of special or repeated negligence on the plaintiff's part,--if it had simply adjourned the case fixing a future day for the settlement of Issues.'
28. Referring to the rubakari the learned Judge said :
'it was an order for execution and intended as such ; that cannot be doubted. .... Now I must say that when a plaintiff whose suit has been dismissed comes in and applies for a re-hearing and when the Court fixes a future day for hearing the application, instead of disposing of it at once, it does seem to me a most extraordinary and improper proceeding that the Court should, of its own motion and without ever being called upon by any of the parties, take action and proceed to execute the decree against the plaintiff. And it is the more remarkable that such a step should have been taken in this particular case when it is considered that the plaintiff was suing in forma pauperis and that he was a minor suing through his mother and guardian.'
29. There was a variety of other matters, to which it is not necessary to allude more particularly. The learned Judge concluded by saying
'looking at the whole course of this case from the beginning up to the present time, I think the plaintiff and his advisers may well feel considerably aggrieved and think that the (Judge) is in a state of mind with reference to this case which makes it impossible that he should be able to deal with it on the merits with impartiality or freedom from prejudice.'
30. On these considerations the learned Judge directed the suit to be transferred to this Court for trial in the exercise of its extraordinary original civil jurisdiction.
31. Is the principle laid down in Thakoor Kapilnauth Sahai Deo v. The Government, 10 Beng. L. R. 168 applicable to this case
32. In order to appreciate Mr. Bose's contention it is necessary to state the facts and circumstances under which the learned Judge made the three orders above referred to.
33. As I have said there was an application for the appointment of a receiver. All the defendants, except defendant 1, supported the application. Defendant 1 filed her objection on 2-2-1948. The plaintiff was to file his reply on 23rd February, but he filed the reply on 24th February, explaining one day's delay. To the affidavit in reply the plaintiff annexed certain documents to show waste and misappropriation by defendant 1 to satisfy the Court that it was just and convenient that a receiver should be appointed.
34. Immediately thereafter defendant 1 made an application praying that 'the new matter put in the reply should be expunged and the documents filed with it should be rejected ; alternatively, defendant 1 should be given a month's time to deal with the new matters.'
35. On 27th February, the learned Judge made an order to the effect that 'the plaintiff would not be allowed to canvass or rely on new charges, allegations or matters if any made in the reply filed by the plaintiff on 24-2-1948, unless they came within the meaning or ambit of reply to the averments made in the affidavits filed previously on the defence side.'
36. On 3-3-1948, by consent the hearing of the application for receiver was adjourned till 26th April.
37. On 6-3-1948, Mr. Surendra Kumar Bose, a pleader of the Jalpaiguri Court, was appointed guardian ad litem of defendants 5 and 6, who up to that time had not been represented. 38. On 9-3-1948, defendant 1 applied that the date of the hearing of the application for receiver 'may be adjourned by a week.' The Subordinate Judge ordered the petition to be put up on 16-3-1948 for orders.
39. On 16-3-1948, on the joint petition of the parties the date of hearing of the application for receiver was fixed on 10-5-1948.
40. On 17-3-1948, the plaintiff made a petition praying for grant of a month's time to defendant 1 to file if she was so advised, an affidavit in answer to the plaintiff's affidavit filed on 24-2-1948. Obviously, the plaintiff's wanted that the 'new matters' which he had put in his reply should be taken into consideration by the Court, giving to defendant 1 an opportunity to answer them. This application was rejected by the Subordinate Judge on the ground that the matter was concluded by the order of 27-2-1948. 41. On 6-4-1948, the plaintiff made another petition filing copies of certain letters and documents which according to the plaintiff and/or his legal advisers,
'prove that the plaintiff is the eldest legitimate son of the Raikut and that his mother had been treated by the friends of the Raikut and the members of his family and by high government Officials as the wife of the Raikut.'
