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Gobinda Mohun Das and ors. Vs. Kunja Behari Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.380
AppellantGobinda Mohun Das and ors.
RespondentKunja Behari Das and ors.
Cases ReferredQuartz Hill v. Beal
Excerpt:
pleadings - scandalous matter--dishonesty, allegation of--affidavit--allegations on belief--grounds for belief to be stated--civil procedure code (act v of 1908), order xix, rule 3. - .....in respect of three partnership businesses two of which are situated at dacca, the transfer of the suit to barisal would enhance rather than diminish the inconvenience to the suitors; secondly, that as some of the witnesses are residents of places other than barisal and must in any event be examined on commission, no substantial advantage is to be gained by a transfer of the suit to barisal; and thirdly, that records of previous litigations between the parties in barisal courts may be produced at dacca, with quite as much facility as at barisal. it has further been suggested that as the plaintiffs are arbiter litis, they have the right to bring their suit in any court which the law allows, and the suit ought not to be transferred unless it is clearly established that the balance either.....
Judgment:

1. We are invited in this Rule, under Sections 22 and 24 of the Civil Procedure Code of 1908,to transfer a suit pending in the Court of the Subordinate Judge of Dacca to the Court of the Subordinate Judge at Barisal. The suit was instituted on the 12th March last by the plaintiffs' Opposite Party for dissolution of three partnership businesses, for accounts and for incidental reliefs. The 6th of May was fixed for settlement of issues, but as the defendants have obtained time from the Court to file their written statements, the suit is still at the preliminary stage. On the 25th May last, the Subordinate Judge made an order for production of documents against the defendants who are applicants before this Court. On the 1st July these defendants applied to this Court for transfer of the suit and obtained the rule now under consideration. The substantial grounds upon which the transfer is sought are three-fold; namely, first, that the main partnership business in respect of which dissolution is now asked for, is carried on at Barisal, and the papers of that business which must be produced and examined at the trial of the suit are in that town, so that if the case is heard at Dacca and the papers are required to be produced there, the work of the business will be interrupted and the business itself may be completely ruined; secondly, that the majority of the witnesses likely to be called by both sides are men residing in the district of Barisal and their examination, at Dacca or on Commission at Barisal would lead to much inconvenience and involve needless expense; thirdly, that the records of numerous cases decided by the Civil, Criminal and Revenue Courts at Barisal which will have to be called for to disprove the case of the plaintiffs and establish the defence may be more conveniently examined at Barisal than at Dacca. The application has been strenuously opposed on behalf of the plaintiffs as well as some of the defendants whose interest appears to be identical with that of the plaintiffs. On their behalf it has been urged, first, that as dissolution is sought in respect of three partnership businesses two of which are situated at Dacca, the transfer of the suit to Barisal would enhance rather than diminish the inconvenience to the suitors; secondly, that as some of the witnesses are residents of places other than Barisal and must in any event be examined on Commission, no substantial advantage is to be gained by a transfer of the Suit to Barisal; and thirdly, that records of previous litigations between the parties in Barisal Courts may be produced at Dacca, with quite as much facility as at Barisal. It has further been suggested that as the plaintiffs are arbiter litis, they have the right to bring their suit in any Court which the law allows, and the suit ought not to be transferred unless it is clearly established that the balance either of convenience or expense is in favour of a transfer of the case. In support of this view, reliance has been placed upon the decision of this Court in the case of Khatija Bibi v. Taruk Chander Dutt 9 C. 980; 13 C.L.R. 182. It has also been suggested in the affidavit filed by the plaintiffs that the defendants are men of considerable influence at Barisal and are on terms of intimacy with the two Subordinate Judges of that district and that the transfer of the case to Barisal will place the plaintiffs at a disadvantage as they will not be able to Secure the services of good pleaders. It has been argued on the other hand that these allegations are untrue and scandalous and ought to be struck off from the record. It may be further added that each side has impugned the affidavit filed by the other, on the ground that it contravenes Order XIX, Rule 3 of the Code of Civil Procedure, inasmuch as the statements of the deponent are based on his belief the grounds whereof are not stated. After a careful consideration of the arguments addressed to us on both sides, we have come to the conclusion that in the interests of justice, the suit ought to be transferred from Dacca to Barisal.

2. Upon the materials which have been placed before the Court, it is manifest that although the suit is nominally for dissolution of three partnership businesses, there is practically only one business in full operation, and that is the one carried on at Barisal. It appears that the original business was started in Dacca in the name of Rambandhu a century ago; a branch of the business was established at Barisal about 1816 and another branch was established at Dacca about 1841. In the year 1859 the business of the parent firm at Dacca ceased, though annually an account book was prepared and the heading only was entered in it; and since 1892 the branch firm at Dacca has also ceased to carry on business. Under these circumstances, it is manifest that the business now in full operation is at Barisal and the records in respect thereof are retained in the same place. There can be no question, therefore, that the trial of the suit at Dacca and the consequent production and detention of the papers at Dacca will not only cause serious inconvenience to the parties but may hamper and injure the business itself. It is further clear that a large proportion of the witnesses to be examined are at Barisal and may be more conveniently examined there than at Dacca. The circumstance upon which stress was laid by the plaintiffs that some of the witnesses reside in places other than Dacca and Barisal and must consequently be examined on Commission at considerable expense and inconvenience, does not really touch the matter. It seems to us to be fairly clear that so far as examination of witnesses is concerned, the inconvenience is likely to be greater if the case is tried at Dacca than at Barisal. It cannot also be seriously disputed that the records of the previous litigations between the parties most of which are apparently in Barisal may be more conveniently produced and examined if the case is tried at Barisal than at Dacca. On a consideration, then, of all the circumstances, the conclusion is irresistible that whether tested from the point of view of expense or convenience, the place of trial ought to be Barisal. This brings us to a consideration of the allegations made in the thirteenth paragraph of the affidavit of the plaintiffs.

