1. The facts of this case are that the plaintiff Singhai Dalchand despatched 4 waggon loads of grain to Bombay through the defendant No. 1 (G.I.F Ry. Co.). This grain was sold by the plaintiff to a firm called Ganji Takarsi of Bombay; but as the hundis given by that firm were dishonored, the plaintiff wanted to stop the goods in transit. He wired to the Goods Superintendent, G.I.P Ry. Co., at Bombay, to withhold delivery, but 2 waggon loads had already been delivered and the remining 2 were delivered by the Bail way Company to the defendant No. 2, Topan Harji, to whom the goods had been sold or transferred by the firm of Ganji Takarsi. The plaintiff, therefore, brought a suit in the Court of the District Judge at Saugor to recover the price of the goods from the defendants.
2. The Railway Company pleaded that the Saugor Court had no jurisdiction as both the defendants reside in Bombay, and the cause of action arose there.
3. The defendant No. 2 moved the Court for a stay in order to enable him to apply for a transfer, and he now prays in the present application asking this Court to withdraw the suit or return the plaint to the plaintiff for presentation to the proper Court on the ground that the Saugor Court had no jurisdiction.
4. The contention of the applicant is that as the cause of action arose solely in Bombay, the case is exclusively triable there. I do not propose to go into the merits of the case at all because it is obvious that the present application cannot lie. The case is on all fours with Abu Bakar Abdul Rahiman & Co. v. Rambux. (1917) 13 N.L.R 81 , 40 I.C 393 This Court has no jurisdiction to direct a transfer from the Saugor Court to any Court in Bombay which is outside its jurisdiction. No Court can direct any transfer from one Court to another unless both Courts are subordinate to it. The same case lays down that even if a High Court is of opinion that a suit, which has been duly instituted in a Court subordinate to should proceed in another Court beyond the territorial limits of the jurisdiction of such High Court, it is doubtful whether it is competent to direct the former Court to return the plaint for presentation to the latter. Assuming that it is so competent, the High Court should not adopt such a course save upon most exceptional grounds.
5. It is admitted by the learned pleader for the applicant that he cannot ask for withdrawal of the suit since under section 24 of the CPC the withdrawal must be followed either by trial by itself of the case by the Court withdrawing it or by a transfer to some Court subordinate to it, and if the Saugor Court has no jurisdiction then neither this Court or any other Court in the Province can have any.
6. As regards the making of an order for the return of the plaint I adopt the reasoning of Stanyon, A.J.C, in the case quoted above, in 13 N.L.R. Even supposing that it was competent to this Court to decide that the plaint in this case should be returned for presentation to the Court having jurisdiction in Bombay, the exceptional grounds referred to in that case do not exist here. The jurisdiction of the Saugor Court has already been challenged by the defendant No. 1 and will naturally be challenged by the defendant: No. 2. An issue will certainly be framed, and if the Court holds that it has no jurisdiction the plaint will be returned to the plaintiff for presentation to the proper Court. If the Court bolds that it has jurisdiction, that is a matter which will be considered in appeal. The defendant, therefore, has an opportunity of challenging the jurisdiction of the Court.
7. The present application is clearly unsustainable and must be dismissed. The applicant will pay the costs of the non-applicant No. 1 (plaintiff). The non-applicant No. 2 the Railway Company who support the application, will bear their own costs.
8. Application dismissed.