42. On 17-4-1928, the learned Judge observed:
'In my considered opinion the belated prayer richly deserves rejection for more than one ground . . . .Further .... there should be a dead line to filing documents and affidavits in such a matter. In view of the above grounds and also considering the fact that if the plaintiff is allowed to produce the documents in question at any time he likes, the other side is likely to be prejudiced. I reject the petition of the plaintiff.'
43. I have underlined (here italicised) the important words.
44. The guardian ad litem appointed as aforesaid had filed on behalf of the minor defendants three petitions on 8-4-1948 and an affidavit on 9-4-1948. The learned Judge by one of the said orders made on 17th April removed him and in his place appointed Mr. Rukmini Kanta Bhowmic, a 'senior' pleader of the Jalpaiguri Court as the guardian ad litem tot the minors observing
'the above step (removal of the guardian, ad litem) necessarily leads to the conclusion that all the petitions filed by Sri Sourendra K. Bose should be rejected and accordingly these have been rejected.'
In this connection the learned Judge made a long order, the relevant portion of which is as follows :
'Heard the guardian ad litem. In the petitions filed on 8-4-1948, the guardian ad litem stated that he had received instructions from the natural guardian of the minors to take steps in the receiver matter and to file written statement and so be required two days' time to take steps in the receiver matter and two months' time to file written statement .... On 9th April last before any orders on the petitions dated 8-4-1948 were passed the guardian ad litem filed the petition and the affidavit in the matter of the application for appointment of receiver unconditionally admitting the custom regarding succession as alleged by the plaintiff in the plaint and supporting the plaintiff's' application for appointment of receiver ..... The affidavit of the guardian ad litem shows that in it the plaintiff's claim has been unconditionally admitted by the guardian ad litem. It does not appear to me to be any part of the duty of a guardian to come with a petition merely admitting the plaintiff's claim against the minors .... In the circumstances the guardian ad litem should not have approached the natural guardian for instructions and acted under her advice. It was the clear duty of the guardian ad litem to make an independent enquiry about the matter involved and decide upon the line of action to be taken by him independently of any instructions of such natural guardian for the protection of the interests of the minors ..... For reasons already recorded, the guardian ad litem has shown his inability to safeguard the interests of the minor defendants in the present suit.'
45. On the same day, the learned Judge made another order which though not referred to by any of the parties before me in the course of the hearing of this application seems to be important. That order is :
'Plaintiff to put in talabana and other requisites for service of summons upon the newly appointed guardian ad litem by 22-4-1948.'
I shall show later in my judgment how this order is important in this application.
46. These are the facts relating to the orders.
47. I now proceed to discuss how far, if at all, the orders deserve the comments made by Mr. Bose on them.
48. Order dated February 24th : I shall assume that the plaintiff sought to introduce new matters in the reply. The law on this point is stated thus in Phipson's Law of Evidence Edn. 8, pp. 37-38 :
'Evidence in reply, whether oral or by affidavit, must as a general rule, be strictly confined to rebutting the defendant's case and must not merely confirm that of the plaintiff. The Judge, however, has a discretion to admit further evidence either for his own satisfaction or where the interests of justice require it.'
One of the cases relied on by the learned author for this statement of law is Gilbert v. Comedy Opera Co., (1881) 16 Ch. D. 594 : (43 L. T. 665). In that case there was an application by the defendant to take off the file affidavits filed by the plaintiff in reply on the ground that they were not confined to matters strictly in reply. Bacon V. C. said :
'Not that the plaintiff shall not file affidavits which are not confined to matters strictly in reply .... (but) the Court shall give leave to the defendant to answer them . . . I am bound not to exclude proper evidence, and the Court has power, as I hope it always will have power, to give liberty to the defendant to file new affidavits having full control in the matter.'
The reason why I have set out the observations of that experienced Vice-Chanceller is that, though the affidavit in reply should be strictly confined to matters strictly in reply, the Court has a discretion in the matter and is bound not to exclude proper evidence. Discretion means 'liberty of suiting one's action to circumstances'. The Court suits and must always suit its action to the circumstances acting within the proper limits of law. In this case strictly speaking the Judge was right. But did he exercise his discretion properly ?
49. On 2nd February, the application for the appointment of receiver was fixed for hearing on 15-3-1948. No guardian had been assigned to the minor defendants till 6-3-1948. This was presumably known to the learned Judge and all persons concerned. Before a guardian was appointed for the minors, and an opportunity given to him to present their case, the application could not be heard. It might be fairly taken, therefore, that on 24th February it was well known that the application for receiver could not possibly be heard some time.
50. Defendant 1 herself did not object to the new matters going in provided a month's time was given to her for dealing with the new matters. In these circumstances, I cannot conceive what prejudice any party would have suffered if the learned Judge had allowed the new matters to go in and give leave to defendant 1 to file an additional affidavit dealing with the new matters.
51. After all the procedure of the Court is to aid the administration of justice and not to hamper it. The law of procedure must be followed as it represents experience of ages and helps the administration of justice. But I apprehend where in the peculiar circumstances of at case, there is a conflict between the law of procedure and the substantial rights of the parties, the Court or a Judge is justified in ignoring, I should say it is the duty of the Judge or the Court to ignore, the procedure. In this case, though the Judge was strictly right in the view he took, I think he should have shown a little more forbearance (to use the words of Macpherson J. in Kapilnauth's case: (10 Beng. L.R 168)) and allowed the new matters to go in.
52. Order dated 17-4-1948: It is difficult to understand why the learned Judge removed the guardian ad litem. For what fault of his? It is as clear as day light that the plaintiff and defendants 5 and 6 are bound to go a long way together in the suit. They must prove and it, is to their interest to prove that their mother was legally married to the Raikut. The mother manifestly is the principal witness to prove marriage. She is the principal witness to say how, when in what form and in whose presence the marriage was performed.
53. Necessarily, therefore, the guardian ad litem would and must take instructions from the mother on this part of the case. If the marriage is not proved, the plaintiff fails and defendants 5 and 6 lose their status. Once the marriage is proved and held to be valid, it is prima facie clear on the authority of the two cases. I have cited that the state goes by the law of primogeniture to the plaintiff. Therefore, in my judgment, the guardian ad litem was not wrong in stating in the petition that the succession to the estate was governed by that law. Once that is conceded what defence could the guardian ad litem possibly take other than the one he took? The defence of the minors must necessarily be limited to a claim as to the accumulations and acquisition made by the Raikut.
54. On this point the guardian ad litem made the claim in this way:
'If the Court holds that a different rule of succession obtains in respect of the accumulations and acquisitions, defendants 5 and 6 would be entitled to vast properties valued at several lakhs of Rupees.'
55. I do not think in the circumstances of the case the guardian ad litem acted wrongly in taking instructions up to this point from the natural guardian of defendants 5 and 6 and making the admissions, which he did, as to the law of succession. The contest between the plaintiff and defendants 5 and 6 will arise after the marriage is proved when the issue would be what acquisitions and accumulations did the deceased Raikut make What is the law that governs succession to these acquisitions and accumulations The conflict is after and not before the marriage is proved.
56. I should think the guardian ad litem was rather hastily removed. Even so, I cannot say that the order removing the guardian was illegal.
57. An application under Section 115, Civil P. C., was made against the order of removal of the guardian and heard by a Division Bench sitting on the Appellate Side (R. C. Mitter and Clough JJ.), who dismissed it, the learned Judges not saying anything further than simply that the application was refused. But we know that Section 115, Civil P. C., applies to jurisdiction alone the irregular exercise or non-exercise of it or the illegal assumption of it. An order of the lower Court is not set aside because it is erroneous on facts or even on law.
58. It may be that their Lordships took the view that the learned Judge had jurisdiction to make the order and if he had jurisdiction to make the order he had jurisdiction to decide the matter rightly or wrongly. Therefore the order of removal should stand.
