1. This is a reference by the District Judge of Patna under Section 23 of the Code of Civil Procedure of 1882, for transfer of a suit now pending in the Court of the Subordinate Judge of Patna to the Court of the Subordinate Judge at Monghyr. The circumstances under which the application has been made may be briefly stated. One Nawab Subdar Hossein Khan, a wealthy zemindar of Hasnabad, in the district of Monghyr, died on the 7th August 1905, and left considerable landed properties in the districts of Monghyr, Gya and Patna. Musammat Kulsoom who claims to be the sister of the father of Subdar and who is the plaintiff in the suit instituted in the Court of the Subordinate Judge at Patna, has sued for recovery of possession of the properties on the basis of title by inheritance. The defendant in that suit, Musammat Umatul Mehdi who claims to be the widow of Subdar and the daughter of his maternal uncle, has instituted a suit in the Court of the Subordinate Judge at Monghyr, for recovery of five lakhs of rupees and twenty-five gold mohurs as her dower.. The suit in the Patna Court was instituted by Kulsoom on the 1st May 190B. The written statement was filed on the 7th August and issues were settled on the day following. Meanwhile on the 4th August 1908, Umatul, the defendant in that suit, had commenced an action in the Court of the Subordinate Judge at Monhgyr. In the Patna Court, documents were filed on behalf of the plaintiff as well as the defendant on the 21st and 24th August respectively, and summonses were issued at the instance of the plaintiff upon her witnesses on the 3rd November. In the Court of the Subordinate Judge at Monghyr, issues were framed on the 26th November. It appears that Kulsoom, the, the plaintiff in the Patna suit, applied on the 10th December to the Subordinate Judge at Monghyr to stay the hearing of the suit pending in his Court till the disposal of the suit in the Patna Court. Five days later, Umatul, the plaintiff in the Monghyr suit, applied to the District Judge of Patna for transfer of the Patna suit to the Court of the Subordinate Judge at Monghyr. The District Judge has transmitted the application to the Court under Section 23 of the Code, and we have heard at length all that the parties had to urge in support of the application and in opposition to it.
2. The learned Counsel for Kulsoom, the plaintiff in the Patna Court, has argued that Section 23 of the Code of 1882 has no application and that the reference is not in order. In our opinion there is no foundation for this contention. Section 23 provides as follows: 'Where such Courts 'that is Courts in which a suit may be instituted are subordinate to different appellate Courts, but are subordinate to the same High Court, any defendant, after giving notice in writing to the other parties of his intention to apply to the High Court to transfer the suit to another Court having jurisdiction, may apply accordingly. If the suit is brought in any Court subordinate to a District Court, the application together with the objections if any, filed by the other parties, shall be submitted through the District Court to which such Court is subordinate. The High Court may after considering the objections, if any, of the other parties determine in which of the Courts having jurisdiction the suit shall proceed.' It has been argued that in order to determine whether the Court in which the suit has been brought is or is not subordinate to the District Court, regard ought to be had to the circumstances of the particular litigation, and that if an appeal lies from the decree in that suit to the High Court and not to the District Court, the District Court cannot be regarded as the Court to which the Court of the Subordinate Judge is subordinate for the purpose of Section 23. A reference to the provisions of Section 2 of the Code of Civil Procedure and Section 39 of the Bengal Civil Courts Act, however, shows conclusively that there is no force in this contention. Section 2 of the Code of Civil Procedure provides that every Court of a grade inferior to that of a District Court shall be deemed to be subordinate to the High Court and the District Court. Section 39 of the Bengal Civil Courts Act provides that ' for the purposes of the Code of Civil Procedure the presiding officer of a Court, subject to the administrative control of the District Judge, shall be deemed to be of a grade inferior to that of the Court of the District Judge.' Section 9 of the same Act further provides that 'subject to the superintendence of the High Court, the District Judge shall have administrative control over all the Civil Courts under the Act within the local limits of its jurisdiction.' These legislative provisions taken together make it reasonably clear that the Court of the Subordinate Judge is subordinate to the District Court for the purposes of Section 23, no matter what the forum of appeal may be in the particular case for the transfer of which the application is made. We must hold, therefore, that the reference is in order. It is worthy of note, however, that even if the reference were not in order, the application for transfer which is addressed to this Court, might be treated as made directly under Section 25 of the Code, and there would be no substance in the objection that it was irregular because it had been transmitted through the District Court.
