Abu Bakar Abdul Rahiman & Co. v. Rambux

1. The plaintiff Rambux carries on business at Khamgaon in West Berar. The defendants are a firm carrying on business in Bombay, where the defendants constituting the firm personally reside. The defendants have acted as commission agents of the plaintiff, and it is said that the business was this that the plaintiff was to buy cotton, have it ginned and pressed into bales at Khamgaon, and then consign it to the defendants who were to sell it for him in Bombay. According to the defendants, who are the applicants before me, this business, carried on partly in Khamgaon and partly in Bombay, resulted in Rs. 4,123-4-3 being due to them by Rambux in Sambat 1970 (1913-1914 A.D) and to a balance of Rs. 41-2-9 against him in Sambat 1971 (1914-1915 A.D).

2. On the 13th July, 1916, Rambux filed a suit against the defendants in the Court of the Subordinate Judge of Khamgaon, claiming Rs. 5000 as due to him. The defendants have raised a plea that the Subordinate Judge has no jurisdiction and the plea has been disallowed. Before me it is conceded that the Khamgaon Court has jurisdiction over the plaintiff's suit, but an application is now made with the object of obtaining transfer of the suit to the Bombay High Court on its original side. The application purports to be made under Section 23(3) of the CPC, 1908, as applied to Berar. Having heard the applicants, I am of opinion—

(1) that I have no power to direct any transfer of a suit to any Court not subordinate to this Court:

(2) that even though I may have power to declare whether or not the suit in this case shall proceed in the Court of the Subordinate Judge of Khamgaon, I have no power to compel its institution in any Court beyond my jurisdiction: and

(3) that no sufficient ground is made out for a declaration that the suit shall not proceed in the Khamgaon Court.

3. Ss. 22 and 23 of the above Code lay down the procedure to be followed where a suit may be instituted in more than one Court, and the power of the Court to which application is made is limited to a power to “determine in which of the several Courts having jurisdiction the suit shall proceed.” S. 24 of the same Code is exhaustive of the judicial power to transfer suits, and no Court is given jurisdiction to transfer any suit from one Court to another, unless both such Courts are subordinate to it. Ss. 25 deals with a special case of transfer by the Governor-General in Council with which we have no concern here, since this is not the case of a suit “pending in a High Court presided over by a single Judge.” Thus it is clear that no order could be made by this Court directing the transfer of the suit from the Court of the Subordinate Judge of Khamgaon to any Court in the Presidency of Bombay, and least of all to the Bombay High Court itself.

4. Then, as regards the power under Ss. 22 and 23(3), the law seems to be singularly inapt and inconclusive. The marginal heading to S. 22 describes it as giving a power to transfer suits which may be instituted in more than one Court, but this is clearly misleading in respect of cases where the several Courts are not subordinate to the same jurisdiction. It seems expedient, therefore, to reproduce S. 22, and to consider it in the light of the connected S. 23. S. 22 is in these terms:—

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

5. It will be seen that no express power is given in this section to make the transfer. The Court in which application is made is required to select one of the several Courts having jurisdiction. But when, as a result of that selection falling on a Court other than that in which the suit has been instituted, a transfer becomes necessary, then the Court must proceed under S. 24.

