NIRMAL CHANDRA DUTTA Vs. PRADIP KUMAR DUTTA

JUDGEMENT

(1.) This is an application for transfer of a suit pending in the City Civil Court to this Court under Cl.13 of the Letters Patent read with S.24 of the Code of Civil Procedure. The plaintiff filed a suit in the City Civil Court being Title Suit No.1387 of 1981 against Pradip Kumar Dutta for a declaration that the plaintiff is in exclusive possession of one room on the ground floor by the side of courtyard of premises No. 14, Govinda Sen Lane, Calcutta. In the City Civil Court the plaintiff's case is that the plaintiff's father is a co-sharer in respect of the said premises No. 14, Govinda Sen Lane. The plaintiff purchased from two of the co-sharers their undivided shares in the said premises by two sets of conveyances dated 1st Aug. 1980 and 23rd Feb. 1980. In terms of the said two conveyances the vendors made over possession to the plaintiff of the two rooms on the first floor and one room on the ground floor of the said premises. By another conveyance dated 24th Feb 1981, the plaintiff purchased from Samir Chand Dutta his undivided half share in the said premises. Samir Chand Dutta is a defendant in the City Civil Court suit. The plaintiff's further case is that the plaintiff and his father have been in occupation of seven rooms in the said premises of which three rooms were given possession of to the plaintiff by earlier vendors and such occupation of the plaintiff and his father thus compnsed of two rooms on the ground floor by the side of the courtyard and five rooms on the first floor and the second floor. The plaintiff complained in the City Civil Court that for some time the defendant Dilip Kumar Dutta and his brother attempted to take forcible possession of two rooms on the first floor and one room on the ground floor. The plaintiff's father thereupon filed a petition under S.144(2) of the Code ol Criminal Procedure before the Executive Magistrate, Calcutta against Dilip Kumar Dutta and his brother for maintenance of status quo. Cause of action is pleaded to have arisen on the 25th March, 1981 when the defendant made an attempt to take forcible possession of one room on the ground floor in possession of the plaintiff. In the City Civil Court the plaintiff made an interlocutory application for injunction restraining the defendants from disturbing the possession of the plaintiff. The defendant in the City Civil Court appeared and filed his written statement making a counter-claim that the room on the ground floor of which the plaintiff is claiming declaration of possession has been forcibly taken possession of by the plaintiff from the defendant and the plaintiff is in wrongful possession and occupation thereof as a trespasser and he has claimed possession of the said room and declaration of his title in the written statement. The interlocutory application made in the City Civil Court was opposed by the defendant by filing a counter-affidavit and ultimately the said application was disposed of by the learned Judge, 10th Bench of the City Civil Court by his order dated 16th March, 1983. The learned Judge prima facie found that the defendant was in possession of the rooms in dispute from 25th Feb. 1981 to 25th March, 1981 and he was dispossessed by the plaintiff therefrom on the 26,27th March, 1984. The learned Judge on that basis vacated the interim order of injunction inasmuch as the plaintiff being a trespasser had no lawful possession against the defendant who had been dispossessed. It appears that the City Civil Court suit has been ready for hearing for sometime past and peremptory hearing had been fixed. After the injunction was dissolved by the learned Judge, City Civil Court, the plaintiff on the 13th July, 1984 instituted the Suit No. 499 of 1984 (Nirmal Chandra Dutta v. Pradip Dutta) in this Court for partition of the premises No. 14, Govinda Sen Lane, Calcutta. Thereafter the plaintiff on the 16th Aug. 1984 made an application before the City Civil Court for withdrawal of the said suit pending in the City Civil Court. Objection was taken thereto by the defendant on the 19th Sept., 1984. The plaintiff filed an application before the City Civil Court for withdrawal of the application for withdrawal of the suit and on the 23rd Nov. 1984, an order was made whereby the plaintiff did not press the application for withdrawal of the suit in the City Civil Court and the Court directed that the suit will proceed and date for peremptory hearing was fixed on 12th Jan. 1985. Now the present application has been made by the plaintiff for transfer of the City Civil Court suit to this Court and this application has been made on or about 9th Jan. 1985. Mr. Parma Pratim Basu, the learned counsel for the plaintiff petitioner submitted that since a suit for partition has been filed in this Court and all disputes between the parties would