Niyogi, J.:— These two applications (M.C.C No. 183 of 1937 and M.C.C No. 15 of 1938) are made under Section 23 of the CPC, for transfer of two suits pending in the Court of the Third Subordinate Judge, Second Class, Nagpur, to some competent Court having jurisdiction to try them at Calcutta. The facts of these suits are identically similar. The plaintiffs are a firm by name “Raghunathdas Jagannath” and the defendant in one suit is a firm “Kanhaiyalal Daga” and that in the other suit is another firm “Motilal Radhakisan.” The firm of “Mathradass Girdhardass” is a common defendant in both the suits. While the defendant “Mathradass Girdhardass” reside and carry on business at Nagpur, the other defendants reside and carry on business at Calcutta. The firm of Mathradass Girdhardass drew in favour of the firm Raghunathdas Jagannath two hundis which were payable separately by the two defendant firms at Calcutta. On the allegation of the plaintiffs, the hundis were sent to one Ramballabh Sharma of Calcutta duly endorsed in his favour for presentment but the defendants at Calcutta so far from paying him made a show of payment to one “Sobharam Ladhuram,” a fictitious person, in whose favour the endorsement was forged. Thus, on the allegation of fraud and in the alter, native gross negligence the plaintiffs claimed a decree against each of the firms at Calcutta or alternatively against Mathradass Girdhardass at Nagpur.
2. These applications are strenuously op-posed by the plaintiff firm of Raghunathdas Jagannath. In 13 NLR 81 (1916) 3 AIR Nag 31 , 40 IC 393 , 13 NLR 81 which was followed in AIR 1924 Nag 152 (1924) 11 AIR Nag 152 , 75 IC 548 it was held that the High Court (as the late Court of the Judicial Commissioner), was in view of Section 24 of the General Clauses Act (10 of 1897) has no jurisdiction to order transfer of a suit to any Court subordinate to some other High Court or to another High Court in British India. Stanyon, A.J.C in his learned and elaborate judgment in 13 NLR 81 (1916) 3 AIR Nag 31 , 40 IC 393 , 13 NLR 81 expressed the view that Section 24 of the CPC, was exhaustive of the judicial power to transfer suits, that S. 22 did not confer express power on the High Court to make the transfer. The learned Judge further observed:
The Legislature has reached an impasse or cul-de-sac, and it has added sub-s. (3) for whatever it may be worth. To my mind, its value, for the purposes of procedure, is nil.
3. With due deference to the learned Judge I do not see my way to subscribe to his reasoning. S. 24 gives a general power of transfer, whereas S. 22 gives the power in particular cases contemplated in Ss. 16 and 20. S. 22 must be read with S. 23 only and not in conjunction with S. 24. S. 22 postulates that the plaintiff has an option to institute his suit in any one or more Courts. That means that the plaintiff has a right under the law to choose any one of the several Courts for securing his remedy. S. 24 on the other hand refers to suits which can be instituted in one Court only. When the High Court transfers under S. 24 a suit from one Court to another it confers on the latter Court territorial jurisdiction which it does not otherwise possess. The view propounded by Stanyon, A.J.C in 13 NLR 81 (1916) 3 AIR Nag 31 , 40 IC 393 , 13 NLR 81 in respect of applications under sub-s. 3 of S. 23 cannot validly be applied to applications made under sub-ss. 1 and 2 of that Section. The position may be elucidated by two illustrations, (1) a suit may be instituted in the Court in Saoner Tahsil and the Court in Katol Tahsil, both of which are subordinate to the District Judge, or (2) it may be instituted in the Court in Wardha district or in the Court in Nagpur district, both of which are sub-ordinate to the High Court, Nagpur. Applications for transfer in these cases will lie under sub-ss. 1 and 2 of S. 23 respectively in the District Judge's Court, Nagpur, and in the High Court, Nagpur. If according to Stanyon A.J.C, S. 22 does not empower the High Court to deal with applications under sub-s. 3 of S. 23, it must follow that it denies jurisdiction to the District Judge and the High Court also in respect of applications made under sub-ss. 1 and 2 respectively. It is evident that this line of reasoning leads to a conclusion that is startling and wholly untenable. The initial error, with due respect to Stanyon A.J.C, lies in the assumption that S. 24 alone gives power of, transfer and S. 22 is impotent without the and of S. 24. The “impasse or the cul-de-sac” conceived by the learned Judge arose because S. 22 was not regarded as giving the power of transfer. That Section expressly says:
Any defendant…. may… apply to have the suit transferred to another Court, and the Court…. shall determine in which of the several Courts having jurisdiction the suit shall proceed.
