Jagannadhadas, C.J:— This is an application for transfer of original suit No. 588/50 from the Court of the Subordinate Judge, of Balasore, to the Court of the Subordinate Judge of Cuttack, to be tried and disposed of along with original suit No. 59/50 pending in the latter Court. For the sake of convenience, one may be called the Balasore suit and the other as the Cuttack suit. The Cuttack suit was filed on 18-8-1950, and the Balasore suit is said to have been filed somewhat later.
2. The trial of both the suits has been stayed by orders of this Court dated 5-11-51 and 13-2-52. It is stated that the trial in both the suits has not yet commenced. It is necessary to state briefly the admitted facts and the allegations in each, in order to appreciate the grounds on which this application for the transfer of the Balasore suit to Cuttack and for the joint trial of both together has been made. The plaintiff in the Cuttack suit, Srimati Snehalata Dei is the wife of the defendant therein Sri Samanta Radha Prasanna Das. Her suit is one for maintenance against her husband with a charge therefor on his properties and for provision of a house in Cuttack for her separate residence. Sri Samanta Radha Prasanna Das is a rich person owning considerable properties in the districts of Balasore, Cuttack, and Puri having his ordinary residence at Balasore. Srimati Snehalata Dei was married to him in the year 1929, and bore him only two daughters the second of whom was born in the year 1933, and the first died in the year 1941.
3. Sri Samanta Radha Prasanna Das married also a second wife by name Srimati Sailarani in the year 1947. It is the case of the plaintiff in the Cuttack suit that since that second marriage her husband began to neglect her and her. A surviving daughter, and to illtreat her in various ways, and that he began to lead a debaucherous life with the elder sister of his second wife giving birth to an illegitimate child of suspicious parentage in the year 1947. She further alleges that though her daughter Srimati Santilata. Dei attained marriageable age, the defendant neglected her marriage and was, indifferent to certain negotiations for a desirable match and that the ill-treatment and indignities offered to her and to her daughter by the second wife and her relations who had by then been brought over as part of the household of her husband, became intolerable, and that even the lives of herself and her daughter were in danger and that for the sake of safety, she was obliged to leave the family residence at Balasore.
4. She alleges that she accordingly came away to Cuttack on 13-4-50 for shelter in her father's house. She therefore brings her suit for maintenance at the rate of Rs. 1000/- a month and for provision of separate residence in a house of the defendant situated in Cuttack and for a charge on the plaint-schedule properties of her husband for the due payment of the maintenance to be decreed.
5. The Balasore suit is a suit brought by the husband Sri Samant Radha Prasanna Das. He brings the suit against his wife Srimati Snehalata Dei and his daughter Srimati Shantilata Dei, who are defendants 6 and 7 therein and as against five others. Defendants 3 and 4 are the father and brother of the plaintiff's wife by name Sri Radha Mohan Pattnaik and Sri Bhuban Mohan Pattnaik, respectively and defendants 1, 2 and 5 are three other persons by name Sri Puma Chandra Mohanty, Sri Bhawani Prasad Mohanty and Sri Sarat Chandra Parija respectively. Defendant 2 is said to have been married to the 7th defendant the daughter of the plaintiff under alleged circumstances which according to the plaintiff Sri Samant Radha Prasanna Das makes the marriage invalid. The 1st defendant is the father of the 2nd defendant, and the 5th defendant is the son-in-law of the 1st defendant.
6. The allegations on which the plaintiff in the Balasore suit has brought the suit as against all these persons impleading them together, as defendants, are that defendants 1 and 5 were making overtures for the marriage of the second defendant with the seventh defendant and were putting pressure upon him to agree to the & same, but that for various reasons he was unwilling to agree and was searching for another suitable bride elsewhere without giving them any final word. He alleges that the said two defendants influenced defendants 3 and 4 and through them persuaded defendant 6 to have the marriage of the 7th defendant performed with D. 2, though he himself was unwilling and later on definitely expressed his unwillingness. It is said that thereupon defendants 1 to 5, baffled in their attempts to persuade him to agree to the proposed match, conspired together, and thereby seduced and enticed away defendants 6 and 7 from the plaintiff's lawful custody, and wrongfully persuaded defendants 6 and 7 to leave his house on 12-4-50 when he was absent.
