INAYAT ULLAH KHAN Vs. NISAR AHMAD KHAN

JUDGEMENT

(1.) This is an application which raises both a question of principle and a question of fact of some importance. The defendant who is the applicant, is the son of one Abdul Jalil Khan, deceased, and the plaintiff is the cousin of the deceased man who claims to be his heir. Abdul Jalil Khan and the other members of his family were old residents of Shahjahanpur, which appears also to have been the ancestral home of the defendant. For the purposes of this case, however, it may be assumed that the deceased migrated to a place called Pusad in Yeotmal, a District of the Berars, which is now a portion of the Central Provinces, and died there in October of last year after having made, so the defendant alleges, certain gifts by deed of fail property in favour of the defendant. The suit is brought by the plaintiff as heir of the deceased man to set aside these gifts, and it has been brought in the Court at Shahjahanpur, as a matter of choice, by the plaintiff who is of course in all cases dominus litis; probably because it is his ordinary home, the language of the Court is his language and because, as he says, some of the property is situated in that District. However, the defendant, on the ground that, having regard to the issues raised by the suit and the general convenience of the parties in view of the nature of the evidence which will have to be called on both sides in the suit, has applied to this Court to transfer the case from Shahjahanpur and altogether from these Provinces in order that it may be tried in the appropriate Court in the Yeotmal District of the Berars in the Central Provinces.

(2.) The question of principle raised by the application was not very seriously argued, but our attention was drawn to certain reported cases which make it desirable that we should express our views definitely upon the question. No case is reported on the subject in the authorized reports, Allahabad series, since the year 1882 (I.L.R. 5 Allahabad). There have been decisions which have found their way into modern reports and we prefer to follow the decision reported in Subba Bibi v. Maqbool Hussain 32 Ind. Cas. 613 : 14 A.L.J. 242, a decision by a member of this Court sitting alone, who followed the view taken by the older case of Tula Ram v. Harjiwan Das 5 A. 60 : A.W.N. (1882) 164 : 3 Ind. Dec. (N.S.) 55, and the invariable practice as it was then established in England (that old practice has now been codified in England in the form of a special rule), namely, to insist upon any litigant applying for transfer to make out a strong case of the balance of convenience. In Tula Ram V/s. Harjiwan Das 5 A. 60 : A.W.N. (1882) 164 : 3 Ind. Dec. (N.S.) 55, already referred to, the Court recognised that as the real test although it decided against the transfer. There is one further material case, namely, Madho Prasad V/s. Moti Chand 50 Ind; Cas. 368 : 17 A.L.J. 371 : 41 A. 381 (another single Judge decision) where a member of this Court declined to adopt that rule and held, without reference to any previous authority, that the mere convenience of the parties was not a good test. We come to the conclusion that that view is not a sound one. After all, the convenience of the parties in the conduct of litigation is certainly a relevant consideration, and it is, perhaps not too much to say that it is the basis of nearly all statutory jurisdiction on the civil side.

(3.) That being the state of the law, the plaintiff in this case, as in every other, has undoubtedly a prima facie right to decide the place of trial. The defendant may show, as he does here, exceptional circumstances. The question is, whether those circumstances are such as to make it right to override the wish of the plaintiff and to direct the trial to take place at the most convenient Tribunal. The defendant's main contention in this application is that he has to defend the deeds made in his favour against an attack made upon them by the plaintiff, and that both the attack and the defence must in the end turn upon the local evidence in the place where the deeds were executed, the suggestion being that they were executed by the deceased man in a condition of such ill health as to make him either of not sufficiently sound disposing mind, or subject to the improper influences of some interested party so as to deprive him of the free exercise of his own volition.