59. I am not at all concerned with the illegality or the irregularity or otherwise of the order. I am considering the order from a different point of view altogether, namely, whether the order betrays any want of discretion of the Court towards the plaintiff. It should be observed, however, that the order had not been made 'towards the plaintiff.' It might have had an indirect reaction on the plaintiff and/or his legal advisers. But if I am asked to decide as to whether the learned Judge properly exercised his discretion or not in removing the guardian ad litem, I should say he did not.
60. Second Order of the same day.--The observations I have made in connection with the first order of 27-2-1948, apply with full force to this order also. There is another thing to be observed in connection with this order. On this day the learned Judge directed, as I have said before, the plaintiff to put in talabana and other requisites for service of the summons upon the newly appointed guardian ad litem by 22-4-1948.
61. On 17-4-1948, the learned Judge knew that it would take some time for the newly appointed guardian ad litem to get himself ready with any petition and/or affidavit that he might file on behalf of the minors in support of or in opposition to the application for receiver. According to the learned Judge's own directions, the guardian ad litem was not to take instructions from the natural guardian of the minors, and was
'to make an independent enquiry about the matter involved and decide upon the line of action to be taken by him independently of instructions from the natural guardian.'
In a case of this magnitude, it is not possible for any lawyer (whatever may be his skill and ability) to make an independent enquiry and get ready within a short time. I may fairly presume, therefore, that on 17th April everybody knew that the application for the appointment of receiver would not be heard at least before a month. In these altered circumstances why was not the plaintiff given an opportunity to put in the new matters and the documents which according to him, proved two things ; (1) his prima facie title Jo the estate and (2) waste and misappropriation by defendant 1, matters which Court takes into consideration in an application for the appointment of Receiver.
62. As I said before, defendant 1 herself had no serious objection to the new matters and documents going in, if a month's time were given to her to file an affidavit in answer.
63. The learned Judge said, 'there should be a dead line to filing of documents and affidavits in such a matter.' But I should think that this dead line is not as strong as death. It is here that the Court is called upon to use its discretion. As a general rule, evidence should never be shut out. Opportunity should always be given to the parties to give evidence, if the justice of the case requires it. It does not matter if the original omission to give evidence arose from negligence or carelessness. However negligent or careless may have been the first omission and however late the proposed evidence, it should be allowed if that can be done without injustice to the other side. There is no injustice if the other side can be compensated by costs. But if the other side by the production of such evidence is seriously prejudiced which cannot be remedied, the Court shall exercise the discretion.
64. In this case defendant l herself did not and could not put forward any objection to the new matters going in save that she wanted some time to file an answer dealing with the new matters. If necessary the learned Judge might have granted costs against the plaintiff or put the plaintiff on terms. But to refuse the 'new matters' on the ground that there should be a dead line to filing of documents and affidavits in a case of this kind and under the circumstances I have stated above amounts to refusal on the part of the Court to use its discretion where it should use it.
65. For the above reasons I think that the learned Judge in making the orders aforesaid did not exercise his discretion properly. I am not suggesting that any of the orders was illegal. All that I am saying is that the learned Judge should have shown a little more forbearance and treated the case more sympathetically.
66. But even though I regard the orders as wanting in discretion and unsympathetic (and in that sense harsh), I am not prepared in this case to go to the length of saying that
'looking at the whole course of this case from beginning up to the end, the plaintiff and his advisers might well feel considerably aggrieved and think that the Judge was in a state of mind in relation to this case which made it impossible that he should be able to deal with it on the merits with impartiality or freedom from prejudice.'
If, therefore, Mr. Bose's third ground of transfer is equivalent to the rule enunciated in Kapilnauth's case, (10 Beng. L. R. 168) it must fail.
67. Clause 13 of the Letters Patent confers a very wide discretion on the Court in the matter of removal of suits. As the discretion given is so large, it is necessary that it should be carefully and judiciously used.
68. Clause 13, so far as it is material to this case, is:
'The High Court shall have power to remove, and to try and to determine,.........when the said High Court shall think proper to do so,............for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court.'
