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Yuvraj Datt Singh v. Tej Datt Singh
Structured Summary of the Opinion
Factual and Procedural Background
Two applications under Section 23, Civil P.C., were made by defendants Raja Yuvraj Datt Singh and Thakur Bhairon Singh. The suit, instituted on 28 February 1933 in the Court of the Subordinate Judge, Aligarh, was brought by the plaintiff Madho Singh concerning the Oel Estate in Oudh formerly belonging to Raja Krishna Dat Singh (died 15 December 1932). Parties include Raja Krishna Dat Singh's widow Thakurain Anand Kunwar (also a defendant), his legitimate son Thakur Tej Dat Singh (whose mental condition—congenital idiocy—was disputed), and Yuvraj Dutt Singh who claims to be a descendant entitled under a will purportedly executed by Raja Krishna Dat Singh. The plaintiff alleges Tej Dat Singh is excluded from inheritance due to congenital idiocy, disputes Yuvraj Dutt Singh's legitimacy, challenges the will's effect and its execution capacity of the testator, and alleges the widow relinquished her rights.
No written statements were filed by the defendants before the present applications to the High Court to determine the proper forum for trial: whether the Subordinate Judge at Aligarh or the Chief Court of Oudh on the original side (Lucknow) should try the suit. One applicant's motion (Yuvraj Dutt Singh) was made without the notice contemplated by Section 22, Civil P.C.; the other (Bhairon Singh) was preceded by such a notice. The plaintiff objected both on procedural grounds (absence of notice) and on the basis that Section 23 does not apply where one of the competing fora is a High Court or Chief Court on its original side.
Legal Issues Presented
- Whether an application under Sections 22 and 23, Civil P.C., can be used to seek transfer of a suit where one of the Courts having jurisdiction is the Chief Court of Oudh (i.e., a Court trying cases on the original side and not a subordinate Court).
- Whether absence of the notice contemplated by Section 22, Civil P.C., is fatal to an application for transfer (raised in relation to Yuvraj Dutt Singh’s application).
- Whether, in the absence of a specific statutory provision applicable to the situation, the High Court may invoke its inherent power under Section 151, Civil P.C., to determine which of two competent Courts should try the suit.
- On the facts, which forum is appropriate for the trial: Subordinate Judge at Aligarh or Chief Court of Oudh on the original side?
Arguments of the Parties
Applicant-Defendants' Arguments
- Both applications proceeded on common grounds seeking determination of the proper forum for trial (transfer from Aligarh to the Chief Court of Oudh).
- They contended that almost all material witnesses and the parties resided in Oudh and that the substantial portion of the estate in dispute lay in Oudh; hence it was more convenient and appropriate for the Chief Court (Lucknow) to try the suit.
- It was urged that the Chief Court would be better equipped—by familiarity with the Oudh Estates Act and the local issues—to try the suit than a Subordinate Judge at Aligarh.
Plaintiff's Arguments and Objections
- The plaintiff alleged substantive grounds in his plaint challenging title: that Tej Dat Singh is congenitally idiotic (excluded from inheritance), that Yuvraj Dutt Singh is not a legitimate son, that the will relied upon does not confer title and that Raja Krishna Dat Singh lacked testamentary capacity; and that the widow had relinquished rights.
- On procedure, the plaintiff's advocate objected that Yuvraj Dutt Singh's application did not comply with Section 22, Civil P.C., which requires notice to other parties before making such an application.
- The plaintiff also contended that Section 23 does not apply where the alternative forum is a High Court (or Chief Court) trying the suit on its original side and therefore a Section 23 application could not be made to transfer the suit from a subordinate court to the High/Chief Court.
