MUSAMMAT SUBBA Vs. HAJI MAQBOOL HUSSAIN

JUDGEMENT

(1.) THIS is a very simple matter. It is an application to transfer a suit from the Court at Aligarh to the Court at Bareilly, where another suit has already been brought By the applicant against the respondent to this application. Substantially it is not denied that the issues to be determined in both the suits are the same. I will assume that the bulk of the property which is in dispute is within the jurisdiction of the Court at Aligarh where the respondent to this application has brought his suit. But in a pedigree case where oral evidence is chiefly necessary, I do not think this matters much. I fully recognise that the general rule is that the plaintiff has the right to choose his own Court for his own suit, and that in cases of disputes about property the Court where the property is situated is prima facie the better Court. But in this case no injustice can be done to the plaintiff himself by the transfer of his suit to Bareilly. In any case he will have to appear as defendant to the suit which has been brought in Bareilly. The plaintiff is, and will continue to be, dominus litis, and I have done nothing to deprive him of that right. The ground upon which the present application is based, is that the balance of convenience and of justice is in favour of the applicant. There is a strong affidavit on behalf of the applicant showing that almost all the witnesses are common to both suits and are in Bareilly, where the parties to the suit are also residents. Taking in favour of the respondent that that affidavit applies to the applicant s own witnesses it is uncontradicted on behalf of the plaintiff. The plaintiff shows no special reason against depriving him of Aligarh Court otherwise than insisting upon his ordinary right. There is no affidavit before me on his side showing what the convenience to him is in respect of Aligarh Court. It is obviously more expensive and, therefore, more inconvenient to take witnesses 200 miles than to have the suit tried where the bulk of the witnesses live. There is, in my opinion, a danger of injustice where the necessity of taking them so far arises. It may happen that from inconvenience or other causes the witnesses who could attend Bareilly Court could not attend Aligarh Court. The invariable practice in England in the absence of anything to the contrary is to follow the rule of equity, justice, and good conscience, namely, to insist upon the applicant making out a strong case of the "balance of convenience", I find that that rule has already been recognised as the real test by a decision of this Court in Tula Ram v. Harjiwan Das 5 A. 60; A.W.N. (1882) 164. I think the applicant in this case satisfies it. I, therefore, make the order as prayed with costs which I estimate at Rs. 32.

(2.) THE question has been raised before me as to which of two parties is entitled to be heard first upon an application. THE application is for a transfer of a suit from one Court to another. By an order of Mr. Justice Tudball made on the 30th of October 1915, notice was ordered to issue to the respondents to the application to show cause why an order should not be made against them, for transfer as prayed. In that notice they were informed that the application would be taken ex parte unless they showed cause. In my view no order has yet been made on the application other than a notice to the respondents entitling them to appear and to be heard. THE burden is upon the applicant to show sufficient ground why the Court should grant the application. Under these circumstances the applicant has the right to begin.