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Sadayandi Nadar And Others v. Venugopala Chetty And Others
Factual and Procedural Background
This opinion concerns a petition to transfer O.S. No. 45 of 1956 from the Sub-Court at Ottapalam to a Sub-Court at Tuticorin (later directed to Ramanathapuram Sub-Court at Madura). The petitioners are the defendants numbered 11 to 15 in the partition suit.
The original suit sought partition of the plaintiff's one-half share against defendants 1 to 10, who comprised the other branch of a joint Hindu family. The plaint alleged dissatisfaction with management of certain family properties (B and C schedules) entrusted to defendants 1 and 2. Most items in the B schedule (except item 11, the West Coast Match Company) lay within the jurisdictions of Tuticorin and Ramnad Sub-Courts, and the parties were residents at Sattur; notwithstanding this, the plaint was filed in Ottapalam. The plaint did not state why Ottapalam was chosen.
Defendants 1, 2 and 3–6 filed written statements admitting the joint-family relationship and expressing uncertainty about the schedule properties; the 2nd defendant claimed he managed certain properties as executor under his father's will and disclosed that he had alienated some B schedule items to third parties (defendants 11 to 17). Those alienees (including the present petitioners 11–15) were subsequently impleaded. The petitioners 11–15 then filed the transfer petition now under consideration.
Affidavits exchanged in the petition established that petitioners 1–4 (defendants 11–14) and their alienated properties are in Tinnevelly District; petitioner 5 (defendant 15) and the mortgaged property concerned are in Ramanathapuram District. Defendant 15 had obtained a preliminary decree in O.S. 57 of 1956 on the file of the Ramanathapuram Sub-Court at Madura and was taking steps for final decree. The parties and likely witnesses speak Tamil; Ottapalam's court uses Malayalam. The petitioners alleged that Ottapalam was chosen in collusion between the plaintiff and defendants 1–10 to delay or defeat the alienees, and they sought transfer in the interests of fair trial and convenience, leaving the choice between Tuticorin or Ramanathapuram to the plaintiff.
Legal Issues Presented
- Whether a petition under Section 23(3) of the Civil Procedure Code is maintainable to transfer a suit filed in a court subordinate to one High Court to a court subordinate to another High Court (i.e., whether the High Court has jurisdiction to order such a transfer).
- If maintainable, whether it is expedient in this case to exercise the power of transfer under Section 23(3), having regard to the plaintiff's right to choose forum and the balance of convenience between the parties.
Arguments of the Parties
Petitioners' Arguments (Defendants 11–15)
- The petitioners (alienees) are residents of the districts where the alienated properties lie (Tinnevelly and Ramanathapuram), and relevant proceedings (including a preliminary decree for defendant 15) are already pending in Ramanathapuram. All parties and witnesses speak Tamil, whereas Ottapalam's court uses Malayalam; the distance to Ottapalam exceeds 200 miles.
- These facts, together with the manner in which the plaint was framed and the conduct of the suit so far, indicate that Ottapalam was chosen collusively by the plaintiff and defendants 1–10 to delay or defeat the petitioners and other alienees.
- In the interests of fair trial, convenience, and to save time, labour and expense, the suit should be transferred. The petitioners left the specific choice between Tuticorin and Ramanathapuram to the plaintiff.
Plaintiff's Arguments
- The plaintiff emphasized that choice of forum is the plaintiff's prerogative (arbiter litis) and that having exercised it there is no basis for defendants to seek transfer; no adequate ground for transfer had been alleged.
- The plaintiff claimed he would suffer unnecessary loss and inconvenience because he had already engaged competent legal advisors in Ottapalam.
- The plaintiff argued that item 11 (the West Coast Match Co. at Ottapalam) justified the choice of forum, asserting that that item was more valuable than all other items combined.