- In affidavits the plaintiff disputed the defendants' assertions about the location of witnesses, asserting some witnesses would come from Nepal, Benares, Allahabad, Rajputana and England; plaintiff maintained that he might need witnesses from outside Oudh.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pragji Soorji & Co. v. Kalu Mal Shori Mal & Co., A.I.R. 1924 Lah. 306 | Held that Sections 22 and 23, Civil P.C., deal with transfers between Courts subordinate to appellate Courts and do not provide for transfer to the original side of a High Court from a subordinate Court. | The Court noted this authority was relied upon for the proposition that Sections 22 and 23 do not cover transfer to the original side of a High/Chief Court; the Court considered and treated this as supportive of the view that Sections 22 and 23 cannot be applied where one forum is the Chief Court on the original side. |
| Hindustan Assurance and Mutual Benefit Society Ltd. v. Mulraj, A.I.R. 1915 Mad. 608 | Held that Section 23 does not apply where the Court in which the suit had been instituted was not a Court subordinate to a High Court. | The Court cited this decision as consistent with the proposition that Section 23 is inapplicable when the competing forum is not subordinate (i.e., when one forum is a High/Chief Court on the original side). |
| Hyat Mohamed v. Mannu, A.I.R. 1927 Cal. 290 | Supported the view that a Judge on the original side of the High Court should not be treated as a subordinate Court for the purposes of Sections 22/23 (though the precise point was not considered in detail). | The Court referred to this case as reflecting a similar view; it observed that the precise point was not fully considered in that decision but regarded it as tending to the same conclusion. |
| Ramanathan Chetty v. Ramanathan Chetty, A.I.R. 1923 Rang. 22 | Held that Section 23 read with Section 22 may imply subordination where a case is triable by a Judge of the High Court on the original side because appeals lie to a Division Bench of the same High Court, and thus a Division Bench could entertain an application under Section 22. | The Court acknowledged this authority and its reasoning, but treated it as based more on expediency and the practical power of a Division Bench; ultimately the Court considered the authority distinguishable and rejected the broader applicability of Sections 22/23 in the present situation. |
Court's Reasoning and Analysis
The Court first noted the procedural posture: two applications under Section 23, Civil P.C., to determine the proper forum; one application had not been preceded by the Section 22 notice. Although a preliminary objection was raised as to notice, the Court declined to decide whether absence of the notice was fatal and proceeded to decide the applications on their merits.
The Court examined the textual scope of Sections 22 and 23, Civil P.C., and surveyed authorities which had held that those provisions apply to cases involving transfers between Courts subordinate to the same appellate Court or the same High Court, but do not expressly provide for transfer from a subordinate Court to the original side of a High/Chief Court. It recognized conflicting precedents, including a decision that treated a Division Bench as competent to entertain transfer applications where a Judge of the High Court was hearing the suit on the original side.
After analysis, the Court concluded that Sections 22 and 23 do not, in terms, apply where one of the several competent Courts is a High Court or the Chief Court sitting on the original side. The Court reasoned that construing the sections to make them apply would lead to an anomalous notion that a High/Chief Court is subordinate to itself (i.e., that a Judge sitting on the original side is subordinate to the Division Bench of the same Court), and that prior authorities which had allowed such transfers based on expediency did not establish a rule of law covering the present situation.
Recognizing a lacuna in the Civil Procedure Code for the precise situation (competing jurisdiction between a subordinate Court and a High/Chief Court on the original side), the Court held that the High Court may invoke its inherent jurisdiction under Section 151, Civil P.C., to do what Sections 22 and 23 would do in other contexts. The inherent power could be used where a plaintiff's choice of forum disregards convenience, is made for an ulterior motive, or is an abuse of the plaintiff's role as dominus litis.
Applying this framework to the facts, the Court accepted defendants' allegations that (a) all parties resided in Oudh, (b) nearly the entire estate in issue lay in Oudh, and (c) most relevant witnesses would be from Oudh. Although the plaintiff claimed material witnesses might come from various places (including Nepal, Benares, Allahabad, Rajputana and England), even accepting that, the Court found that none of plaintiff's assertions established that Aligarh would be more convenient; indeed, for many witnesses Lucknow would be at least as convenient. The Court also preferred trial by a Judge of the Chief Court familiar with the Oudh Estates Act over trial by a Subordinate Judge less familiar with those local statutory provisions.
The Court rejected insinuatory allegations made in a paragraph of the plaintiff's affidavit (ordering deletion or substantiation) and observed that, after deletion, the affidavit failed to disclose circumstances justifying the choice of Aligarh. On the materials before it, the Court found the balance of convenience overwhelmingly in favour of trial on the original side of the Chief Court of Oudh and concluded that the plaintiff was motivated by an ulterior purpose in avoiding the Chief Court.
Holding and Implications
Holding: The applications under Section 23 were allowed and the Court held that the suit should be tried by the Chief Court of Oudh on the original side.
Direct consequences and orders:
- All proceedings before the Subordinate Judge of Aligarh were stayed.