3. As we have already stated, it was argued on behalf of the petitioners that the allegations contained in that paragraph are untrue and scandalous and ought to be expunged or the affidavit ought to be directed to be taken off the file. It is well-settled, as pointed out in a work of high authority (Daniell on Chancery Practice Vol. I p. 336), that scandalous matter should be avoided in pleadings, and any proceedings before the Court may be objected to for scandal and the scandalous matter ordered to be expunged. If a statement of this character is inserted in an affidavit, it may be ordered to be taken off the file or the particular passage may be directed to be expunged. The Court may take action of its own motion or upon the application of the aggrieved party. But the question still remains, what is the test to be applied to determine, whether a matter is scandalous. There can be no doubt that allegations of dishonesty are scandalous, but they cannot be treated as such if they are relevant to the issue, for in the words of Lord Justice Cotton in Fisher v. Owen (1878) 8 Ch D. 653 'nothing can be scandalous which is relevant,' or as put by Lord Justice Brett in Millington v. Loring (1880) 6 Q.B.D. 196 the mere fact that these paragraphs stated a scandalous fact does not make them scandalous. The sole question is, as Lord Chancellor Selborne stated in Christie v. Christie (1873) L.R. 8 Ch. App. 499 whether the matter alleged to be scandalous would be admissible in evidence to show the truth of any allegation in the pleadings, which is material with reference to the relief prayed; Now, judged in the light of these principles, what is the position in the present case? A. vague allegation is made that one of the defendants is a man of very great influence in the town of Barisal, and to the information and belief of the deponent, is on terms of intimate friendship with all the leading members of the Barisal Bar as well as the Government Officials; from this we are invited to draw the inference that the members of the Bar will be so untrue to the traditions of their profession that the plaintiffs will not be able to secure the services of good pleaders. There is not the remotest suggestion that the plaintiffs have approached any individual members and have been refused legal assistance in the matter of this litigation. The charge, therefore, comprehensively brought against all the members of the Bar, must be treated as reckless and without any solid foundation. It is further suggested that the two Subordinate Judges are tenants of houses belonging to the Barisal branch of the firm which is under the management of the defendants. The deponent does not venture to state explicitly that the plaintiffs do not expect justice at the hands of these Subordinate Judges, but the insinuation obviously is that these Judicial Officers are likely to be prejudiced in favour of the defendants. In our opinion, an insinuation of this character ought not to have been recklessly made in an affidavit filed in this Court. We may add that we have made a reference on this subject to the learned District Judge and the two Subordinate Judges. The latter officers stated that although the first defendant and his co-sharers are the proprietors of the houses occupied by them, they would not feel embarrassed if they had to try their cases and that as a matter of fact, they had tried the cases of these defendants against other people without suggestion of any objection. The learned District Judge further adds that, for many years, these defendants were the landlords of the houses in which successive District Judges resided, and that without any objection their cases had always been tried by District Judges. It further appears from the affidavit in reply on behalf of the petitioners that the Subordinate Judge of Dacca in whose Court the case is now pending resides in a house of which the landlords are three of the defendants, and yet up to the present stage no suggestion has been made by any of the parties that he was for that reason disqualified from trying the present suit. It is quite clear from the paragraph of the affidavit on behalf of the plaintiffs to which reference has already been made, that they do not resist the transfer on this ground, but merely stated the facts which convey a covert insinuation against these Judicial Officers. As was observed in the case of Brooking v. Moudslay (1886) 55 Law Times 343 allegations of dishonest conduct should never be made in pleadings if no relief is sought on that ground. We regret that statements of this character should have found place in an affidavit filed in this Court and we direct that paragraph 13 of the affidavit of Jadu Nath Das be expunged.

4. There is only one other observation which we wish to make in connection with this matter. As already stated, each of the parties assailed the affidavit filed on behalf of the other on the ground that it was in contravention of Order XIX, Rule 3 of the Code. There can be no question that each of the affidavits is to some extent open to criticism. But as considerable laxity in these matters has been tolerated in the past, and as in this case the facts and circumstances can be gathered with sufficient certainty from the records before us, we do not propose on the present occasion to reject the affidavits or to make any special order for costs as we should otherwise have felt inclined to do. We need only invite attention to the observations of the Court of Appeal in the case of Re Young Manufacturing Co. (1900) 2 Ch. 753, and to the judgment of Sir George Jessel in Quartz Hill v. Beal (1882) 20 Ch. D. 501 at p. 508.

5. If in future an affidavit is filed in which allegations are made on belief without a statement of the grounds for such belief, the Court will be prepared, if objection is taken, to enforce the strict rule.

6. The result, therefore, is that this Rule is made absolute and the suit is transferred to Barisal to be tried by such Subordinate Judge there as may be determined by the District Judge. The petitioners are entitled to their costs of this Rule. We assess the hearing fee at five gold mohurs.

7. Let the record be sent down at once.


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