DAVID Vs. JAMES ARTHUR EDWARDS

JUDGEMENT

(1.) Six out of nine defendants in O. S. No. 100/1956 on the file of the Subordinate Judges Court at Trivandrum have filed this application praying that the suit may be transferred to the file of the District Judges Court at Nagercoil. The main ground urged in support of that prayer is that another similar suit, O. S. No. 118/1956, is pending in the Nagercoil District Court against the same defendants and that therefore it will be more convenient for them to have both the suits tried in the Nagercoil District Court. The plaintiffs in the two suits are different, though both the suits have been instituted by the two sets of plaintiffs in their representative capacity as per the sanctions obtained under S.92 of the Code of Civil Procedure. The properties involved in the two suits and the reliefs claimed are stated to be substantially the same. The properties are alleged to be trust properties endowed for the benefit of the Christian community belonging to a particular denomination represented by the plaintiffs. The main reliefs claimed in the suit are that the defendants may be removed from their management of these properties, that they may be called upon to render accounts of their management and that scheme may be settled by the court for the proper management of the properties. The plaintiffs in O.S. No. 100/1956 (who are the respondents to the present application) object to the transfer of that suit to the Nagercoil District Court.

(2.) The application purports to have been filed under S.22, 23 and 24 of the Code of Civil Procedure. Of these sections, S.24 which deals with the general power of the High Court and the District Courts to transfer at any stage a suit pending in any court, subordinate to such courts, to any other court subordinate to such courts, has obviously no relevancy to the present application. The present application is really governed by S.22 read with S.23. In respect of a suit which may be instituted in any one of two or more courts and which is instituted in one such court, the defendant is given a right under S.22 to file an application at the time of settlement of the issues or at any earlier stage, to have the suit transferred to another court. The court before which that application is filed has, alter hearing the objections of the other parties, to determine in which of several courts having jurisdiction; the suit shall proceed. S.23 indicates the court in which such an application is to be filed and for this purpose the applications are grouped into three different categories. Sub-s.(1) of S.23 deals with applications where the two concerned courts are subordinate to the same appellate court and states that applications for transfer of a suit under S.22 from one such court to the other, shall be made to the appellate court. Sub-s.(2) deals with applications where the concerned courts are subordinate to different appellate courts but to the same High Court, and states that the applications shall be made to the High Court. Sub-s.(3) deals with applications where the concerned courts are subordinate to different High Courts and states that the applications for transfer shall be made to the High Court within the local limits of whose jurisdiction the court in which the suit is brought is situate. The present application comes under this category because the Subordinate Judges Court at Trivandrum wherein O. S. No. 100/56 has been filed is subordinate to this High Court, while the Nagercoil District Court to which the transfer is sought is subordinate to the Madras High Court. The transfer application has to be filed in this High Court as per sub-s.(3) of S.23 of the Code of Civil Procedure and in this view of the matter the maintainability of the present application is open to no objection. S.22 under which such an application has to be dealt with, does not expressly state that the suit may be transferred from one court to another. The closing portion of that section merely states that the court to which the application contemplated by that section has been presented shall determine in which of several courts having jurisdiction the suit shall proceed. The argument based on such a phraseology used in the section is that the court can merely make a declaration that the suit shall proceed in a particular court, but cannot pass a formal order transferring the suit to that court. There is no force or substance in such an argument. It is really an application for transfer from one court to another that is being dealt with by the superior court under S.22. Any declaration made in that connection, determining the court in which the suit shall proceed, is in substance and in effect a direction that the suit shall be transferred to that court. S.22 as it stands make this position fairly clear. An attempt to limit the scope of that section by holding that the courts power is limited to the making of a declaration as to the court in which the suit shall proceed was repelled by the Nagpur High Court also in Firm Kanhaiyalal Daga v. Zumerlal (AIR 1940 Nagpur 145 at 148) where it was ruled that the real power conferred by S.22 is the power to transfer the suit to the particular court wherein the suit shall proceed as determined by the court disposing of the transfer application.

(3.) The next aspect to be considered is whether in the nature and circumstances of the present suit the prayer for its transfer from the Subordinate Judges Court at Trivandrum to the District Court at Nagercoil has to be allowed. Such a transfer cannot be ordered merely to suit the convenience of the defendants. No doubt the convenience of the parties is one of the factors to be taken into account. But it will be the convenience of both the parties unless it is found that in choosing a particular court the plaintiffs have been acting mala fide with the object of harassing the defendants. From the averments made in the present application itself it is clear that the circumstances do not justify any mala fides being imputed to the plaintiffs in having elected to institute the suit in the Subordinate Judges Court at Trivandrum. The suit could be properly instituted in that court just as it could be instituted in the Nagercoil District Court. Out of the 6 defendants who have filed the present application, 4 are admittedly residing in Trivandrum which is within the jurisdiction of the Subordinate Judges Court at Trivandrum. Even though the major portion of the properties involved in the suit is situated within the jurisdiction of the Nagercoil District Court, it is seen that the properties lying within the jurisdiction of the Subordinate Judges Court at Trivandrum are also very substantial. Other substantial portions of the properties are situated in the Quilon District. Thus the court which the plaintiffs have chosen is the court situated in the central district so far as the distribution of the suit properties is concerned and as such it cannot be said that the plaintiffs were actuated by any desire to cause any undue inconvenience to the defendants. The other suit O.S. No. 118/1956 pending in the District Court at Nagercoil was instituted by some other plaintiffs and it is conceded on behalf of the present applicants that the said suit was instituted subsequent to the institution of O. S. 100/1956 in the Subordinate Judges Court at Trivandrum. If it is the case of the applicants that the points arising for decision in the two suits are identical and that the plaintiffs in the two suits are litigating under the same title against the same defendants, it is for the applicants to take appropriate steps to have the second suit stayed pending trial and decision of the earlier instituted suit. If, on the other hand, the claim of the plaintiffs in O. S. 118/56 is opposed to the claim of the plaintiffs in O. S. 100/56, it will not be proper to compel the plaintiffs in O. S. 100/1956 to have their suit also tried in the Nagercoil District Court where the other suit O. S. 118/1956 is pending. It is the right of the plaintiffs to choose their own forum. In the nature of the suit O. S. 100/1956 it cannot be said that the defendants who are residing in Trivandrum will be put to any great inconvenience in adducing the necessary evidence in support of their defence. Most of the other suits referred to in the present application are suits pending in different Munsiffs Courts within the jurisdiction of the Nagercoil District Court. They are not also representative suits instituted with sanction obtained under S.92 of the Code. Hence the pendency of those suits in different courts cannot be accepted as a ground in support of the prayer for a transfer of O.S. 100/1956 to the Nagercoil District Court. In view of all these circumstances we do not think that there is sufficient justification for ordering such a transfer