Sm. Survomongola Debi and others vs Harendra Lall Roy

Amir Ali, J.—The plaintiff himself has filed no affidavit of his own. Two affidavits have been used on his behalf, one made by his attorney, Kamini Kumar Guha, jointly with Hara Kumar Chackravarty, Kamini Kumar''s clerk, the other by Raj Chandra Bose, a Gomastah of the plaintiff. Now clause 13 of the Letters Patent, runs thus :--"And we do further ordain that the said High Court of Judicature at Fort (sic) in Bengal, shall have power to remove and to try and determine as a Court of Extraordinary Original Jurisdiction, any suit being or falling with the jurisdiction of any Court whether within or without the Bengal Division of the Presidency of Fort William, subject to its superintendence, when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing, being recorded on the proceedings of the said High Court." A number of cases dealt with under the clause, were referred to in the course of argument. I have also referred to a case decided in 1866. There can be no doubt that this Court has ample power to remove cases from any Court subject to its superintendence for trial, in the exercise of its Extraordinary jurisdiction, whenever it thinks fit to do so for purposes of justice; that purpose is to be determined on various considerations most of which are discussed in the cases to which reference has been made. For example, the desirability or necessity to exercise the jurisdiction may arise in consequence of the importance or difficulty of the questions involved, or it may arise in consequence of the balance of convenience or cheapness of the trial. I do not mean to say these considerations are exhaustive for the exercise of the jurisdiction under clause 13, but these are circumstances under which undoubtedly this Court has exercised the power. In the matter of Kapil Nath Sahai Deo v. Government 10 B.L.R. 168 the conduct of the judge was taken into consideration in directing a transfer. The grounds, which the defendant puts forward in asking for a transfer may be stated shortly to be as follows:--

1st. She contends that the question involved in the suit are of a difficult and important character.

2ndly. She suggests that the witnesses, whom she intends to cite, live in Calcutta, and that it would be an extreme hardship to her either to go herself or take her witnesses to Dinajpur to be examined at the trial. I am giving very briefly the grounds which were discussed before me, as they are set out fully in the affidavit of the defendant. It is quite clear that the agreement upon which the suit is brought, was executed in Calcutta. It is also evident that the plaintiff resided and carries on business in Calcutta. In the 32nd paragraph of the defendant''s verified petition it is stated that the said Harendra Lall Roy is a rich money-lender of Hatkhola, having extensive business connections in the mofussil. There is no contradiction of that statement in the affidavits which have been filed on his behalf Then in the 34th paragraph it is said "all the persons who know of the transactions between the said Wooday Charan Sanyal and Harendra Lall Roy, and who will be likely to be called as witnesses by your petitioner, are residents of Calcutta or Bally and work in Calcutta." Again there is no contradiction. The joint affidavit of Kamini Kumar Guha and Hara Kumar Chakarvarti, so far as it goes, contradicts the defendant''s statements regarding the circumstances under which the deed was executed, the capacity of Wooday Charan Sanyal, and the knowledge of the defendant concerning the document, but I do not find any contradiction of the allegation that all the witnesses who are able to speak to the agreement are in Calcutta or its neighbourhood. Nor is there any contradiction in Raj Chander Bose''s affidavit. The defendant says her evidence would be material, and that it would be impossible for her to go to Dinajpur and take her witnesses, there, as the expense would be very heavy; and further that she would be unable to secure the attendance of many of them even if she could afford the expense.

There is no contradiction of the statement that she has not the means to afford the cost of a commission nor any suggestion that she can conveniently go to Dinajpur to give her evidence. Considering the fact that the defendant is a pardahnashin, I can understand the difficulty of her going to Dinajpur for the purpose of giving her evidence. There is not the faintest allegation on the part of the plaintiff that there are any witnesses at Dinajpur whom he will be obliged to bring down to Calcutta if the case were tried here.

Kamini Kumar Guha suggests in a weak sort of way that the defendant has the means of taking up counsel from here to Dinajpur. On this point he says as follows:--'' With reference to the statements contained in the 33rd paragraph of the said petition we say that we do not believe that the said petitioner is without means to take down counsel from Calcutta to Dinajpur in case it were necessary to do so which we do not believe it to be, &c."

The denial is of a weak character. I do not mean to say that inability on the part of the defendant to take counsel up to Dinajpur would be any ground for a transfer; what I find is that though her inability to take up counsel is denied in the way I have shown, her statement as to her want of means to go to Dinajpur or to take her witnesses there is not denied.

Raj Chundra Bose says in substance that if the case be removed to this Court, it would entail great hardship and loss on Harendra Lall Roy who has already paid an incurred liabilities for stamps and pleader''s fees to the amount of Rs. 4,500.

Beyond the matter of expense there is nothing to show what the hardship would be. I have nothing to do with the expense which the plaintiff has already incurred. If he wins, he will in all probability recover the cost of the stamps. It is said that the suit was brought in the Dinajpur Court inasmuch as the Collector of that District has been made a defendant. But the Collector is a merely formal party; his presence in the suit is owing to the fact that he holds in his hands the rents of the estate. The suit would have been brought in the Burdwan Court, where the former suit in respect of those very properties was instituted, and which would have been more convenient to the parties and the witnesses in the case. I think there is a good deal of force in Mr. Garth''s contention that the plaintiff has brought the suit in the most distant place he could, in order to throw every difficulty in the way of the defendants to defend the action. I was surprised to see the statement that the expense here will be greater than in the Mofussil. This is obviously contrary to ordinary experience. The matter therefore substantially comes back to this. This is a suit for the enforcement of a contract between Harendra Lall Roy and Wooday Charan Sanyal, by which he purported to assign a moiety of his share in the estate of Sreenath Sanyal to the plaintiff in consideration of being placed in funds for the prosecution of his claim.

Having regard to the statements which the defendant makes various questions would arise for determination, such as whether it was an extortionate or unconscionable bargain, assuming that it was entered into with full apprehension of its effect and purport. I do not wish to say more on this particular question than is absolutely necessary, but bearing in mind the decisions in 4 Ind. Appeals and 20 Ind. Appeals, it is clear that the question is important and difficult. Had the ground stood alone, I am not prepared to say the Court of the Sub-Judge would not be quite competent to deal whith it. But there are other circumstances which I must take into consideration. All the parties really interested in the suit reside either in Calcutta or in its immediate neighbourhood. So upon the affidavits do the witnesses, who are likely to attend to give their testimony. It is not suggested that any of the witnesses for the plaintiff are at Dinajpur. Again if the agreement cannot be supported in its entirety the plaintiff may only be entitled to so much as he has spent and an account would be necessary. It is not suggested that his accounts are at Dinajpur. The money was advanced here and the books are here. The defendant states it would be extremely difficult for her to go to Dinajpur. She states she has no means to go herself or to take her witnesses. Again the prayers for Injunction and Receiver render the case one eminently fit to be tried in this Court. The balance of convenience is manifestly in favour of its being heard in Calcutta, To insist upon its being tried in Dinajpur would, in my opinion, place insuperable difficulties in the way of the defendant to defend the suit. The other defendants leave the matter in the hands of the Court. For all the reasons I have given 1 think I ought to make the Rule absolute which I accordingly do. I reserve the costs of all parties.