1. This Rule was granted, calling upon the opposite party to show cause why a suit pending in the Court of the District Judge of Hooghly should not be transferred to the Court of the Additional District Judge at Howrah.
2. The suit was one under Section 92 of the Civil Procedure Code for the removal of the defendant-opposite party from the office of Mutwalli of a waqf property and for other reliefs. The application for transfer was made on the ground of convenience of the parties. The District Judge of Hooghly was moved by the petitioner for transferring the case, but he disallowed the application, being of opinion that a suit coming under Section 92 of the Civil Procedure Code 'requires authorization by the Local Government in the case of a Court which is not the principal Civil Court of Original Jurisdiction.'
3. Section 92 of the Civil Procedure Code provides that a suit may be instituted in the principal Civil Court of Original Jurisdiction or in any other Court empowered in that behalf by the Local Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate.
4. The learned District Judge relied upon the provisions of Section 92 mentioned above. But Section 8 of the Bengal, N.W.P. and Assam Civil Courts Act (XII of 1887) lays down that Additional Judges may be appointed when the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal. And Sub-section (2) of the section says that Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them and in the discharge of those functions, they shall exercise the same powers as the District Judge.
5. It appears that the District Judge of Hooghly by his order, dated the 4th October 1917, assigned the function of a District Judge relating to all suits cognizable by the District Judge under any Act in force for the time being, arising within the executive District of Howrab, to the Additional District Judge of Hooghly located at Howrah, and this assignment of function includes trial of suits under Section 92 of the Civil Procedure Code. That being so, the Additional District Judge at Howrab, by virtue of the assignment of function, is empowered to exercise the same powers as the District Judge in suits under Section 92 of the Civil Procedure Code.
6. We think that in such cases it is not necessary that the Court should be empowered by the Local Government, and that 'any other Court empowered in that behalf by the local Government,' in Section 92 of the Code, probably refers to Courts such as the Subordinate Judges' Courts. The suit can, therefore, be tried by the Additional District Judge at Howrah and it can, there-fore, be transferred to that Court.
7. We think that the case should be transferred to the Howrah Court on the ground of convenience. It appears that all the properties are situated within the jurisdiction of the Howrah Court; both the plaintiffs and the defendants reside within the jurisdiction of that Court, and all the witnesses for the plaintiffs are residents of Howrah. The plaintiff in his petition stated that he believed that almost all the witnesses for the opposite parties were also residents of Howrah. In the counter affidavit it is stated, that some of the witnesses for the opposite party, including several Pleaders of the Hooghly Court who are residents within the jurisdiction of the Hooghly Court, would have to be summoned and that the opposite party has already incurred costs in paying the fees of the Pleaders at Hooghly. The petitioner, however, is willing to pay all these costs.
8. We accordingly direct that, upon the petitioner paying to the opposite party the fees which the latter has paid to his Pleaders in the Hooghly Court (the amount whereof to be ascertained by the Court below) within a fortnight of the amount being so determined, and upon the petitionor undertaking to pay the additional costs which may be incurred by the opposite party in examining his witnesses from Hooghly, the suit mentioned in the petition now pending in the District Judge's Court at Hooghly be transferred to the Additional District Judge at Howrah.
9. If the petitioner does not pay the amount of fees paid by the opposite party to his Pleaders in Hooghly within the time specified, this Rule will stand discharged with costs.