4. These words unmistakably indicate the power of the Court to transfer so as to render recourse to S. 24 unnecessary. If the Court is of opinion that the suit should more appropriately have been instituted in one out of several Courts, it has been given power to determine which particular Court shall proceed with the suit. Mere declaration is sufficient without any express order of transfer for the reason that the plaintiff has a right under the law to institute his suit in the other specified Court and that Court has jurisdiction to try it apart from any order of transfer. I am fortified in the View that I take by the decisions of other High Courts reported in 44 All 278, (1922) 9 AIR All 65 , 65 IC 782 , 14 All 278 , 20 ALJ 118 AIR 1923 Lah 383 (1923) 10 AIR Lah 383 , 72 IC 592 and 48 Cal 53. (1921) 8 AIR Cal 210 , 62 IC 115 , 48 Cal 53 In view of the importance of the question regarding the jurisdiction of the High Court, I am of opinion that it should be referred to a Bench for an authoritative pronouncement. The question is: “Has the High Court, as held in 13 NLR 81 (1916) 3 AIR Nag 31 , 40 IC 393 , 13 NLR 81 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?” The case is submitted to the Hon'ble the Chief Justice for necessary orders.
OPINION
Stone, C.J and Vivian Bose, J.:— 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 13 NLR 81 (1916) 3 AIR Nag 31 , 40 IC 393 , 13 NLR 81 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?
5. Before answering that question we wish to observe that in 13 NLR 81 (1916) 3 AIR Nag 31 , 40 IC 393 , 13 NLR 81 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 Code of Civil Procedure, that is to say Ss. 22, 23, 24 and 25. As we understand the matter, the purposes of those Sections are as follows: Ss. 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. Ss. 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 plain, tiff, 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 S. 24; the other by S. 25. The first category in-eludes 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. S. 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 S. 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.
6. Although the question put raises a variety of points the matter out of which this question has arisen is a matter falling with-in Ss. 22 and 23 and not within S. 24 or 25, and the circumstances are such that what we are concerned with is a transfer from a subordinate Court subordinate to one High Court to a subordinate Court subordinate to another High Court. In 13 NLR 81 (1916) 3 AIR Nag 31 , 40 IC 393 , 13 NLR 81 the facts were as above indicated: the learned Judge who was hearing the application for transfer was concerned with a case of transfer from a subordinate Court to a High Court. That case was followed in AIR 1924 Nag 152 (1924) 11 AIR Nag 152 , 75 IC 548 which however was not a case falling within Ss. 22 and 23 but one falling within S. 24. That is to say, it was not a case where a plaintiff having choice of Court A or B had proceeded in Court A and his opponent, the defendant, had applied to have it transferred to Court B. It was a case in which the plaintiff had a right to bring his suit only in one Court prima facie and an effort was being made to get it into another Court.
7. In our opinion in cases to which Ss. 22 and 23 apply the power to transfer is conferred by S. 22 and the forum to which the necessary application has to be mafia is provided by S. 23. It has been argued before us on the strength of 5 All 60 (1882) 5 All 60 , 1882 AWN 164 that the Court has only such powers as are eta ferred upon it by the Civil Procedure Cede, in this matter at any rate, that the powers 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 S. 24 and to the Governor-General in Council or the Provincial Government in S. 25 but gives no power at all under Ss. 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 5 All 60, (1882) 5 All 60 , 1882 AWN 164 which we observe from Mr. Desai's Point-noted Index of Cases is said to fee followed in 44 All 278; (1922) 9 AIR All 65 , 65 IC 782 , 14 All 278 , 20 ALJ 118 that was a case which arose under the old Code. It decided that under the old Code there was no powers to transfer conferred at all. In 44 All 278 (1922) 9 AIR All 65 , 65 IC 782 , 14 All 278 , 20 ALJ 118 the Case was, in fact, transferred as although the head-note shows that 5 All 60 (1922) 9 AIR All 65 , 65 IC 782 , 14 All 278 , 20 ALJ 118 was followed it is reasonably plain from the result and from pp. 279 and 280 that it was not. Since 5 All 60 (1882) 5 All 60 , 1882 AWN 164 substantial changes have been made in the Code. Under the old Code in cases similar to those now covered by Ss. 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. This the Court was given by S. 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 the was dropped, according to Sir Dinshab Mulla's notes to Section 22 of the CPC, Edn. 10, is because the powers of transfer in Ss. 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.
8. At the moment we are concerned with the argument that the Court has only these powers conferred upon it by the Code and the power to transfer is not in express words conferred except in S. 24. In so far as the marginal note can be referred to for the purposes of construction it is to be observed that the marginal note to S. 22 is as follows: “Power to transfer suits which may be instituted in more than one Court.” Although we place no reliance on this in arriving at the conclusion we do observe that it tends in the same direction. The argument that no power to transfer is conferred by S. 22 is founded on the wording of the last two lines of the Section because what the Court is there directed to do is to “determine in which of the several Courts having jurisdiction the suit shall proceed.” The argument runs thus: If there are two Courts A and B and the suit is in A and the defendant applies for a transfer to B the Court that hears that application disposes of it by saying—“We; think it ought to proceed in B” and that is the end of the matter. It is still in A because it is not transferred to B. The Court has merely expressed a pious opinion or shown its preference as to tribunal.