6. S. 23 indicates under three heads the Court to which an application under S. 22 is to be made. (1) Where the several Courts are Subordinate to the same Appellate Court, the application goes before the latter; (2) where the several Courts are subordinate to different Appellate Courts but to the same High Court, the application must go to the High Court; and (3) where the several Courts having jurisdiction over the suit are subordinate to different High Courts, the application must be made to the High Court having authority over the Court in which the suit has been instituted. In the first two of these cases the Court empowered to decide under S. 22 also has jurisdiction to transfer under S. 24. But in the third case there is no power of transfer, and the question is whether S. 22, under which the application to be made is one for transfer, can be interpreted to mean that, in a case like the present, the Court to which the application is made, being powerless to transfer, may nevertheless direct that the plaint be returned to the plaintiff for presentation to some Court under another provincial jurisdiction. No doubt that was a course considered possible under S. 22 of the 1882 Code (between which and the present S. 22 the difference is purely syntactical) by Straight and Mahmood. JJ., in Tula Ram v. Harjiwan Das (1883) 5 All. 60. I do not think that the law is made any clearer by the fact that what was once a separate (S. 24 in the 1882 Code) has now been made a part of S. 23 of the present Code, Indeed, it has only added to the confusion: for S. 23 deals with applications for transfer under S. 22, and, in connection with sub-S. (3), such an application becomes an absurdity, since no High Court can order a transfer into the jurisdiction of another High Court. The device, under Act VIII of 1859, by which such transfers were made subject to an agreement among the High Courts concerned, was not reproduced in the Codes of 1877 and 1882. Apparently there are reasons why a power of transfer, similar to that given to the Governor-General in Council under Section 527 of the Cr PC, 1898, should not be incorporated in the Code of Civil Procedure, except to the very limited extent enacted by S. 24, which applies only to cases pending in a High Court presided over by a single Judge, e.g, the Court of the Judicial Commissioner of the N.W.F Province, or of Chota Nagpur. The result is that, in dealing with transfers of suits, 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.

7. To transfer a suit from one Court to another is something entirely different in character and legal effect from making an order for the return of a plaint by one Court with a view to its being presented in another. A transfer can never raise a question of limitation; but a suit is only duly instituted so as to stop the running, of time when the plaint is presented to the proper Court. Suppose a suit is instituted in a Central Provinces or Berar Court on the last day allowed by the Limitation Act, and, on an application made by the defendant, a decision is made by this Court that such suit should proceed in a Court in Bombay which also has jurisdiction over it. In the absence of a power of transfer this Court then orders that the plaint should be returned for presentation to the Bombay Court. When the plaint is presented to that Court the suit will be time-barred, and it does not seem right that the plaintiff should be left to the chance of saving time under Section 14 of the Limitation Act. Moreover, the decision provided for by S. 22 is a decision for the immediate purpose of a transfer for which the defendant applies under that section. Where the Court has no power to transfer it seems logical to argue that it has no power to decide, notwithstanding that sub-S. (3) of S. 23 permits the making of a useless application. A decision by me that the suit now in question is a suit within the Original Civil Jurisdiction of the Bombay High Court and shall proceed in that Court would not bind that tribunal in any way. It may be that by implication I have power also to decide that the suit shall not proceed in the Khamgaon Court. But, while such a decision would be intelligible where by transfer, I could find a substitute Court for the plaintiff, it becomes arbitrary and unjust where I merely refuse him access to a jurisdiction to which he is legally entitled to resort, and give him nothing in return for it. I, therefore, hold that I am not empowered under Section 22 of the CPC to order that the suit shall proceed in the Bombay High Court: and I seriously doubt whether I am competent to decide that the suit shall not proceed in the Khamgaon Court which has jurisdiction over it, unless I can send the suit for trial by some other competent Court subordinate to this Court.

8. Finally, supposing that I am competent to close the doors of the Khamgaon Court to the plaintiff after evicting him therefrom without opening the doors of another Court for him, I have to see whether the defendants have made out a case to justify me in doing so. The grounds advanced are these:—

(1) that the plaintiff has sued on the dealings of Sambat 1971 without bringing into account a cross-claim for over Rs. 4,000 which the defendants have against him in respect of the dealings of Sambat 1970;

(2) that the dispute between the parties arises mainly out of that part of the business which was transacted in Bombay;

(3) that a settlement of accounts once took place in Bombay;

(4) that the defendants' books of account and witnesses are in Bombay;

(5) that the trial can be held more conveniently in Bombay.

9. I can find no reason here for taking the very exceptional course asked for, even though, had transfer been permissible, I might, subject to the contentions of the plaintiff, have been disposed to order a transfer. Books can be brought to Khamgaon, witnesses can be examined on commission, and there is no reason for preferring the convenience of the defendants to that of the plaintiff.

10. For the above reasons the application is dismissed without notice to the other side. The suit will proceed in the Khamgaon Court.

P.N/R.K

11. Application dismissed.