be decided in the partition suit, the suit in the City Civil Court should be transferred to this Court so that both the suits can be heard together and there would be no cause for conflict of decisions and this would also save multiplicity of proceedings. It was urged by Mr. Basu that some of the documents would be common to both the suits and which would create difficulties for the parties to conduct two different suits in two different courts with the same set of documents and would create difficulties in production of original documents before both these courts. In the City Civil Court whatever decision might be in the suit the party aggrieved would necessarily come in appeal before this Court but if both the suits are heard by this Court one after the other at the same time that question would not arise. It was also urged that both the suits and in particular the City Civil Court suit could be more effectively disposed of by this Court than by the City Court and at a lesser expense. It was lastly urged that the balance of convenience was in favour of both the suits being tried by this Court. Inasmuch as both the plaintiff and the defendant would have to fight out the two suits in two different courts and if both the suits are tried by this Court it would be convenient for both the parties to fight out the suits in this Court. A large number of decisions were cited by Mr. Basu to establish his contentions. It is not necessary to deal with the said cases in detail as there could be no dispute on the propositions laid down in all those decisions. The following decisions were cited by Mr. Basu.

(2.) Mr.R.K.Lala, learned Counsel for respondent on the other hand contended that this application is wholly mala fide and has been made with a motive to maintain the illegal possession of the ground floor room, which the plaintiff has forcibly taken possession of from his client Pradip Kumar Dutta. In the interlocutory application before the City Civil Court the learned Judge found that the plaintiff was a trespasser and has wrongfully dispossessed his client and, therefore, the order of injunction which was originally passed, was vacated by the learned Judge. The suit was fixed for peremptory hearing but could not be heard. The plaintiff made an application for withdrawal of the City Civil Court suit, thereafter made another application for withdrawal of the application for withdrawal of the suit. In the meantime after the injunction was dissolved by the City Civil Court the plaintiff filed the partition suit in this Court and thereafter made this application for transfer of the City Civil Court suit to this Court. The City Civil Court suit is no more a suit of the plaintiff alone because of the counter-claim made by his client in his written statement. It is also a suit of his client. The forum convenience which the plaintiff originally had and was exercised by the plaintiff in filing the suit in the City Civil Court cannot now be altered and the plaintiff cannot exercise his right of forum of convenience over again and have the suit transferred from one court to another according to his choice. Mr. Lala, however, submitted that the decisions cited on behalf of the plaintiff have laid down the law on the subject and he has no dispute with the propositions laid down therein. But in most of the cases the suits have been filed in lower courts and so to say in the distant districts and considering the particular facts and circumstances of those cases the court made orders for transfer or did not make order for transfer. Here, Mr.Lala, submitted, the plaintiff filed the suit in the City Civil Court for declaration of possession of a particular room in the premises in suit. Whether the plaintiff will succeed in the suit or will not succeed would not in any way affect the partition suit which has been filed in this Court inasmuch as in the partition suit the property would be directed to be partitioned by metes and bounds and upon such partition whatever portion of the premises would be allotted to the plaintiff or to the defendant or the other defendants in the partition suit, they would take the same and if some of the rooms allotted to one party be in the possession of another party those would be exchanged. By making this application the plaintiff wants to perpetuate his wrongful possession of the ground floor room, which otherwise the defendant might have succeeded in establishing in the City Civil Court through his counter-claim and got a decree in his favour. Mr. Lala. however, cited a decision of this Court in Rupendra Deb v Ashrumati Debi reported in AIR 1951 Cal 286. This was also an application for transfer of a suit filed in the Subordinate Judge's Court at Jalpaiguri to this Court under Cl.