9. That, in our opinion, is contrary to the true construction of S. 22 because the words above quoted are merely the terminal words of that Section which provides, in certain circumstances mentioned, for power in the defendant to “apply to have the suit transferred to another Court.” That application is disposed of by the Court to which it is made determining which of the Courts the suit shall proceed in, and we think, on the true construction, when it decides that the suit shall proceed in a Court other than that in which the plaintiff has proceeded hitherto its order amounts to a transfer of the proceedings from that Court to the other Court. This is made the plainer when one looks at S. 23 which is dealing with the various Courts to which the application for this transfer or, if the argument pressed before us is sound, expression of opinion, is to be made. We have already indicated the various Courts. The material sub-section for our present purpose is sub-s. (3) because this is a case where the alternative Courts as to one is in one High Court's jurisdiction, as to another in another High Court's jurisdiction. Sub-s. 3 provides:
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.
10. The suit is brought in a Court subordinate to the High Court of Nagpur. The transfer is sought to a Court subordinate to the High Court of Calcutta. The application has been made to this High Court, and we have very little difficulty in answering the question referred to us in the negative. That is to say the High Court has jurisdiction to transfer a suit pending in a Court subordinate to it to a Court subordinate to another High Court. That leaves outstanding the other branch of the question put as to whether the High Court has jurisdiction to transfer a suit pending in a Court subordinate to it to a High Court. That is a much more debatable question. It would appear to be a case omitted from S. 23. It is also, we observe, a hypothetical case which does not arise on the facts. Naturally, we have accordingly not been pressed, as much as we should have been pressed had it been necessary, to decide this point one way or the other for the purposes of the present case and we feel it would be better to answer that question when it arises on the facts of the case to be disposed of. We would observe, however, that in two cases, one a Full Bench decision of the Rangoon High Court and the other a Bench decision of the Allahabad High Court, 12 Rang 548 (1934) 21 AIR Rang 265 , 151 IC 573 , 12 Rang 548 (FB) and 56 All 201, (1934) 21 AIR All 14 , 147 IC 513 , 56 All 201 , 1933 ALJ 1507 respectively, even in such a case, a transfer has been ordered, the Court proceeding under its inherent powers. On the other hand, in 69 IC 772 (1924) 11 AIR Lah 306 , 69 IC 772 the Court declined to transfer to a High Court from a Court subordinate to a High Court for reasons similar to those to be found in 13 NLR 81. (1916) 3 AIR Nag 31 , 40 IC 393 , 13 NLR 81 The reference is answered accordingly.
(After the reference had been answered by the Division Bench, the case went before Niyogi, J.)
Niyogi, J.:— The facts are already stated in my order, dated 8th October 1938 whereby the question of law as to the High Court's power to transfer was referred to the Division Bench. It has recorded its opinion against the view taken in 13 NLR 81 (1916) 3 AIR Nag 31 , 40 IC 393 , 13 NLR 81 which must therefore be understood to have been overruled. It is now clear that the High Court has power to: order transfer as prayed for by the applicant. Now the question is whether it is expedient to order transfer of the suit. The grounds which were strenuously pressed in argument were that the real cause of action, viz. the actual payment on the hundi, arose at Calcutta, that the payment was made in accordance with the special mercantile custom obtaining in Calcutta, that the account books and other documents were at Calcutta and that the bulk of the important witnesses were residents of Calcutta and that it would be highly inconvenient for the defendant to conduct his defence properly at Nagpur and make it intelligible to the Court. The convenience of the parties is indeed a factor which enters into consideration, but it is obvious that the convenience of both parties have to be weighed and the matter must ultimately turn on the balance of convenience.
11. It must in the first instance be observed that the plaintiff is the dominus litis and it cannot and has not been denied that he had right to institute his suit in Nagpur. It must therefore be seen whether the considerations of convenience are so overwhelming on the side of the defendant as to override the claims of right. That the cause of action partly occurred at Calcutta is a neutral factor and it must therefore be left out of account. It may be that the mercantile custom at Calcutta differs in some respects from that obtaining in Nagpur or elsewhere, but there is nothing in it so abstruse or mysterious as to make it incomprehensible to any but a Calcutta Judge. As to the production of the account books in Court, I do not apprehend any difficulty. The defendant has only to file copies of extracts from his khata and roz and prove the entries in Court. That is more or less a formal proof. The hundi registration book may be required to be filed. But the account books and that book are not so bulky as to cause undue difficulty in transporting them to Nagpur. The oral evidence will no doubt have to be recorded through a commissioner but there is nothing in the nature of the witnesses or their evidence to invest their demeanour with importance. The observations made in (1935) AC 243 (1935) AC 243 , 104 LJKB 304 , 152 LT 563 , 79 SJ 179 , 51 TLR 289 have no bearing on this case. On the facts of this case I am unable to persuade myself that any extraordinary hardship or grave inconvenience is likely to accrue to the defendant to the extent of hampering him in his defence. On the other hand the trial at Calcutta is calculated to involve the plaintiff in heavier expense. In the course of the argument reference was made to numerous decided cases which I have perused care-fully. They can render but little assistance when the matter has to be determined on the peculiar facts of this particular case. The application for transfer is dismissed with costs. Pleader's fees Rs. 25.
D.S/R.K
12. Application dismissed.