Aditya Nath Jha Vs. Indu Shekhar Jha and ors. - Court Judgment

Excerpt:
(a) civil procedure code, 1908 - sections 22 to 24 - transfer of case--partition suit filed in the court at ranchi--application for transfer from ranch! to saharsa--ancestral home for both the parties within the district of saharsa, almost all the properties under partition situated there, majority of parties residing there, cause of action for filing suit arose in saharsa, etc--held--partition suit pending in the court of subordinate judge, ranchi, was directed to be transferred to the court within the jurisdiction of district judge, saharsa.(b) civil procedure code, 1908 - sections 22, 23, 24 - transfer of suit from one court to another--in what case, suit can be transferred--convenience of parties concerned was also one of the criteria and a valid ground for the purpose of transfer of the suit i.e. balance of convenience. - - 5. it is true that plaintiff has a right to select his own forum and his right should not be interfered with except on a very strong ground and the onus to establish sufficient ground for transfer lies heavily upon the party seeking such transfer and unless it is found that in oheesing a particular court, the plaintiff has been acting malafide with an object of harassing the defendant, the court should be slow in changing the forum compelling the plaintiff to go to another court and thereby expose him to unnecessary expense of litigation. 7. it is well settled that the search should be for justice and the court must be satisfied that justice would more likely be done between the parties by refusing to allow the plaintiff to continue his suit in the forum of his choice. 10. as a whole, having regard to the attitude adopted by the plaintiff, i come to the conclusion that a very strong ground has been made out on the basis of the convenience to the parties concerned to order transfer of the suit from ranchi to saharsa. gurusharan sharma, j.1. the plaintiffs filed a suit for partition of their half-share along with the defendants no. 7 and 8 against other defendants in the court of the subordinate judge, ranchi. the defendant no. 3 has filed this application under sections 22 to 24 of the code of civil procedure, (herein after referred to as 'the code') for transfer the said partition suit from ranchi to sharsa.2. a copy of the plaint of the suit has been annexed to this application. from perusal of the plaint, it appears that chandra shekhar jha and indu shekhar jha are sons of late raghunath jha of village satarwar, p.s. mahishi, district saharsa. the said indu shekhar jha and his two sons are plaintiffs and his two other sons are defendants no. 7 and 8 and chandra shekhar jha and his sons are defendants 1 to 6. the other defendants no. 9 to 17 are the purchasers. both immovable and movable properties under partition have been detailed in schedules b to h of the plaint. the properties, except these in schedule and item i in schedule- f, at ranchi and patna respectively, are at saharsa.3. according to defendant no. 3, the ancestral home of the parties is in saharsa district and majority of the individual parties reside there. the greater part of the properties under partition are situated in the said district and only a small piece of land standing in the names of plaintiff no. 2 and defendant no. 3, representing the aforesaid two branches is at ranchi. as such, the plaintiffs acting malafide have filed the suit at ranchi with an object of harassing the defendants. prayer has, therefore, been made to transfer the suit from ranchi to saharsa for the convenience of the parties concerned.4. it is obvious that under section 17 of the code, the suit can be tried either at ranchi or saharsa. where the suit can be instituted in one of the two or more courts, and has been instituted in one of such courts, under section 22 of the code a defendant can apply for transfer of the suit to another court. since the courts at ranchi and saharsa having jurisdiction in the subject matter of the suit are subordinate to two different appellate courts, under section 23 of the code, an application under section 22 of the code can be made before this court and under section 24 of the code, this court, in the facts and circumstances of the case, may transfer the suit from the court where it has been instituted to any of the courts wherein the said suit might have been instituted and is competent to try and dispose of the suit.5. it is true that plaintiff has a right to select his own forum and his right should not be interfered with except on a very strong ground and the onus to establish sufficient ground for transfer lies heavily upon the party seeking such transfer and unless it is found that in oheesing a particular court, the plaintiff has been acting malafide with an object of harassing the defendant, the court should be slow in changing the forum compelling the plaintiff to go to another court and thereby expose him to unnecessary expense of litigation. on the other hand, the convenience of the parties in the conduct of litigation is not only relevant, but certainly material consideration and, in effect, it is the basis of all the arrangements for statutory jurisdiction on the civil side and the preponderance of balance of convenience is of prime consideration for transfer of a suit. so, in my opinion, the convenience of the parties concerned is also one of the criteria and a valid ground for the purpose of transfer of the suit.6. in the present case, the ancestral home of both the parties is within the district of saharsa and not only greater part, but almost all the properties under partition, except small pieces of land at ranchi and patna, are situated in the said district. the majority of the individual parties are also residing there. according to the averments made in the plaint, the cause of action for filing the suit arose within the district of saharsa and the movables sought to be partitioned are also there. in the aforesaid circumstances, the petitioner's contention appears to be correct that almost all the witnesses, who know the fact, shall have to be called from saharsa to ranchi, if the suit is tried at ranchi. this would certainly cause unnecessary harassment to the parties.7. it is well settled that the search should be for justice and the court must be satisfied that justice would more likely be done between the parties by refusing to allow the plaintiff to continue his suit in the forum of his choice. in deciding the question as to whether it is expedient to order transfer of the suit, the convenience of the parties is indeed a factor which has to be taken into consideration, but it is obvious that the convenience of both the parties have to be weighed and the mailer must ultimately turn on the balance of convenience.8. in the present case, none of the parties to the suit is residing at ranchi. out of total 17 defendants is in the suit, who are all permanent residents within the district of saharsa only defendants no. 7 and 8, who are the sons of plaintiff no. 1and defendant no. 4 have been shown to be at present residing at places outside the district of saharsa. none of the defendants has come to oppose the application for transfer of the case from ranchi to saharsa. according to the plaintiff's own snowing, almost all the properties under the suit are at saharsa and a small piece of land is located at ranchi. there can be no doubt that for proving respective cases and claims of the parties, most of the witnesses must be of the place where the alleged events purported to have taken place.9. in my opinion, in the facts and circumstances of this case, there is no valid reason, except the convenience to the plaintiff for cheesing the forum of filing the suit at ranchi and as such, the plaintiff has acted malafide to harass the defendants. it would be advantageous to both the parties alike to have the suit tried at saharsa and the balance of convenience is also in favour of the suit to be tried there.10. as a whole, having regard to the attitude adopted by the plaintiff, i come to the conclusion that a very strong ground has been made out on the basis of the convenience to the parties concerned to order transfer of the suit from ranchi to saharsa.11. in the result, this application is allowed and partition suit no. 105 of 1981 pending in the court of the subordinate judge, ranchi, is directed to be transferred to the court within the jurisdiction of the district judge, saharsa.