- The plaintiff was permitted to apply to the Subordinate Judge of Aligarh for the return of his plaint so that he could present it before the Chief Court of Oudh.
- Costs were awarded as follows: the applicant Bhairon Singh was to have his costs from the plaintiff; the applicant Yuvraj Datt Singh was ordered to pay his own costs.
Broader implications (as stated by the Court):
- The Court held as a matter of law that Sections 22 and 23, Civil P.C., do not apply to cases where the question is whether a suit should be tried by a Court subordinate to a High Court or by the High/Chief Court on its original side.
- In the absence of a specific Code provision covering that situation, a High Court may, in a proper case, invoke its inherent power under Section 151, Civil P.C., to determine which of two Courts having jurisdiction should try the suit, particularly where a plaintiff's forum choice is an abuse of process or made for an ulterior motive.
The opinion confines its decision to the circumstances before the Court and bases the transfer on the application of the High Court's inherent jurisdiction and the balance of convenience; it does not purport to establish a broader statutory amendment but lays down the Court's view on the permissibility of using Section 151 in such cases.
1. These are two applications under Section 23, Civil P.C., made by Raja Yuvraj Datt Singh and Thakur Bhairon Singh respectively, who are defendants in a suit pendingin the Court of the Subordinate Judge, Aligarh. The suit was brought by the opposite party Madho Singh. The subject-matter of the suit is Oel Estate in, Oudh which belonged to Raja Krishna Dat Singh, who died on 15th December 1932, leaving him surviving his. widow Thakurain Anand Kunwar, who is also a defendant to. the suit, a son Thakur Tej Dut Singh and Yuvraj Singh, one of the applicants before us, who claims to be a son of Ram Dat Singh, a predeceased son of Raja Krishna Dat Singh, and to be entitled to succeed under a will alleged to have been executed by the late Eaja. It is not disputed that Tej Dat Singh is the legitimate son of Raja Krishna Dat Singh but there is controversy between the parties as to whether he is suffering from congenital idiocy.
2. The plaintiff Mad ho Singh claims to be an agnate several degrees removed from Raja Krishna Dat Singh and to be entitled to succeed to the estate on the allegation that Tej Dat Singh is excluded from inheritance owing to congenital idiocy, that Yuvraj Dutt Singh is not the legitimate son of Ram Dat Singh, a predeceased son of Krishna Dat Singh, and that the will set up by Yuvraj Dutt Singh and alleged to have been executed by Krishna Dut Singh does not, on a proper construction being placed upon it, confer a title upon him in respect of Oel Estate. It is further alleged by the plaintiff in his plaint that Raja Krishna Dat Singh was not of a sound disposing mind when he is said to have executed the will. As regards Thakurain Anand Kunwar, who in ordinary circumstances would exclude an agnate like the plaintiff, it is alleged by the latter that she relinquished all her rights in the estate of her deceased husband. The suit was instituted on 28th February 1933. No written statements were filed by the defendants before the present applications were made to this Court for the determination of proper forum for the trial of the suit as all the principal parties are residents of Oudh and the entire property in dispute, except a temple and 64 bighas of land which are situate in Aligarh, is in Oudh and within the jurisdiction of the Chief Court at Lucknow.
3. The application by Yuvraj Dutt Singh was not preceded by a notice to the plaintiff as contemplated by Section 22, Civil P.C. while that of Bhairon Singh (No. 190 of 1933) was made after a notice to the plaintiff intimating his intention to move this Court for determination as to which of the two Courts, namely, the Chief Court of Oudh on the original side or the subordinate Judge's Court at Aligarh, is the proper forum. A preliminary objection has been taken by the learned Advocate for the plaintiff opposite party that the application of Yuvraj Dutt Singh is not maintainable in view of the requirements of Section 22, Civil P.C. It is pointed out that, according to that section any defendant, after notice to the other parties, may at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any) shall determine in which of the several Courts having, jurisdiction the suit shall proceed.
