M/s M.M. Bilaney and Company vs M/s Jamna Auto Industries

H.R. Sodhi, J.—This is a petition preferred by Messrs M.M. Bilaney and Company, a partnership firm, who are defendants in a suit filed at Jagadhri by the respondents Messrs Jamna Auto Industries, It is alleged that the petitioners are consultant engineers carrying on their business at Bombay and the respondents decided to have their services in order to expand their factory at Jagadhri. There was correspondence between the parties, as a result whereof the petitioners claimed that the terms and conditions of their appointment were settled, and they advanced an aggregate claim of Rs. 41,036/- with interest against the plaintiffs respondents. The plaintiffs on the other-hand wanted to the return of Rs. 7,500/- paid by them to the petitioners denying if there was any completed contract. It is not necessary for the purpose of this petition to go into the details of the pleadings of the parties and suffice it to mention that the plaintiffs instituted a suit on 17th May, 1987 for the recovery of the said amount of Rs. 7,500/- in the Court of the Subordinate Judge, First Class Jagadhri. Summons of the suit were served on the defendants petitioners and they filed a written statement. Issues in the suit ware settled on 5th February, 1938 The petitioners had also filed a suit for their claim against the respondents in the High Court of Bombay on 23rd August, 1967.

It is conceded by Mr. J.K. Hiraaaadiii, lsarned counsel for the petitioners, that they have taken an objection to the jurisdiction of the Court at Jagadhri in the written statement filed by them and an issue has also been struck to that effect. After the settlement of issues on 5th February, l96i, the petitioners filed the present Civil Miscellaneous petition No. 27-M of 1968 on 12th June, 1968 purporting to be under sections 22, 23 and 151 of the Code of Civil Procedure. In this petition, it has been prayed that the case at Jagadhari be transferred to the Bombay High Court so that both get consolidated and disposed of together. The plea raised is that there are common questions of fact and law arising in both the suits and that the Bombay suit is a more comprehensive one in which all the disputes raised between the parties can be conveniently settled. An argument of balance of convenience is also raised in favour of both the suits being tried at Bombay. The petitioners served a notice on the respondents as required u/s 22 of the CPC before making this petition.

I have heard Mr. J.K. Hiranandani, Learned Counsel for the petitioner and Mr. V. P. Gandhi, Learned Counsel for the respondents. A preliminary objection has been raised by Mr. Gandhi that no such petition for transfer as made in this Court, is competent since sections 22 and 23 of the Code do not apply to the circumstances of the present case. The contention is that the petitioners, who are defendants in the suit at Jagadhri, having raised an objection as to the jurisdiction of the Court thereby cannot at the same time, without getting a decision on that issue, approach this Court for transfer of the case. The other contention of Mr. Gandhi is that the petition is belated and not within the contemplation of sections 22 and 23 of the Code in as much as such a petition, if at all it could be made, should have been made before the settlement of issues. The provisions of sections 22 and 23 of the Code may here be reproduced with advantage and they are in the following 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 determined which of the several Courts having jurisdiction the suit shall proceed 23(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application u/s 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appelate 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.

A bare reading of these previsions of law makes it abundantly clear that the present petition is wholly misconceived. Section 22 can be attracted only whore a suit could lave been instituted in any one of two or mole Courts and has been instituted in one of such Courts, but where the plea of the defendants is that one Court has no jurisdiction it cannot be said that such a suit could be instituted in that Court. The trial Court at Jagadhri has yet to decide the question of its jurisdiction raised by the petitioners and if it is Ultimately held that that Court has no jurisdiction, no question of transferring the case to the Court at Bombay can possibly arise. It is only when both the suits are triable in either of the Courts that a petition, subject to other conditions being satisfied, can be made under sections 22 and 23 of the Code. The petitioners cannot take up inconsistent positions and blow both hot and cold together. The petition, therefore, merits dismissal on the short ground that the petitioners have taken up the plea of want of jurisdiction of the civil Court at Jagadhri. I am fortified in this view of law by a ease reported as the National Engineering Company, Karachi v. The Rattan Engineering Company, Lahore AIR 1923 Lah. 288 (2), where Abdul Qadir, J, observed that where the jurisdiction of one of the Courts is denied an application for transfer under sections 22 and 23 cannot lie. The same view has been taken by the Allahabad High Court in a case reported as Firm Babu Lal Girdhari Lal Vs. Seth Kotumal,

The petition suffers from another infirmity as well in as much as it is very belated. It is clearly stated in section 12 that such a petition must be made at the earliest possible opportunity and in all cases where issues are settled at or before such settlement. It will be noticed that the issues in the present case, as already stated, were framed on 5th February, 1868 and the petition for transfer was made almost after four months on 12th June, 1968, when 20th June, 1968 was the date fixed for evidence. It was rather to prevent the evidence being recorded that such a petition seems to have been made.

Mr. Hiranandani contends that the conditions for making a petition, as given in sections 22 and 23 of the Code, are only directory and not mandatory. It is a startling proposition submitted by the Learned Counsel, and he could not support it by any decided authority. Any such interpretation as suggested by the Learned Counsel will completely negative the object and scheme of these provisions of law. The legislature has laid down some conditions pre-requisite to the making of such a petition for transfer in most unequivocal terms and they are that-

The suit sought to be transferred is cognisable by either of the two Courts;

there must be notice given to the other party before a petition for transfer is moved; and

The petition for transfer must be made at the earliest possible opportunity and in all cases at or before the settlement of issues. Section 22 of the Code curtails the well recognised light of the plaintiff as an arbiter litis to choose his own forum and Courts are generally reluctant to interfere with such a right When the legislature has laid down certain conditions on the fulfilment of which alone this right of the plaintiff can be curtailed, it will be contrary to all well established canons of interpretation of statutes to hold that such conditions should be considered to be only directory and not mandatory. Any such interpretation will run counter to the intention of the legislature as to be seen in sections 22 and 23 of the Code. In a case reported as (Pandit) Shiv Datt and others v. Pandit Motiram and another AIR 1925 Lah 322 (1), Zafar Ali, J. dismissed an application for transfer made u/s 11 of the Code on the ground that such application had not been presented at the ear-list opportunity or before the settlement of issues. While reflecting the application, the learned Judge held that the language of section 22 of the Code was mandatory.

Mr. V. P. Gandhi, also relied on Dr. Rajnath Vs. L. Vidya Ram and Others, where an application made six months after the settlement of issues was dismissed it being held that the conditions given in section 22 were not complied with. In AIR 1925 175 (Lahore) where a similar matter came up for consideration, Broadway, J. held that the provisions of section 22 were mandatory and that application under this section must be made at the earlist opportunity and in a case where issues are settled at or before such settlement, is made.

It is also not possible to accept the contentions of Mr. Hiranandani that the liberal construction should be given and that the use of the word ''at'' suggests that the petition for transfer can be made ''at any time after the issues have been settled". I do not understand how the word ''at'' can mean ''at any time after the settlement of issues''. This interpretation is contrary to the ordinary and grammatical meaning of the word ''at''.

No other point was urged by the Learned Counsel for the petitioners. The preliminary objections raised by Mr. Gandi are full of force and must be accepted. The petition consequently fails and is dismissed with costs which I assess at Rs. 200/-

It my, however, be made clear that in this judgment I am giving no finding on the merits of the petition including the question of balance of convenience of the parties.