7. It is further alleged that defendant 6 carried away with her at the time, movables, ornaments, and cash worth several thousand rupees. It is also alleged that subsequently all of them got defendants 2 and 7 to go through a form of marriage secretly and without the plaintiff's consent and without proper religious rites. On the above allegations, the plaintiff in the Balasore suit brought his suit for damages for a sum of Rs. 50,000/- for the consequential deprivation of his legal right to the consortium of his wife, D-6, and the deprivation of the services of his wife and daughter, defendants 6 and 7,.as also for the loss suffered in his prestige and in the estimation of the general public.
8. This application before us for transfer of the Balasore suit to Cuttack, is made jointly by all the defendants therein and is strongly opposed by the plaintiff. The applicants want the transfer on the ground of balance of convenience to all the parties concerned and for the purpose of a joint trial of the two suits as they involve almost identical questions of fact. This is strenuously opposed on behalf of the plaintiff in the Balasore suit on the ground that such a transfer would be a great hardship to him and involve him in considerable expenses and that the Court ought not to interfere lightly with his choice as to the forum of his suit. It is no doubt a well-established principle that the plaintiff has the choice of his forum so long as the suit is not subject to the defect of want of local jurisdiction and that a suit is not to be transferred from the Court where the plaintiff chooses to institute it, merely to serve the convenience of the defendants.
9. That is the principle that has been relied on by learned counsel for the respondent before us, citing the cases in — ‘Madho Prasad v. Moti Chand’, 41 All 381 and — ‘Diwan Singh v. Arjanshah’, AIR 1930 Lah 944. On the other hand, there can also be no doubt that where there are two suits which raise certain common questions of fact and law, having a substantial bearing on the decision of each of the cases, it is obviously desirable that they should be tried at the same place and by the same Judge. This course is necessary in order to avoid multiplicity in the trial of the same issues and conflict of decisions. When such a situation arises the Court has to consider the balance of convenience, having regard to all the circumstances of the two suits. If any authority were needed for this, it is sufficient to refer to — ‘Saroj Bashini Debi v. Girija Prasad’, AIR 1926 Cal 326; — ‘Sheo Nandan Lal v. Mangal Chand’, AIR 1927 Pat 383 and — ‘Vaman Vasu-deo v. Raghunath Ganesh’, AIR 1949 Bom 263. Now in the present cases before us, it is the latter considerations that are more applicable as may be seen presently.
10. The Balasore suit is based substantially on the allegation that with a view to bring about the marriage of the 7th defendant with the 2nd defendant secretly and against the wishes of the plaintiff, defendants 1 to 5 conspired to seduce and entice away defendants 6 and 7 and brought out defendants 6 and 7 in the night from the plaintiff's residential house at Balasore with movables, ornaments and cash etc., and without the knowledge of the members of the plaintiff's family and took them to Cuttack. The suit is for damages for loss of reputation, loss of consortium of D-6 and for the loss of services of defendants 6 and 7 and for damages caused thereby to the prestige and estimation of the plaintiff.
11. It is the admitted fact in both the cases that the wife and the daughter of the plaintiff, in the Balasore suit, did leave his residential house at Balasore on 12-4-1950, and that as a fact the daughter was married (lawfully or otherwise) to the second defendant in the Balasore suit. The plaintiff in the Cuttack suit however has her own version about these incidents and alleges that the substantial reason for her leaving the residential house of her husband at Balasore was the ill-treatment of herself and her daughter by her husband and his second wife and also by the latter's paternal relations and the indignity and cruelty which were shown to them making their life intolerable. She alleges also the neglect by her husband about her daughter's marriage and the consequent necessity arose to contract that marriage alliance without any further delay as the cause for her performing the daughter's marriage at Cuttack without her husband's consent.
12. Thus, the circumstances which led to the wife leaving her husband's residential house at Balasore and getting her daughter married at Cuttack behind the back of her husband, are the essential foundations of the Balasore suit and are also the important factors in the Cuttack suit. No doubt, normally speaking, in view of the recent legislation, which entitles the wife to maintenance and separate residence on the mere fact of her husband having married a second wife, it may not be any longer legally necessary for the wife in order to make out her right to maintenance to allege and prove the neglect, ill-treatment and cruelty of the husband but in the present case, the defendant in the Cuttack suit has definitely pleaded that his wife, by her conduct has deprived herself of the right of maintenance notwithstanding the Act and some of the specific issues raised in the Cuttack suit are issue Nos. 1 and 2 which are as follows:
(1) “Has the plaintiff any cause of action to bring the suit?
