SACHENDRA NATH MITRA Vs. MUHAMMAD HABIBULLAH

JUDGEMENT

(1.) This is an application made under Section 23 of the Code of Civil Procedure, asking this Court to determine that the civil suit instituted by Sheikh Muhammad Habibullah against Suchendra Nath Mitra now pending in the Court of the Subordinate Judge of Agra should proceed in the Court of the Subordinate Judge in the District of Hoogli in the Presidency of Bengal. The application is supported by an affidavit filed by one Mohendra Lal Sarkar, one of the defendants in the civil suit mentioned. The affidavit is met by a counter-affidavit filed by Mohammad Yusuf Ali Khan, agent of Mohammed Habibullah who is plaintiff in the suit. The application is opposed. After hearing both parties it appears that the only ground for transfer which is worthy of consideration is that all witnesses in the case whom it would be necessary to examine on behalf of the defendants reside at or near Hoogli and their evidence would be procured at great expense and delay at Agra. In the affidavit filed by the plaintiff this allegation is directly disputed and the affidavit filed by the plaintiff says that the witnesses who are likely to be examined by the parties are with few exceptions either residents of Agra or of places outside the jurisdiction of the Court at Hoogli.

(2.) On the application coming up for hearing learned Counsel for Habibullah drew attention to paragraph 15 of the affidavit put in by the defendant-applicant for transfer. In that paragraph it is alleged that the Court at Agra had no jurisdiction to try the suit and-that the allegations made in the plaint, paragraph 2, are incorrect and have been expressly made to give jurisdiction to the Court at Agra and thereby harass the defendants who were about to file a suit in the Hoogli Court for damages.

(3.) On behalf of the applicant for transfer an attempt has been made to recede from the position taken up in the affidavit. If paragraph 15 be true, then this Court has no" jurisdiction to pass any order in the present case. But apart from that I am not satisfied that any good cause has been shown to transfer the case from the Court in which it has already been instituted. Applications for transfer, I have always held, are extraordinary procedure and some good cause should be shown why such extraordinary procedure should be exercised.