- The plaintiff relied on an affidavit by a co-defendant suggesting that a Receiver application might be needed to safeguard item 11 and its profits, arguing that this made disturbance of the suit undesirable.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdul Rahiman & Co. v. Rambux, A.I.R. 1916 Nag. 31 | Stanyon, A.J.C's view that Section 24 CPC was exhaustive of judicial power to transfer suits and that Section 22 did not grant express power to the High Court to make transfers; he viewed s.23(3) as having no procedural value. | The Court noted this historical view but recorded that it was subsequently overruled; the opinion was discussed as background to the issue of High Court power to transfer between courts subordinate to different High Courts. |
| Firm Kanhaiyalal Daga v. Zumerlal, A.I.R. 1940 Nag. 145 | Held that the High Court has jurisdiction to transfer a suit pending in a court subordinate to it to a court subordinate to another High Court. | The Court relied on this decision to affirm the maintainability and competence of a petition under Section 23(3) to seek transfer between courts subordinate to different High Courts. |
| Ram Kumar v. Tula Ram, A.I.R. 1920 Pat. 138 | Rejected the restrictive view in Abdul Rahiman and supported the power of the High Court to order transfer under S.22; held that such an order would be final and not subject to refusal by another High Court. | Used to bolster the proposition that the High Court has power to direct transfer to a court subordinate to a different High Court. |
| Pragji Soorji & Co. v. Kalu Mal - Shori Mal & Co., A.I.R. 1924 Lah. 306 | Established that the plaintiff's right to choose forum should not be disturbed except upon very strong reasons, notably where the suit is brought in bad faith to work an injustice on the defendant that would not occur if tried in another competent court. | The Court applied this principle by recognizing the high threshold to disturb plaintiff's forum choice but proceeded to weigh whether such strong reasons existed in the present case. |
| Jawahir Kumari Debi v. Suresh Chandra Bose, (1920) 1 Pat. L.T. 389 | Identified among authorities supporting protection of plaintiff's choice of forum; cited in the compilation of cases limiting transfer except for bad faith or injustice. | Referred to within the discussion (via Pragji Soorji) as part of the body of authority explaining the protection of plaintiff's forum choice. |
| Hindustan Assurance and Mutual Benefit Society Ltd. v. Mulraj, (1915) 27 M.L.J. 645 | Also cited among authorities clarifying that plaintiff's right to institute suit should not be interfered with absent bad faith. | Referred to in consolidating the legal rule that strong reasons are necessary to justify transfer of a suit filed in a competent court chosen by the plaintiff. |
| Logan v. Bank of Scotland, (1906) 1 K.B. 141 | Illustrated the principle that a forum chosen in a manner producing veracious and oppressive proceedings, or an abuse of process that imposes undue hardship, may justify staying or transferring proceedings; emphasized balance of convenience and avoidance of oppressive litigation. | The Court drew an analogy to this case to support the view that the suit in Ottapalam could be oppressive or an abuse of process as against the alienees, and used the case to justify transfer in view of the balance of convenience. |
Court's Reasoning and Analysis
The Court's analysis proceeded in two main stages: (1) whether the petition under Section 23(3) CPC was maintainable, and (2) if maintainable, whether it was expedient to exercise the power of transfer in the circumstances of this case.
On maintainability, the Court examined Sections 22 and 23 of the Civil Procedure Code, which address cases where a plaintiff has a choice of two or more competent courts and where a defendant may apply for transfer. The Court acknowledged an earlier contrary view expressed in Abdul Rahiman & Co. v. Rambux (that S.24 CPC was exhaustive and S.22 did not confer transfer power), but observed that later authorities, notably Firm Kanhaiyalal Daga v. Zumerlal, held that a High Court does have jurisdiction to transfer suits from a court subordinate to it to a court subordinate to another High Court. The Court therefore concluded the petition under s.23(3) was maintainable; competency to entertain the petition was not contested by respondents' counsel.
On expedition (whether the power should be exercised), the Court recognized the strong principle protecting a plaintiff's choice of forum — derived from authorities such as Pragji Soorji and others — that a plaintiff's choice should not be disturbed unless the defendant shows very strong reasons (e.g., bad faith or intent to work injustice). However, the Court emphasized that the question must be decided by balancing the convenience of all parties.
Applying the principles to the facts before it, the Court considered several salient factual features: most of the B schedule properties lay within Tuticorin/Ramnad jurisdictions while only item 11 was at Ottapalam; the plaint failed to explain the choice of Ottapalam; important alienees and properties were located far from Ottapalam and closer to the districts of the petitioners; parties and witnesses spoke Tamil whereas the Ottapalam court's language was Malayalam; the plaintiff displayed a lack of knowledge about the assignments until disclosed by the 2nd defendant; the plaintiff had sought to impede proceedings in O.S. 57 of 1956 which affected one of the petitioners.
The Court drew an analogy to Logan v. Bank of Scotland where proceedings were stayed as oppressive and an abuse of process because the action was laid in a forum remote from the place of the transactions and parties. Viewing the whole conduct of the litigation and the frame of the plaint, the Court found it likely that Ottapalam had been chosen to create merely a seeming litigation between plaintiff and defendants 1–10 and to disadvantage the alienees. Considering the balance of convenience, the Court concluded the alienees (petitioners) would suffer extraordinary hardship and grave inconvenience if transfer were refused, whereas the plaintiff would not be meaningfully prejudiced or put to heavier expense by transfer.
Holding and Implications
HOLDING: The petition for transfer is allowed and the suit (O.S. No. 45 of 1956) is directed to be transferred from the Sub-Court at Ottapalam to the Ramanathapuram Sub-Court at Madura. There will be no order as to costs.