3. We shall next consider the merits of the application. It is contended in support of the prayer for transfer that a considerable portion of the subject-matter of litigation is situated within the jurisdiction of the Court of the Subordinate Judge at Monghyr; that a large number of witnesses reside there; that the marriage of Kulsoom with Subdar took place in that district; that the parties are at present residents within the jurisdiction of the Monghyr Court and that the suit in that Court could not have been instituted in any other Court, whereas the suit instituted in the Patna Court might as well have been instituted in the Court of the Subordinate Judge at Monghyr. In opposition to the application for transfer, it is pointed out that the suit in Patna Court was instituted first, and that the suit in the Monghyr Court was not instituted till the issues had been framed in the Patna suit and summonses had been issued upon the witnesses for the plaintiff in that Court. Stress is further laid upon the circumstance that the application for transfer was made only after Kulsoom had applied to the Monghyr Court for stay of proceedings in the suit pending there and it is further suggested that possibly the Monghyr suit was instituted solely with a view to get the Patna suit transferred to the Court of the Subordinate Judge at Monghyr. Our attention is also invited to the fact that the witnesses reside not in the city of Monghyr, but within the District of Monghyr and that the place where the parties reside is about 40 miles from Monghyr by rail and about 50 miles from Patna. Upon a consideration of all the circumstances, we are of opinion that a case has not been made out for transfer of the suit from Patna Court to the Monghyr Court. There can be no question, in our opinion, that it was competent to Kulsoom, the plaintiff in the Patna Court, to institute her suit there. There can be no dispute also that no order for transfer ought to be made unless we are satisfied that such an order is absolutely necessary in the interest of justice. We do not suggest that our judicial discretion can be fettered by any hard and fast rule but the object which we have to keep in view is to determine where the balance of convenience lies. The jurisdiction of a superior Court to transfer a suit from one Subordinate Court to another ought to be, in the words of Lord Justice Gallon in Mc Henry v. Lewis (1882) 22 Ch. D. 406 exercised with extreme caution. The choice of forum given to a plaintiff by the Legislature ought not to be lightly interfered with, and the Court will not transfer a suit properly laid, except upon proof of special circumstances. A well-recognised ground exists where the convenience of necessary witnesses and the ends of justice will be promoted by the transfer, but the ground alleged must be clearly established. Now in the case before us it is not necessary to hold that the suit instituted by Umatul in the Court of the Subordinate Judge at Monghyr is not bona fide; weighty reasons on the other hand have been advanced by her learned Vakil, to show that the institution of the suit was essential to enforce the alleged claim of dower. We shall assume, therefore, that the suit is bona fide; yet the question remains, whether the balance of convenience is really in favour of her application for transfer. There can be no question that the application has been considerably delayed. Under Section 25 of the Code we have, no doubts ample power to make the order even after the issues have been framed; but satisfactory reasons ought to be given in explanation of the delay. It is further admitted that the previous litigation between the parties which arose out of proceedings under the Land Registration Act and which ultimately came up to this Court, Umatul Mehdi v. Kulsum 35 C. 120 : 8 C.L.J. 245 : 12 C.W.N. 16 took place in the Patna Court. With reference to this fact it has been contended with considerable force and manifest reason that so far as Kulsoom, the plaintiff in the Patna Court, is concerned, her pleaders at any rate are quite familiar with the history and circumstances of the litigation, and as she has already incurred considerable cost at Patna, if she is how driven to engage the services of legal advisers in Monghyr, the Court would needlessly inflict upon her the hardship of additional expense. At the same time so far as the witnesses are concerned we are not satisfied that they cannot appear in the Patna Court with as much convenience as in the Monghyr Court. On the whole, therefore, when we take into consideration the fact that there has been considerable delay not satisfactorily explained, along with the fact that the balance of convenience is not conclusively made out in favour of the application for transfer, we must hold that the application ought to be refused. Kulsoom, the plaintiff in the Patna Court, is entitled to the costs of this proceeding. We assess the hearing fee in this Court at three gold mohurs.
4. The parties have agreed that the suit in the Monghyr Court should be transferred to the Patna Court, and heard along with the suit in the latter Court. Under Section 24 of the Code of Civil Procedure of 1908 we make the order for transfer accordingly.