DISTRICT COLLECTORKOZHIKODE Vs. KERALA VARMA KOVIL THAMPURAN

JUDGEMENT

(1.) C. M. P. 2393 of 1959 is a petition by the Government Pleader for the transfer of three suits, O.S. 17 of 1959 pending in the Ernakulam Munsiffs court, O.S. 67 of 1959 pending in the Haripad Munsiffs Court, and O. S.101 of 1959 pending in the Kottayam Munsiffs Court, to the Trivandrum Munsiffs Court where a fourth suit O.S. 105 of 1957 is pending. These four suits were instituted by four different plaintiffs, to enforce the claim made by each of them, for reward under S.13 of the Pension Act, 23 of 1871, alleging that each has proved to the satisfaction of the appropriate Government, that two specified parties had been fraudulently and unduly receiving pension to which they were not entitled. The State of Kerala is a common defendant in all the suits and in the suits in the Ernakulam, Haripad and Kottayam Munsiffs Courts, the Union of India and the District Collector, Kozhikode are also parties. The recipients of the pension are defendants 2 and 3 in the suit in the Trivandrum Munsiffs Court which is the earliest suit. The plaintiff in each suit alleged, that he had filed a petition to the appropriate Government, giving details of the fraudulent receipt of the pension and praying for appropriate action. The petition by the plaintiff in the Trivandrum suit was dated the 13th October 1955, and the petitions in the suits in the Ernakulam, Haripad and Kottayam courts were of the dates 17th March 1958, 16th June 1958 and 12th January, 1958 respectively. The common ground in all the suits was, that the appropriate Government having omitted to dispute or deny the facts alleged in the petitions, the burden of proving fraudulent receipt of pension had been discharged, and therefore each is entitled to the reward. In the suit in the Trivandrum court, the replication had been filed, but the other suits have not reached that stage.

(2.) This petition was opposed on behalf of the several plaintiffs. Of the grounds alleged by the learned Government Pleader in support of the transfer, I may state at once, that I am impressed with only one of them, that the transfer is necessary in the interest of justice in order to avoid conflict of decisions on common questions of fact or law. Admittedly, one common question which arises in all the suits is, whether the recipients of the pension had been fraudulently receiving the same. It seems to me, that another question for decision may be, which of the plaintiffs has proved the fraudulent receipt of pensions to the satisfaction of the appropriate Government. The learned counsel, who appeared for the plaintiff in the Trivandrum suit, contended, that it may be open to all the plaintiffs to establish their claims individually, and that the claim made by one does not exclude the claims made by others, even though, as seen on a perusal of the plaints, the right to receive pension is challenged on the same ground. It is unnecessary to give a decision on this point while dealing with the petition for transfer; at the same time, it is not fair or proper to ignore the opposite point of view, that the question, who has established his claim under S.13, can arise in each of the suits; in other words, in adjudging the claim of each of the plaintiffs, the question, whether it was he who may be deemed to have established the foundation of the claim, will arise. A conflict of decision on the questions involved can be avoided, if the cases are to be decided by the same court and at the same time. It might even be desirable, if the four suits can be consolidated, and evidence recorded in one suit, opportunity being given to everyone of the contesting parties to cross examine the witnesses; perhaps after the transfer is ordered the parties may agree to such a course, or the inherent jurisdiction may be invoked for the purpose. At the present stage, I only proceed to decide the question of transfer.

(3.) I cannot accept the contention advanced by counsel for the plaintiff in the Ernakulam suit, based on the observations in Jamil Ur Rahaman v. Shansher Ali (AIR 1944 Lahore 440, that no transfer can be ordered on this ground, as a court will always decide correctly. The decision of that case must be limited to its particular facts. On the contrary, it was decided in Purna Chandra Mahanty v. Samanta AIR 1953 Orissa 46 that where there are two suits which raise certain common questions of facts and law, having a substantial bearing on the decision of each of the cases, it is obviously desirable, that they should be tried at the same place and by the same Judge. This course is necessary to avoid multiplicity in the trial of the same issues, and conflicting decisions. Two other cases which have taken the same view, are Rajulu v. Govindan Nair AIR 1938 Mad. 745 and Vaman Vasudeo v. Baghunath Ganesh, AIR 1949 Bombay 263. I therefore hold, that on this ground, the three suits may be transferred to the Trivandrum Court, to be disposed of along with O.S. 105 of 1957 pending in that court. It was pointed out, that similar suits may be filed hereafter and the same situation may arise. The present suits as seen already, are grounded on petitions of specified dates; if parties choose to make such petitions and file suits, I daresay, that in ordering transfers, the element of bona fides also will have its own importance. It is needless to state, that this question can be examined, should the occasion arise.