(2) Is the suit barred by principle of estoppel?”
13. It is not necessary to consider at this stage whether these pleas are tenable but it is sufficient to notice that the very plea of the defendant in the Cuttack suit puts in issue all the facts which form the foundation of his Balasore suit. Besides, the alleged ill-treatment of the husband, and the circumstances under which she was obliged to leave the residential house and the allegation, if proved that she left her husband's home inspite of good treatment, and carried away with her movables, articles, and jewels worth Rs. 64,100/- have a very substantial bearing on the quantum of maintenance that the plaintiff may be entitled to, and the nature of the provision by way of separate residence that she can get.
14. There can be no doubt, therefore, that the two cases raise very substantial common questions of fact which, it is desirable and necessary, should be tried at the same place and by the same Judge. This impression is confirmed by a close perusal of the plaint and the written statement in the respective suits. Paragraphs 3 to 13 of the plaint in the Balasore suit contain in substance, the same averments as those in paras. 8 to 13 of the written statement of the defendant in the Cuttack suit. Similarly, paras. 8 to 15 of the plaint in the. Cuttack suit are substantially the same as paras. 14 to 19 of the 6th defendant's written statement in the Balasore suit. There cannot be any doubt therefore as to the desirability and necessity for the two suits being tried together.
15. Learned counsel for the respondent before us, however, says that the two suits have to be tried at Balasore, and not at Cuttack. Though there is no specific application, before us in that behalf by the plaintiff in the Balasore suit, he points out that such a suggestion has been made in Para. 11 of the objection filed on his behalf before us to the application for transfer. Learned counsel accordingly invites us to act upon it. In support of the desirability of both the suits being tried at Balasore, he contends that the plaintiff in the Balasore suit has suffered considerable loss of prestige and indignity in the estimates of the 4 Balasore public of which he is an important and respectable member and that therefore, it is only by the trial of his suit at Balasore that his honour can be sufficiently vindicated. We are, however, not impressed with this consideration.
16. In view of the admitted fact that the wife and the daughter of the plaintiff in the Balasore suit did leave the family house at Balasore without the knowledge of the husband, it certainly is not likely to aid to the family prestige that the responsibility for the same is fixed on the one party or the other. Considered from the point of view of family prestige, if that be a permissible consideration, trial in the more detached atmosphere of a metropolitan—place like Cuttack is more desirable than at a smaller district head quarter like Balasore. It has also been urged that as regards one of the main incidents, viz., the wife leaving the husband's house with her daughter, without his knowledge and the circumstances attendant on it, the witnesses will be of Balasore, and that it will entail heavy expenditure for the plaintiff therein to get them to Cuttack.
17. But it can be equally said on the other side that the disputed question of the marriage of the daughter which has been put in issue Cuttack witnesses have to be examined. Considered therefore from the point of view of balance of convenience of all the parties concerned including the plaintiff in the Balasore suit, we feel no doubt that the trial of both the suits at Cuttack is more desirable. The plaintiff in the Balasore suit has admittedly a substantial house and a staff at Cuttack, and the trial of his suit at Cuttack cannot be serious inconvenience to him. Most of the Balasore witnesses are likely to be his dependants. He himself says in para 15 of his written statement in the Cuttack suit with respect to that house, which is referred to in the pleadings, as the “Sheikbazar building at Cuttack” as follows:
“The plaintiff knows that the Sheikbazar house is the only house of the defendant in the capital of the Province and that it is being used by the defendant and his family and the officials whenever they go to Cuttack for medical aid, litigation and other business”.
18. Besides, the wife and the daughter of the plaintiff in the Balasore suit are strangers at Balasore, apart from their relationship with the plaintiff himself, which, for whatever reason, has got considerably strained. It may not be easy for her to command proper facilities to conduct her litigation there. If therefore the question had to be considered only with reference to the balance of convenience as between the husband on one side and the wife and the daughter on the other, that balance is decidedly in favour of the common trial of the two suits being held at Cuttack. But it has also further to be remembered that the application for transfer of the Balasore suit to Cuttack, is made not only by the defendants 6 and 7, but also on behalf of the defendants 1 to 5 therein, who are admittedly residents of Cuttack and are persons having substantial occupations and responsible positions at Cuttack.
