HARI CHARAN MITRA Vs. SANTOSH KUMAR MITRA

JUDGEMENT

(1.) THIS is on application filed under Sections 151 and 24 of the Code of Civil Procedure praying for transfer of Title Suit No. 79 of 1972 now pending on the file of the Subordinate Judge, Cuttack to the file of the Subordinate Judge, Sambalpur for trial there, on the grounds inter alia that the suit is a partition suit; that the bulk of the properties are situated within the jurisdiction of the Sambalpur Court; that the bulk of the evidence in the case would be from Sambalpur; that it will be convenient for both parties to adduce evidence at Sambalpur and that in fact, there is no allegation in the plaint that there was any justification for the suit to have been filed at Cuttack, which has only been done with the sale purpose of bringing down the Defendant - -who is a poor retired Lower Primary School teacher - -on his knees.

(2.) THE petition is resisted on the ground that the plaint was filed on 11 -5 -1972 and when the Defendant appeared in response to the notice on 11 -7 -1972, he did not raise any objection to the hearing of the suit at Cuttack; that even when the written statement was filed on 17 -1 -1973 and thereafter issues were settled on 17 -2 -1973, no such objection was taken; that there was on order for ex parte hearing which was later withdrawn and now as the suit is ready for hearing, at this late stage there is no justification for transfer of the suit from Cuttack to Sambalpur.

(3.) TO appreciate the rival contentions of the parties, some of the facts need be stated. As averred in the plaint, the father of the parties Bhagawati Charan Mitra was a needy man. He got a service as Head Clerk in the office of the Political Agent, Chhatisgarh, Sambalpur and during the tenure of his service there, he invoked the sympathy of several ruling Chiefs who rewarded him with gold and cash. Thus he could become rich and with that money started money -lending business till his death in 1928 - 29. By that time, as alleged in the plaint, he had left a cash worth Rs. 20,000/ - and about 200 tolas of gold and silver and other articles worth Rs. 5000/ - to Rs. 6000/ -. After his death, Dhirendra the eldest son became the Karta of the family and continued, the money -lending business started by his father. He further took up a lucrative Kendu Leaf business and maintained the joint family. The Defendant was educated by Dhirendra and so also the Plaintiff. The Defendant became on L.P. School teacher under Sambalpur Municipality and was getting a paltry salary of Rs. 20/ - per month. The Plaintiff after obtaining his degree served as a teacher in the Sambalpur Zilla School in the year 1948. Subsequently he passed M. Sc. examination and got service in the Fisheries Department. According to the Plaintiff, he was handing over his salary to the eldest brother Dhirendra and thus the properties acquired in the name of Dhirendra were all joint family properties. Later, die Plaintiff joined as S.R.A. Director of Fisheries and went abroad to America for higher studies. From America he was sending money to Dhirendra and the total amount so sent would be more than twenty thousand rupees. Out of the immoveable properties sought to be partitioned, Schedule B properties worth Rs. 5500/ - are situated within the Cuttack Municipality in the name of the deceased Dhirendra. Out of the Schedule C properties, lot No. 2 alone stands in the name of the Plaintiff and that is in Sambalpur and lot No. 3 of Schedule 'C ' similarly stands recorded in the name of the Defendant alone and the rest of the properties are all in the name of Dhirendra. The immoveable properties have been valued at Rs. 25,300/ - out of which the B schedule properties situated within the Cuttack Municipality are valued at Rs. 5,500/ - only. The moveable properties are valued at Rs. 32,700/ - and all these are at Sambalpur. It is further alleged in para 29 of the plaint that: