1. This is an application by the defendants for transfer of Suit No. 1 of 1919 pending in the Court of the Subordinate Judge of Purulia. The circumstances under which this application has been made are as follows:

The plaintiffs are a firm carrying on business at Calcutta and Purulia. The defendants are also a firm carrying on business as merchants and commission agents at Bombay. The plaintiffs employed the defendants as their agents for the purchase and sale of piece goods and cotton in the Bombay market. The plaintiffs have brought the present suit in the Court of the Subordinate Judge of Purulia against the defendants for rendition of accounts, for returning the papers belonging to them and for recovery of Rs. 1,100 or such further amount as may be found due to them on account being taken and on payment of additional court-fee.

2. The reason for bringing the suit in Purulia is stated in para. 5 of the plaint, to be that the defendants agreed to state and settle their accounts and submit all papers to the plaintiffs' firm at Purulia and that the cause of action arose at Purulia. The plaint in the present suit at Purulia was filed on 3rd January, 1919.

3. On 4th May, 1919 the defendants in the present case likewise brought a suit in the Bombay High Court on its original side against the plaintiffs for account and for recovery of Rs. 26,736 odd as the amount due to them from the plaintiffs.

4. The plaintiffs, who are defendants in the suit at Bombay, applied to the Bombay High Court for stay of that suit until the present suit at Purulia was decided. That application was opposed by the defendants in the present case, and the High Court of Bombay on 12th July, 1919 made an order that the suit and all proceedings in the Bombay Court be stayed until the disposal of the present suit at Purulia.

5. In the meantime, on 11th July, 1919, the defendants in the Purulia case made an application to this Court, alleging that they were not aware of the suit at Purulia and came to know of it during the pendency of the motion at Bombay.

6. In support of this application two grounds have been urged in paras. 6 to 8:

(1) That all the witnesses of the petitioners, about 30 in number, are traders and brokers of Bombay. They reside and carry on their business at Bombay beyond the jurisdiction of the Purulia Court and will not be available for examination at Purulia and will have to be necessarily examined by commission. The defendants, who are residents of Bombay, will be put to great inconvenience and expense and will be seriously prejudiced in their defence in the event of the case being tried at Purulia.

(2) Both the suits at Bombay and at Purulia arise out of the same transaction and relate to accounts between the parties, the former covering all the issues that will arise in the Purulia suit which has been instituted with the mala fide intention of delaying the disposal of the case at Bombay.

7. The petitioners also challenge in para. 5 of their petition the competency of the Purulia Court to entertain the present suit, on the ground that the contract between the parties was entered into and the moneys due thereunder were payable at Bombay, where they were employed as agents by the plaintiffs. In other words, it is stated that the cause of action did not arise at Purulia and the suit could not be instituted there.

8. The petitioners repeated the aforesaid grounds in their sworn affidavit of 11th March, disclosing the names of some of their witnesses at Bombay and stating more definitely and clearly their objection as to the jurisdiction of the Purulia Court to try the suit.

9. On the other hand, the plaintiffs opposite party have filed counter-affidavits, dated 10th March and 9th April, 1920. In the latter it is stated that it will be necessary for them (the plaintiffs) to adduce, besides documentary evidence oral evidence of witnesses from Purulia, and Calcutta; that the proprietors of the defendants' firm live in Calcutta and have their office in Calcutta, as is shown by the correspondence between the attorneys of the defendants' firm, Messrs Marwangi Kola & Co., Bombay, and the plaintiffs' attorneys, Messrs Pugh & Co., Calcutta, dated 10th December, 1918 and 13th June, 1919. The allegation as to the cause of action having arisen in Bombay is also refuted.

10. Both the suits relate to accounts between the parties who are at variance with regard to the two important points which arise for consideration in connexion with this application:

(1) Whether the cause of action for the suit arose at Purulia within the jurisdiction of this Court, or at Bombay.

(2) Whether the balance of convenience lies in trying the suit at Purulia or at Bombay.

11. If the first question is decided in favour of the defendants, then the application for transfer would become unnecessary, and unless that question is decided against the plaintiffs and it is held that the case has been properly instituted in the Purulia Court, the application for transfer is incompetent, inasmuch as under Section 22 of the CPC, such an application can only lie

“where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts.”

12. If the cause of action did not arise at Purulia, the suit could not be instituted in that Court and any application under Ss. 23 and 24 would be incompetent. This is an issue in bar and has to be determined by the Purulia Court where the suit has been filed. This issue has not yet been tried and in fact the defendants have not filed their written statement even. Mr. Manuk says that his clients could not delay the filing of this application and await the decision of that issue, inasmuch as an application under S. 22 has to be made

“at the earliest possible opportunity and in all cases where issues are settled at or before such settlement.”

13. But in a case of this kind where the defendants contemplated an application for transfer and also thought that the Purulia Court had no jurisdiction to try the case, the proper course to my mind was to file a written statement and to apply to the Purulia Court to try in the first instance, the question as to the jurisdiction of that Court to entertain: the suit and at the same time intimating that, if the decision was against them, they intended to apply for the transfer of the case to the Bombay High Court. It was, to my mind, also open to them to ask this Court to have the issue as to jurisdiction tried by the Purulia Court in the first instance and then to take up this application for transfer in case that issue was decided against them. In any case the petitioners cannot raise an issue as to jurisdiction of the Purulia Court and at the same time apply for transfer of the case under S. 22 of the Code, which contemplates that the suit may be properly instituted in the Purulia Court as well as in some other Court. In this view the present application for transfer is incompetent as was held in cases similar to the present one, Sachendra Nath Mitra v. Muhammad Habibullah(1) and Asharan Boid v. Bhola Nath(2).

14. In order to decide the second question I shall assume that the case has been properly instituted in the Purulia Court and that the present application for transfer is competent.