(13) of the Letters Patent. The learned Judge observed that the High Court has a very wide discretion under Cl.13 of the Letters Patent for removal of suits from courts subordinate to it to itself. The discretion of the Court however, should be very carefully and judiciously exercised. The case will not be removed only because it involves difficult questions of law and fact. The plaintiff having choice of forum have chosen one forum and the case will not be subsequently removed on the application of the plaintiff on the ground of convenience when the defendant has taken part in the proceedings. Interest of justice means promotion or advancement of the cause of justice. Justice should not only be done but should manifestly and undoubtedly seem to be done. Grounds advanced by the learned Counsel in support of the application were discussed by the learned Judge, which were : (1) convenience of parties, (ii) convenience of witnesses, (iii) convenience of Counsel, (iv) convenient as to production of documents, (v) length of hearing and (vi) costs. The suit filed in the City Court by the plaintiff is a suit for declaration that the plaintiff is in exclusive possession of one room on the ground floor by the side of the courtyard (more fully described in the schedule to the plaint filed in the City Civil Court) and for permanent injunction restraining the defendant, his men and agents from interfering with the plaintiff's exclusive possession in respect of the said one room. A similar claim to the said room has also been made by the defendant in this written statement by way of counter-claim. Therefore, what the City Civil Court has to decide is that who is in lawful possession of the said room or who had been in lawful possession of the said room and has since been ousted therefrom. The plaintiff has filed the suit in this Court for partition of the very same premises in respect of one ground floor room whereof he has filed the suit in the City Civil Court. In the partition suit the court will determine the shares of the co-sharers and direct partition of the property by metes and bounds and if it is found that the property cannot be suitably or conveniently partitioned amongst the various co-sharers the Court may also direct the sale of the property. In the partition suit the Court will not decide who is in possession of which room or if any of the parties are in possession of any of the rooms, whether the possession of such party is lawful or otherwise. The partition suit in this court has nothing to do with the possession of a party of a particular room or particular rooms in the property in suit. Therefore, there is no question or any possibility of conflict of decisions in the two suits which might prejudice any of the parties. So far as balance of convenience is concerned there would be no question of inconvenience in fighting out the two suits one in the City Civil Court and the other in this Court. Some of the documents in both these suits might be same but that would be really no consideration or for such inconvenience if any, for that purpose only the City Civil Court suit should be transferred to this Court. The witnesses who might have to give evidence in the City Civil Court may also convemently give evidence in this Court. There would be no difficulty. So far as convenience of counsel is concerned the same set of counsel may appear in both the suits. So far as length of hearing is concerned, the length of hearing would be more or less the same whether the suit is tried in this Court or in the City Civil Court. So far as costs are concerned it depends on the parties, what they want to spend on the lawyers. Since there are two suits, to the extent there is multiplicity but no more which is also of the plaintiff's own doing. Because this Court would be an Appellate Court from any decree or order of the City Civil Court, that I don't think would be a ground for transfer of the suit to this Court from the City Civil Court. If the parties are diligent a suit can be disposed of as expeditiously in the City Civil Court as it may in this Court. The principles for transfer of a suit from a lower court to this Court, be it under S.24 of the Code of Civil Procedure or under Cl.13 of the Letters Patent, as laid down by the several decisions cited by Mr. Bose are unexceptionable. But the question is do those principles apply in this case. As I have already discussed, in my view, those principles are not applicable in this case although this Court might have wide powers and wide discretion in the matter of transfer of a suit under Cl.13 of the Letters Patent but such powers have to be exercised for the purposes of justice and in a judicial manner, not whimsically or capriciously.

(3.) For all the above reasons the petitioner cannot succeed in this application. The application is accordingly dismissed with costs. The interim order, passed by me, stands vacated. Let the order be drawn up expeditiously.