4. Both the applications proceed on common grounds, and even if we give effect to the contention as against Yuvraj Datt Singh, the application of Bhairon Singh cannot fail, unless it is not maintainable on the merits or on some other ground. In these circumstances we do not consider it necessary to decide whether absence of notice contemplated by Section 22, Civil P.C. is fatal to the application. We proceed to determine the questions raised by both the applications on their merits. Before determining in which of the two Courts having jurisdiction the suit should proceed we would dispose of another objection to the maintainability of the applications taken by the learned advocate for the plaintiff opposite party. It is contended that as the Chief Court is not subordinate to any High Court Section 23 does not apply. The material part of Section 22 has been quoted above. Section 23 runs as follows:
1. Where the several Courts, having jurisdiction are subordinate to the same appellate Court an application under Section 22 shall be made to the appellate Court. 2. Where such Courts are subordinate to different appellate Courts, but to the same High Court, the application) shall be made to the said High Court. 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.
5. It is argued that Sections 22 and 23 contemplate only that class of cases in which the several Courts having jurisdiction to try the suit are subordinate to one or more than one "High Court", and that they do not provide for cases in which one of the Courts having jurisdiction to try the suit is a High Court on its original side. It may be conceded that the expression "High Court" in Section 23 includes the Chief Court of Oudh. Reliance is placed in support of this contention on several cases. In Pragji Soorji & Co. v. Kalu Mal Shori Mal & Co. A.I.R. 1924 Lah. 306 decided by a learned single Judge of the Lahore High Court it was held that Sections 22 and 23, Civil P.C. deal with cases where a party to a suit instituted in a Court subordinate to an appellate Court wishes to secure the transfer of the suit to another Court subordinate either to the same appellate Court or to the same High Court or to another High Court and that they do not provide for a case where transfer to the original side of a High Court from a Court subordinate to another High Court is desired. In that case the suit had been instituted in a Court subordinate to the Lahore High Court and one of the defendants applied that the plaintiff may be directed to institute it on the original side of the Bombay High Court which also had jurisdiction. Similarly it was held in Hindustan Assurance and Mutual Benefit Society Ltd. v. Mulraj A.I.R. 1915 Mad. 608 that Section 23, Civil P.C. does not apply where the Court in which the suit had been instituted was not a Court subordinate to a High Court. The same view appears to have been taken in Hyat Mohamed v. Mannu A.I.R. 1927 Cal. 290, in which, however, the precise point now raised was not considered. It was argued that a Judge sitting on the original side of the Calcutta High Court should be considered to be the presiding officer of a "District Court," and therefore subordinate to the High Court. This contention was repelled.
6. In the case before us the suit is triable on the original side of the Chief Court which was constituted by the Oudh Courts Act, 1925, Section 7 of which lays down that the "Chief Court" shall have jurisdiction to hear and determine any suit or original proceeding of which the value is not less than five lacs of rupees. It is not disputed that the value of the subject-matter of the suit in the present instance is much above rupees five lacs. It is to be observed that Section 7 confers jurisdiction to hear a suit of which the valuation exceeds five lacs on the Chief Court." Accordingly when a Judge of that Court tries an original suit, he is the Chief Court. The question is whether since an appeal lies from his decision to a Division Bench of the Chief Court under Section 12, Oudh Courts Act, he should be considered to be subordinate to such Bench which again represents the whole Court. It seems to us that Section 23, Civil P.C., proceeds on the assumption that every Court having jurisdiction to try an original civil suit is subordinate to some High Court or a Court having co-ordinate jurisdiction. At the same time it cannot in terms apply to a case in which one of several Courts having jurisdiction to try a suit is not "subordinate" to any High Court or a Court equivalent thereto. It may be contended that these sections contemplate subordination only so far that the decision of the Judge hearing an original suit is open to appeal to a higher tribunal, and that in this sense a Judge sitting on the original side of a High Court or of the Chief Court should be considered to be subordinate to the tribunal entitled to hear an appeal from his decisions. This argument involves the anomaly that the Chief Court or the High Court is subordinate to itself, as ex hypothesi a Judge sitting on the original side as much represents the Chief Court or the High Court as the Division Bench empowered to hear an appeal from his decision. We have been referred to V.F.R.M.E. Ramanathan Chetty v. V.E.R.M.N.R. Ramanathan Chetty A.I.R. 1923 Rang. 22, in which it was held that Section 23 read with Section 22 implies, where a case is triable by a Judge of the High Court on the original side, subordination in the sense that appeals lie to a Division Bench of the same High Court which is consequently empowered to bear an application under Section 22, Civil P.C. It was observed that even though the Court may not be a subordinate Court for administrative purposes, we are of opinion that the present application lies and we have jurisdiction to deal with it if a suitable case is made out for ordering a transfer.