15. The prayer in the application is that the suit in question be transferred to Bombay. I understand from Mr. Manuk that the application is under Ss. 22 and 23 of the Code, although, probably by inadvertence, S. 21 has been mentioned in place of S. 23 in the petition to this Court. S. 22 provides for an application for transfer and empowers the Court, to which such application is made, after considering the objections of the other parties to the suit, to “determine in which of the several Courts having jurisdiction the suit shall proceed.” S. 23 indicates the Court to which an application under S. 22, should be made. Cls. (1) and (2) do not apply to this case as they relate to cases where the several Courts having jurisdiction to try the suit are subordinate to the same appellate Court or to the same High Court. The application of the defendants, therefore, comes under Cl. (3), S. 23, which provides that where the several Courts are subordinate to different High Courts, the application under S. 22 shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

16. The question is whether this Court can transfer the suit from the Purulia Court to any Court subordinate to the High Court at Bombay. S. 24 of the Code deals with transfer and withdrawal of suits on application having been made under Cls. (1) and (2), S. 23, and does not therefore apply to the present application. By that section express power of transfer has been given to the High Court or the District Court, as the case may be, but for cases which may be instituted in Courts subordinate to different High Courts, no such special provision has been made, so that this Court has no power by any express provision of the Court to transfer a case from the Court subordinate to it to any other Court subordinate to the Bombay High Court, or to the Bombay High Court itself. The Court can only dispose of the present application for transfer in the manner prescribed by S. 22, under which it can only “determine in which of the several Courts having jurisdiction the suit shall proceed.” The power of the Court is therefore limited to the determination as to where the suit shall proceed, at Bombay or at Parulia, assuming that the Courts at both the places have jurisdiction to try it, I do not agree with the view taken by Mr. Sbanyon in Abu Bakar Abdul Bahiman & Co. v. Rambux(3) 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.

17. The petitioners urge that the suit at Purulia should not proceed inasmuch as the suit in the Bombay High Court is more comprehensive and covers the issues involved in the Purulia Court (vide para. 12 of the petition). But the suit in Bombay has already been stayed by an order of the Bombay High Court until the disposal of the suit at Purulia. The order of the Bombay High Court is final and the Bombay suit therefore cannot proceed. The present suit at Purulia must therefore proceed.

18. Mr. Manuk however contends that although the suit at Bombay has been stayed and the order cannot be reopened in this Court, he is still entitled to a determination that the present suit should be tried at Bombay. This he will be entitled to only upon showing either that he will not have an impartial trial at Purulia; or that the manifest preponderance convenience in the present case is in favour of the present suit being tried at Bombay. There is no suggestion as to the existence of the former ground in the present case, namely, that there will not be an impartial trial of the suit at Purulia.

19. Now as to whether there is manifest preponderance of convenience in the present suit being tried at Bombay rather than at Purulia, Mr. Manuk says that on behalf of the petitioners 30 witnesses will have to be examined in the case, all of Bombay and men of great wealth and position, and that it would not be possible to bring them to Purulia and in fact under the law they cannot be compelled to come to Purulia, inasmuch as the place of their residence is beyond the jurisdiction of the Purulia Court. Further it is said that it will cause great inconvenience to bring on record huge account books from Bombay either in the applicants' own possession or in the possession of their witnesses.

20. Mr. Ashgar, on the other hand asserts that his witnesses live in Calcutta and Purulia, and contends that no such voluminous documents, as has been stated on behalf of the petitioners, will be required in the case. Upon the affidavit in this case filed on behalf of the clients of Mr. Ashgar it appears that the defendants' firm have also some office in Calcutta and that they were willing to show their account books to the plaintiffs in the present case in Calcutta. Whereas the witnesses on behalf of the defendants are said to reside in Bombay the plaintiffs themselves reside within the jurisdiction of the Purulia Court; and whereas the evidence of the witnesses can he had by commission, the evidence of the plaintiffs themselves if they want to examine themselves in the case must necessarily be taken in Court, for parties can seldom examine themselves by commission. While looking to the convenience of the defendants, one cannot overlook the inconvenience of the witnesses on behalf of the plaintiffs or the plaintiffs themselves, particularly when they have in the first instance the right to choose the venue in which they would prosecute their suit.

21. I am not satisfied upon the affidavit in this case that the balance of convenience preponderates in favour of the defendants. Much stronger grounds than in the present case were alleged in the case of Helliwell v. Hobson(4), and still the Court did not allow the change of venue. No doubt in the case of Harendra Lall Roy v. Sarvamangata Dabee(5) the balance of convenience was held to lie in the Court other than the Court in which the suit was instituted; but the defendant in that case was a lady whose evidence was essential in the case and who, the Court held, could not go to Dinagepur without much inconvenience and expense which she was not able to afford. The circumstances of that case might have been sufficient to entitle the defendant to have his case transferred to Calcutta. But the circumstances of each case differ. The majority of the Judges have in the circumstances more or less similar to those in the present case or even under stronger circumstances declined to change the venue and to deprive the plaintiff of the right to choose his own venue. The facts of this case are similar to those of Askaran Boid v. Bhola Nath, Abu Bakar Abdul Rahiman & Co. v. Rambux and Sachendra Nath Mitra v. Muhammad Habibullah, where applications for transfer similar to the present one were refused: vide also Muthia Chetty v. Arunachallam Chetty(6). The fact that the Bombay High Court has already stayed the suit pending there strengthens the position of the plaintiffs in the present case.

22. Considering all the circumstances I do not see my way to accede to the request of the defendants-petitioners and dismiss the application and direct that the case at Purulia do proceed.

23. The application is rejected with costs. Hearing fee five gold mohurs.

V.S/R.K

24. Application rejected.