19. The plaintiff in the Balasore suit refers to them in his plaint para. 14 as the “principal defendants” by whose act of enticement and seduction, defendants 6 and 7 (sic) away from the house of the plaintiff during his absence, and alleges that he (plaintiff) has been thereby deprived of his legal right to the consortium of his wife and the services of his wife and daughter. Obviously, therefore, (one of) the main, if not the sole purpose of the Cuttack suit is to get relief against defendants 1 to 5. The allegation on which they have been made party defendants and have been styled “principal defendants” is contained in para. 10 of the plaint in the Balasore suit and is as follows:
“That ultimately on 12-4-50, when the plaintiff was absent in Mofusil, the defendants managed to persuade and bring out at night defendants 6 and 7 from the plaintiff's residential house with movables, ornaments and cash worth several thousands of rupees, without the knowledge of any of the members of the plaintiff's family and took them to Cuttack. Thus, they wrongfully persuaded defendants 6 and 7 to leave the plaintiff's house without the consent and against the will of the plaintiff and succeeded in doing that.”
20. It is not quite clear from this whether what is alleged against these defendants is their physical participation by their presence at Balasore, in the stealthy act of bringing out and taking away defendants 6 and 7 from the residential house of the plaintiff. What exactly the plaintiff has in view with reference to the allegations in this paragraph may no doubt be brought out more clearly in the course of the evidence and trial; but at the present stage it is a matter relevant for consideration whether defendants 1 to 5 are to be compelled to face the serious charge against them at Balasore and not at their own place on a somewhat vague allegation of this kind, though no doubt, there may be enough in these allegations to give jurisdiction to the Balasore Court as against these defendants, a point which has been conceded before us, by the advocate for the petitioners.
21. It appears to us therefore to be desirable that having regard to the fact that the plaintiff in the Balasore suit himself considers defendants 1 to 5 as the principal defendants, and having regard to the nature of allegations against them, and their responsible positions in life and occupations at Cuttack, there is also the greater reason for the joint trial of the two suits being conducted at Cuttack rather than at Balasore.
22. There is also another important consideration which weighs with us in coming to this conclusion. The two suits arise out of a regrettable domestic quarrel between the husband and the wife of a respectable and leading family in this State. There are allegations and counter-allegations of serious nature in the pleadings in both the suits. The plaint in the Cuttack suit unfortunately drags into it the question of the married status of Srimati Sabitri Devi with Sri Samanta Dadha Prasanna Das and the legitimacy of the son born to her. On the other side the plaint in the Balasore suit equally unfortunately raises the question of the validity of the marriage between 7th defendant and the 2nd defendant therein.
23. How far any trial of these important questions of status is relevant and necessary for the disposal of the main issues that arise in these two cases, is a matter which will no doubt require the careful consideration of the Court trying the two suits; but even if it be found that, in some way, they are relevant, it is obvious that having regard to the serious allegations and counter allegations made in the two suits, it is necessary that a very senior judicial officer who can keep some reasonable and legitimate check over the conduct of these suits and over the evidence sought to be adduced therein, has to try these suits.
24. Therefore, we have thought it necessary and desirable that these two suits should be tried by a person of the responsible position and experience of a District Judge. Balasore is a place, where the suits can be tried only by a subordinate Judge, while at Cuttack there is the scope for the suits being tried by a District Judge and with the help of a metropolitan bar. Taking all these above circumstances into consideration, we have come to the conclusion that both the suits have to be tried together at Cuttack and that they should be handled by a District Judge at Cuttack.
25. We accordingly direct a transfer of the above two suits, i.e, O.S 588/50, in the Sub-Court at Balasore and O.S 59/50 in the Sub-Court at Cuttack, to the Court of the District Judge of Cuttack for trial by him or by the additional District Judge as the District Judge may direct. The application is allowed as above and there will be no order as to costs.
Panigrahi, J.:— I agree.
B/D.H
26. Application allowed.