MOTI CHAND Vs. MADHO PRASAD

JUDGEMENT

(1.) THIS is an application under Section 24 of the Code of Civil Procedure, for transfer of a suit which has been filed in the court of the Subordinate Judge of Benares. The prayer is that the suit may be transferred to the court of the Subordinate Judge of Allahabad. The suit apparently was filed in the court of the Subordinate Judge of Benares somewhere in the year 1917 and seems to have rested there until January of this year. The application is supported by an affidavit and the main ground really taken is that the trial of the suit at Allahabad will be less expensive, more convenient to the parties and also to the petitioners, and will be concluded in less time than at Benares. The petitioners who have been arrayed as defendants in the court of the Subordinate Judge of Benares are, the so called affidavit sets out, residents of Allahabad and carry on banking business at Allahabad, Some of the respondents also are residents of Allahabad and own considerable immovable property situate partly in the station of Allahabad and partly in the district of Allahabad. These respondents have not joined in this petition and from this it may be presumed that they do not concur in the allegation that the trial of the suit at Allahabad would be less expensive and more convenient to them and will be concluded in less time than at Benares. All the properties mortgaged, with the exception of a small building worth, it is said, some Rs. 100, are situate in the district and town of Allahabad. It is upon this point that the learned vakil for the petitioners has laid very great stress. He has also laid stress upon the fact that the main evidence in proof of the various questions that will arise in the suit will be of persons, residents in the town and district of Allahabad. He has cited rulings by which he maintains that the convenience of the parties is, or should be, the test as to where the suit should be tried. Section 24 of the Code of Civil Procedure does not mention the words "convenience of parties" anywhere. It is a well-known maxim of law that the plaintiff is the person to choose where his suit shall be brought provided that he chooses a forum which the law allows him to choose. The transfer of a suit is an extraordinary matter, as I have already pointed out in the case of Sachendra Nath Mitra v. Mohammad Habib-ullah 24 Indian Cases, 707. I, therefore, hold that such an extraordinary procedure as the removal of a case against the plaintiffs will from the court where he had lodged it, should be supported by some good cause, The plaintiff is opposing in court the transfer, and the question which arises for decision is whether I am to hold that the fact that a very large proportion of the property held by the defendants is situate in Allahabad and the residence of most of their witnesses is in Allahabad, should be considered good cause. Hitherto the transfer of cases have, so far as I can find out, depended, much more upon the personnel of the Judge than the personnel of the parties. For instance a Judge finds himself face to face with a case or cases instituted by his landlord and very properly considers that it would be better that some person other than himself should try that case, or cases; when the reasons for transfer depend upon the personnel of the Judge it can easily be conceived whether it is better for all parties, if it can be done without inconvenience to any of them, that the case should be tried by some Judge other than the Judge in whose court the plaintiff has instituted the suit. The only good cause that I can find at present which depends upon the parties is where the parties are willing and combine for some, reason, to ask that the case may be transferred to some other court than that in which the plaintiff has instituted it. There are cases which have been cited to me which show that cases have been transferred for the convenience of the parties, but it should not be the test by which a case is transferred. In the present case it so happens that the file of the Subordinate Judge of Allahabad is so congested that a request has been made by the District Judge of Allahabad that I should call in the Subordinate Judge of Mirzapur and add him for the time being to the staff at Allahabad in order to facilitate the hearing of cases in the Subordinate Judge s Court. On the other hand, the Subordinate Judge of Benares is not over- pressed with work at the present time. He is an officer of experience and standing, and has shown himself able to try difficult and complicated oases with ability. As this application for some reason or another is opposed, and strongly opposed, by the plaintiff, I do not think it is a case in which, so far as has been at present shown to me, I should interfere and transfer. The application is dismissed with costs. The costs to the plaintiffs in this Court will be taxed at Rs. 100, (Rupees one hundred). The stay order is discharged.