Implications: The direct effect is that the pending partition suit will proceed in the Ramanathapuram Sub-Court at Madura rather than at Ottapalam, thereby relocating the forum to a court more convenient to the petitioners and to the location of certain contested properties and related proceedings. The Court applied existing statutory provisions (Sections 22 and 23 CPC) and established case law to reach this decision; the opinion applies and relies on earlier authorities but does not purport to lay down a novel legal precedent beyond applying the established principles to the facts before it.
N.V Iyengar, J.:— This is a petition for transfer of O.S No. 45 of 1956 of the Sub-Court, Ottapalam to the Sub-Court, Tuticorin. The petitioners are the defendants 11 to 15 in the suit.
2. The suit was for partition of the plaintiff's one-half share as against the defendants 1 to 10 who comprised the other branch of the joint Hindu family of the parties. The plaint merely averred as the reason for the suit that the plaintiff was dissatisfied with the management of his brother's sons, the defendants 1 and 2 of the B schedule immovables and the C schedule movables belonging to the family and entrusted to them. All the B schedule items except item 11, lay within the jurisdiction of the Sub-Courts of Tuticorin and Ramnad and the parties were also residents at Sattur. The suit could accordingly have been laid in either of these Sub-Courts but the plaint was filed in the Sub-Court at Ottapalam though properly in view of the situation of the item 11, viz. the West Coast Match Co. at that place. The plaint did not however mention the reason for the choice. It also took in only the defendants 1 to 10. The defendants 1, 2 and 3 to 6 filed separate written statements in the case without disclosing much of a contest. They admitted the existence of the joint family as alleged in the plaint but pleaded ignorance as to whether B or C schedule items belonged to the family. The 2nd defendant acknowledged the fact of his management but claimed that it was only as executor under his father's will and further that he had already effected certain alienations in respect of some of the B schedule items. These alienees being the defendants 11 to 17, were on his special motion later impleaded. It may be added that plaintiff has since applied for impleading four more alienees alleged to have been discovered by him. Some time after their own impleading it was that the defendants 11 to 15 filed this petition.
3. The affidavit exchanged between the parties to this petition disclose that the petitioners 1 to 4, viz. defendants 11 to 14 are residents of Tinnevelly District and the properties alienated to them are also in that District while the 5th petitioner, 15th defendant is a resident of Ramanathapuram District, the property mortgaged to her also being within that District. The 15th defendant has further obtained preliminary decree in O.S 57 of 1956 on the file of the Ramanathapuram Sub-Court at Madura and is taking steps for final decree therein. The distance of the place of residence of all the parties to Ottapalam is more than 200 miles. The language of all the parties is Tamil and that of the witnesses who would have to be examined is again Tamil while the language of the Sub-Court at Ottapalam is Malayalam. These facts, taken along with the frame of the plaint and the conduct of the suit so far, it is urged on behalf of the petitioners, indicate that the forum at Ottapalam was chosen in collusion between the plaintiff and defendants 1 to 10 with a view to defeat and delay the petitioners and other alienees as far as possible. Learned counsel says that in the interests of the fair trial of the suit and of convenience and the saving of avoidable time, labour and expense it is just and necessary to have the suit transferred as prayed for. But he left the choice of the Sub-Courts at Tuticorin or Ramanathapuram at Madura to the plaintiff.
4. The petition was strenuously contested on behalf of the plaintiff on the basis mainly that the choice of forum for instituting the suit is that of the plaintiff and he having exercised it, it was not for the defendants in the suit to say differently. No adequate ground for transfer had been alleged either. On the other hand, according to the plaintiff, he would be put to unnecessary loss and inconvenience because he has already employed competent legal advisor for the suit. The contention of the petitioners that solitary item 11—the Match Co., should not have been made the ground for choice of forum, was met by the plaintiff by saying that item was more valuable than all the rest of the items put together. Further support for the plaintiff was sought to be gathered from an affidavit of the 4th respondent-3rd defendant, Saraswathy Ammal particularly suggesting that a Receiver application to safeguard the item 11 and its profits might possibly be called for so as to render inexpedient any disturbance of the suit as now laid.
5. There can, in my opinion, be no doubt about the maintainability of the petition. Sections 22 and 23 of the Civil Procedure Code deal with a case where the plaintiff has a choice of two or more courts in which he may properly institute a suit and the defendant can then apply to have the case transferred out of the court in which it is filed to another court. There are three possibilities contemplated (a) where the alternative courts are subordinate to the same appellate Court, (b) where they are subordinate to different appellate courts, and (c) where they are subordinate to different High Courts. This latest category is dealt with by Section 23(3) under which the present petition is made.
“23(3) Where such Courts are Subordinate to different High Courts, the application shall be made to the High court within the local limits of whose jurisdiction the Court in which the suit is brought is situate”.