7. The application for transfer was disposed of by a Division Bench which was entitled to hear an appeal from the decree of the Judge sitting on the original side. We have carefully read the judgment of the learned Judges and it seems to us that the basis of the decision is not so much the right interpretation of Sections 22 and 23 as the expediency of a Division Bench having the power to transfer a case pending before a Judge on the original side to some other Court having jurisdiction. Having carefully considered the language of Section 22 and 23, Civil P.C. and the authorities cited before us, we are of opinion that those sections do not apply to a case in which the question is whether a suit should be tried by a Court subordinate to a High Court or by a High Court or the Chief Court of Oudh. We think that a case like the one before us is not covered by any provision of the Civil Procedure Code specifically dealing with the question. At the same time it cannot be denied that cases may frequently occur in which it is necessary to determine which of the two Courts having jurisdiction should try a particular case, one of such Courts being a High Court or the Chief Court. It cannot be reasonably contended that a plaintiff making an improper choice of forum is immune from having his choice questioned even by the highest Court. We are clearly of opinion that in the absence of a rule of law applicable to a case of this kind the aid of Section 151 of the Civil P.C. can be invoked in a proper case and it is open to a High Court to exercise powers similar to those contemplated by Sections 22 and 23 Civil P.C. If it appears that the plaintiff has chosen a forum in utter disregard of the convenience of both parties, for some ulterior object, and in abuse of his position as dominus lites the High Court can, in the exercise of its inherent power, determine which of the two Courts having jurisdiction should try the suit.
8. In the case before us all the parties reside in Oudh. As already stated, the entire estate with the exception of a temple and a few bighas of land is situated in Oudh. According to the applicants before us, almost all the witnesses, who can ,give relevant evidence in the case, will be from Oudh. The plaintiff, opposite party has, however, controverted this fact in his affidavit and it is alleged on his behalf that a number of witnesses will be from Nepal, Benares, Allahabad, Rajputana and even England. It will be observed that even according to the plaintiff, no witness residing in the Aligarh district is likely to be examined. Assuming that the plaintiff is desirous of examining witnesses from the places mentioned above. It will be perfectly immaterial for him whether the suit is tried in Aligarh or in Lucknow. Indeed, it is probable that for witnesses coming from those places Luck-now will be a more convenient place. As regards witnesses residing in Oudh, and it is said on behalf of the defendants that most of the witnesses will be from Oudh, it will be decidedly more convenient for both the parties that their evidence should be taken in Oudh, Aligarh will be found to be more than two hundred miles from the residence of most of this class of witnesses and their attendance in Court cannot be enforced. Their evidence shall have to be taken on commission which will be highly undesirable. The trial of a suit of this nature by a learned Judge of the Chief Court will be more satisfactory than by a Subordinate Judge in this province who is less familiar with the working of Oudh Estates Act which presumably applies to the case. The affidavit filed on behalf of the plaintiff In reply to that of the defendants does not disclose facts justifying the inference that it will be more convenient to the plaintiff' or conducive to the ends of justice that the suit should be tried in Aligarh. Some insinuations were made in para. 7 of the affidavit in reference to the Chief Court. We considered the allegation to be improper and directed the plaintiff either to delete that paragraph or to make definite allegations. The plaintiff has wisely chosen the former alternative. The affidavit as it now stands does not disclose any circumstances which can justify the plaintiff's choice. On the materials before as we have no hesitation in accepting the defendant's view that the balance of convenience overwhelmingly lies in favour of the suit being tried on the original aide of the Chief Court and that the plaintiff is actuated by some ulterior motive in avoiding the Chief Court of Oudh. We may note that in taking action under Section 151 of the Civil P.C. the question whether the application of Yuvraj Dutt Singh is not maintainable for want of a previous notice to the plaintiff as required by Section 22, Civil P.C., becomes immaterial. The result is that these applications succeed. We hold that the suit should be tried by the Chief Court of Oudh on the original side. Accordingly we stay all proceedings before the Subordinate Judge of Aligarh. It will be open to the plaintiff to apply to the Subordinate Judge of Aligarh for the return of his plaint with a view to presenting it before the Chief Court of Oudh. The applicant Bhairon Singh will have his costs from the plaintiff opposite party. The applicant Yuvraj Datt Singh will pay his own costs.
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