69. The reported cases show that the Court has removed suits on the following grounds: (1) Balance of convenience in favour of trial in the High Court when it is proved to the satisfaction of the Court that justice requires it. (2) When the plaintiff commences an action in a Court not on account of any legitimate advantage which a trial in that Court will give him, but for purposes entirely foreign to the legitimate purpose. (3) When the Judge of the Court from which a transfer is sought is in a state of mind which makes it impossible that he should be able to deal with the case on the merits with impartiality or freedom from prejudice.
70. Are these grounds exhaustive or is there any other ground on which the Court acts ?
71. Clause 13 empowers the High Court to remove a suit whenever it thinks proper so to do in the interests of justice.
72. What, then, is the meaning of the expression 'in the interests of justice'? It must mean, I think, to promote or advance the cause of justice. Justice is a principle which regulates the distribution of things, valued by men awarding them to some, denying them to others. It is, at the same time, a principle whereby each man's worth is appraised. Justice gives to 'every one that which is his.' It is not a free gift from the Court. The subject of a civilised country is entitled as a matter of right to get it 'freely without sale, fully without any denial and speedily without delay.' The Court only appraises it. In doing so the Court must act and appear to act without partiality and without prejudice or as it is often expressed, 'justice should not only be done but should manifestly and undoubtedly seem to be done.'
73. If a litigant feels that he will not get justice in a particular tribunal, he can demand a transfer of the case to some other Court. In this view I am fortified by a judgment of the Judicial Committee, Mohur Singh v. Ghureeba, 15 W. R. 8: (6 Beng. L. R. 495). That was a case in which before the Privy Council the appellant sought to set aside a finding of fact made by the lower Court. Mr. Leith on behalf of the appellant contended inter alia that the testimony of the witnesses who deposed against the appellant should not have been accepted as they were prompted by a general feeling against the appellant in the district. Their Lordships observed (pp. 9-10):
'Certainly the general feeling of the district seems to be strongly against him............But can we hence infer that the respondent's is a false story?. . . . If he (the appellant) felt that he was not likely to have a fair trial before the local Judge with that feeling in the district against him, his proper course was to petition the European Judge to remove the case into his Court and to try it in the first instance.'
The words I have underlined (here italicised) are very important. The observations are full of meaning and furnish a ground on which a Court may act in a matter like the one under consideration.
74. The question is for the Court to determine whether the applicant who applies for the transfer feels that he is not likely to have a fair trial in the other Court.
75. In coming to a conclusion on this point, the question for consideration is what is the effect likely to be produced in the mind of the party and not in the mind of the Judge. It is the feeling of the party that has to be ascertained and it necessarily depends on the individual concerned, his temperament and failing, his interest and circumstances.
76. If the Court on a consideration of all the facts come to the conclusion that the applicant feels that he is not likely to have a fair trial in the Court from which he seeks the transfer it is the duty of the Court to make the order.
77. In this case I ask myself why has the applicant made this application? The plaintiff filed the suit at Jalpaiguri. He made an application for a receiver. He took all steps necessary for his application. Why all of a sudden the plaintiff and/or his legal advisers changed their mind and sought to change the venue of the trial.
78. I asked the Advocate-General, who appeared on behalf of defendant 1, the reason. He said it was a mala fide application made with a view to delay the hearing of the application for receiver. (After considering the facts and circumstances of the case his Lordship concluded:)
79. I have given this case my most anxious attention as it is a case of very great importance and as there is no appeal from my order. I have weighed every fact, considered every aspect of the case. I have considered the convenience and inconvenience of parties and of the witnesses. Weighing the conflicting considerations arising in this case, I have made up my mind.
80. To me it seems that far more than the convenience of parties and witnesses, more than anything that may happen at the trial is the importance of securing the confidence of parties in the fairness and impartiality of the tribunal which is next only to the importance of securing a fair and impartial tribunal.
81. Therefore, I direct that the suit be transferred to this Court to be tried and determined in its extraordinary civil jurisdiction. Costs in the cause.
82. I desire only to add that whatever I have said in this judgment is on the materials before me and is confined only to this application. It will not in any way prejudice the parties in any subsequent proceeding in this suit or at the trial.