FIRM KANHAIYALAL DAGA Vs. ZUMERLAL

JUDGEMENT

(1.) THE following question is referred, in Miscellaneous Civil Cases Nos. 183 of 1937 and 15 of 1938, for the determination of the Bench: Has the High Court, as held in Abu Bakar Abdul, Rahiman & Co. v. Rambux (1916) 3 AIR Nag 31 no jurisdiction to transfer a suit pending: in a Court subordinate to it to any other High Court or a Court subordinate to such High Court?

(2.) BEFORE answering that question we wish to observe that in Abu Bakar Abdul, Rahiman & Co. v. Rambux (1916) 3 AIR Nag 31 the Court was not concerned with a transfer of a suit pending in a Court subordinate to one High Court to a Court subordinate to another High Court. There the transfer sought was from; a Court subordinate to the Judicial Commissioner's Court (that is to say, a High Court) to the Bombay High Court. There were however observations in the course of that case to the effect that, even were the transfer to a Court subordinate to another High Court, the transfer could not be ordered. The answer to the question depends very largely on the construction and understanding of four Sections of the Civil Procedure Code, that is to say Sections 22, 23, 24 and 25. As we understand the matter, the purposes of those Sections are as follows: Sections 22 and 23 are concerned with a case where a plaintiff has the choice of two or more Courts in which he may properly institute a suit. They deal with the power of a defendant to apply to a Court to have the case transferred out of the Court in which it is filed to another Court, Those two Sections contemplate three possibilities: (a) where the alternative Courts are subordinate to the same Appellate Court, (b) where they are subordinate to different. Appellate Courts but to the same High Court, and (c) where they are subordinate-to different High Courts. Thus the case where the alternative Courts (or any of them) are themselves High Courts is not expressly dealt with. Sections 24 and 25 are concerned with an entirely different kind of case; We are no longer concerned with the right in the defendant to apply to have transferred to one of alternative possible Courts a suit which his opponent, the plaintiff, has filed in one of those possible alternative Courts. Those Sections deal with other kinds of cases of transfer and are concerned with the power that is possessed by plaintiff or defendant. Those kinds of transfers are broken up into two different categories. The one is dealt with by Section 24; the other by Section 25. The first category includes those cases where a transfer is from a subordinate Court and the power of transfer in such a case is given to the High Court to which the Court is subordinate and it is made clear that such High Court can only transfer to a Court subordinate to it. Section 25 is dealing with cases where the suit or matter is pending in a High Court presided over by a single Judge. When any party for a reason indicated in Section 25 desires a transfer the transfer is obtained, if at all, by an order of the Governor-General in Council or now by order of the Provincial Government of the High Court in which the matter is pending.

(3.) IN our opinion in cases to which Sections 22 and 23 apply the power to transfer is conferred by Section 22 and the forum to which the necessary application has to be made is provided by Section 23. It has been argued before us on the strength of Tula Ram v. Harjiwan Das (1882) 5 All 60 that the Court has only such powers as are conferred upon it by the Civil Procedure Code, in this matter at any rate, that the power to transfer a case is one that is either not possessed at all or must be given by the Code, that the Code does give the power to the Court in Section 24 and to the Governor. General in Council or the Provincial Government in Section 25 but gives no power at all under Sections 22 and 23 which are therefore perfectly useless Sections, perfectly useless except that the Court to which the application for a transfer is made can solemnly determine which Court ought to try the case but can take no steps to get the case into the Court which it has determined is the proper Court to try the case. As to Tula Ram v. Harjiwan Das (1882) 5 All 60 which we observe from Mr. Desai's Point-noted Index of Cases is said to be followed in Inayat-ulla-Khan, v. Nisar Ahmad Khan (1922) 9 AIR All 65 that was a case which arose under the old Code. It decided that under the old Code there was no power to transfer conferred at all. In Inayat-ulla-Khan, Nisar Ahmad Khan (1922) 9 AIR All 65 the case was, in fact, transferred and although the head-note shows that 5 All 60 Tula Ram v. Harjiwan Das (1882) 5 All 60 was followed it is reasonably plain from the result and from pp. 279 and 280 that it was not. Since Tula Ram v. Harjiwan Das (1882) 5 All 60 substantial changes have been made in the Code. Under the old Code in cases similar to those now covered by Sections 22 and 23 the policy pursued by the Legislature Was to compel the plaintiff to choose the better forum by giving power to the Court to stay proceedings in what the Court thought was the inferior forum. Thus the Court was given by Section 20 power to stay. The plaintiff having a choice of Courts A and B and having his proceedings stayed in Court A would presumably then choose Court B, or if he did not he would lose his right of action. That appears to have been the scheme. That was dropped in the present Code and the reason why it was dropped, according to Sir Dinshah Mulla's notes to Section 22 (Civil P.C., Edn. 10), is because the powers of transfer in Sections 22 to 24 are ample. Difficulties have been felt by Courts where the Court from which transfer is sought or the Court to which transfer is desired is a High Court. The reason for that difficulty will be shown later.