6. In Abdul Rahiman & Co. v. Rambux, A.I.R 1916 Nag. 31, Stanyon, A.J.C no doubt expressed the view that section 24 C.P.C was exhaustive of the judicial power to transfer suits, that section 22 did not grant express power on the High Court to make the transfer and section 23(3) has no value for the purpose of procedure. But this opinion was overruled by later decision of that court in Firm Kanhaiyalal Daga v. Zumerlal, A.I.R 1940 Nag. 145, (Stone, C.J and Vivian Bose, J.) which held quite definitely
“The High Court has jurisdiction to transfer a suit pending in a court subordinate to it to a Court subordinate to another High Court.”
7. See also Ram Kumar v. Tula Ram, A.I.R 1920 Pat. 138, (Jwala Prasad, J.) where the learned judge said:
“I do not agree with the view taken by Mr. Stanyon in Abu Backer Abdul Rahiman & Co. v. Rambux, A.I.R 1916 Nag. 31, that a High Court has no such power of determination and that such a determination will in any way create anomaly or difficulty. An order of a High Court under S. 22, that a suit shall proceed in a Court subordinate to another High Court, will be final and it will not be open to another High Court, to refuse the suit being tried in the Court subordinate to it having jurisdiction to try it”.
8. Indeed the competency of the petition was not objected to by learned counsel for the respondents.
9. The question now is whether the exercise of this power under section 23(3) is in this case, expedient. Now in considering a petition by a defendant under this section, the courts have laid emphasis on the circumstance that the plaintiff had the choice of the forum as arbiter litis and has chosen his court. Therefore it has been laid down that very strong reasons must be shown by the petitioner-defendant to deprive the plaintiff of this choice. So it was said in Pragji Soorji & Co. v. Kalu Mal-Shori Mal & Co., A.I.R 1924 Lah. 306, where a large number of cases on the subject were considered,
“The rule to be deduced from the authorities, particularly the two most directly applicable, Jawahir Kumari Debi v. Suresh Chandra Bose, (1920) 1 Pat. L.T 389 and Hindustan Assurance and Mutual Benefit Society. Ltd. v. Mulraj, (1915) 27 M.L.J 645 is that the right of a plaintiff to institute a suit in a Court in which the law permits him to sue should not be interfered with by the High Court in exercise of its extraordinary jurisdiction unless the suit is brought in bad faith for the purpose of working injustice to which the defendant would not be subjected if suit were brought in another competent court. Here I can discern no such intention on the part of the present plaintiffs and all that the defendants have succeeded in showing is that it would be more convenient to them to have the action tried at Bombay.”
10. Reference may also be made Firm Kanhaiyalal Daga v. Zumerlal, A.I.R 1940 Nag. 145 already cited, for the proposition.
“In deciding the question whether it is expedient to order transfer of the suit the convenience of the parties is indeed a factor which enters into consideration, but it is obvious that the convience of both parties, have to be weighed and the matter must ultimately turn on the balance of convience.”
11. In Logan v. Bank of Scotland, (1906) 1 K.B 141 the action was brought in England for damages for misrepresentation in the prosepectus of a company of which the Bank of Scotland were bankers. All the parties lived in Scotland except one defendant Scott who reside in London and who was held out to be a substantial defendant, being an undischarged bankrupt. All the transactions which gave rise to the alleged cause of action took place in Scotland. The Bank of Scotland had no branch out of Scotland except one in London. The Company was registered in Scotland; its business was carried out exclusively in Scotland. In the circumstances the Court of Appeal restored the order of the Master in Chambers which had stayed the proceedings on the ground that the action was veracious and oppressive and an abuse of the process of the court. It seems to me that there is much similarity between the suit here filed in Ottapalam and the action laid in England in the Scottish Bank case above. It was rather remarkable the plaintiff did not know anything about the assignments effected by the 2nd defendant whom he brought in the suit and it required the 2nd defendant to reveal them and require the impleading of the alienees concerned. The plaintiff, on being asked by me, hastened to disaffirm these alienations though he has not so far amended the plaint. The plaintiff further evinced keenness in this court to get a stay of further proceedings in O.S 57 of 1956 at the instance of the 15th defendant decree-holder. It would seem on the whole that the plaintiff and defendants 1 to 10 had not much of a real difference between them in the whole matter of partition or otherwise and Ottapalam was chosen as the venue of a merely seeming litigation between them. I am not impressed that the transfer from Ottapalam as prayed for is calculated to involve the plaintiff in heavier expense. I think on the other hand the defendants-alienees would be put to extraordinary hardship and grave inconvenience if the suit is not transferred.
12. Learned counsel for the plaintiff said that if I decide to allow transfer it may be to the Ramanathapuram Court. I therefore allow the petition but direct that the suit herein be transferred to the Ramanathapuram Sub-Court at Madura. There will be no order as to costs however.
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