Judgment:

Gurusharan Sharma, J.

1. The plaintiffs filed a suit for partition of their half-share along with the defendants No. 7 and 8 against other defendants in the Court of the Subordinate Judge, Ranchi. The defendant No. 3 has filed this application under Sections 22 to 24 of the Code of Civil Procedure, (herein after referred to as 'the code') for transfer the said Partition Suit from Ranchi to Sharsa.

2. A copy of the plaint of the suit has been annexed to this application. From perusal of the plaint, it appears that Chandra Shekhar Jha and Indu Shekhar Jha are sons of late Raghunath Jha of village Satarwar, P.S. Mahishi, District Saharsa. The said Indu Shekhar Jha and his two sons are plaintiffs and his two other sons are defendants No. 7 and 8 and Chandra Shekhar Jha and his sons are defendants 1 to 6. The other defendants No. 9 to 17 are the purchasers. Both immovable and movable properties under partition have been detailed in Schedules B to H of the plaint. The properties, except these in Schedule and item I in Schedule- F, at Ranchi and Patna respectively, are at Saharsa.

3. According to defendant No. 3, the ancestral home of the parties is in Saharsa District and majority of the individual parties reside there. The greater part of the properties under partition are situated in the said district and only a small piece of land standing in the names of plaintiff No. 2 and defendant No. 3, representing the aforesaid two branches is at Ranchi. As such, the plaintiffs acting malafide have filed the suit at Ranchi with an object of harassing the defendants. Prayer has, therefore, been made to transfer the suit from Ranchi to Saharsa for the convenience of the parties concerned.

4. It is obvious that under Section 17 of the Code, the suit can be tried either at Ranchi or Saharsa. Where the suit can be instituted in one of the two or more courts, and has been instituted in one of such courts, under Section 22 of the Code a defendant can apply for transfer of the suit to another court. Since the courts at Ranchi and Saharsa having jurisdiction in the subject matter of the suit are subordinate to two different appellate courts, under Section 23 of the Code, an application under Section 22 of the Code can be made before this Court and under Section 24 of the Code, this Court, in the facts and circumstances of the case, may transfer the suit from the court where it has been instituted to any of the courts wherein the said suit might have been instituted and is competent to try and dispose of the suit.

5. It is true that plaintiff has a right to select his own forum and his right should not be interfered with except on a very strong ground and the onus to establish sufficient ground for transfer Lies heavily upon the party seeking such transfer and unless it is found that in oheesing a particular court, the plaintiff has been acting malafide with an object of harassing the defendant, the court should be slow in changing the forum compelling the plaintiff to go to another court and thereby expose him to unnecessary expense of litigation. On the other hand, the convenience of the parties in the conduct of litigation is not only relevant, but certainly material consideration and, in effect, it is the basis of all the arrangements for statutory jurisdiction on the civil side and the preponderance of balance of convenience is of prime consideration for transfer of a suit. So, in my opinion, the convenience of the parties concerned is also one of the criteria and a valid ground for the purpose of transfer of the suit.

6. In the present case, the ancestral home of both the parties is within the district of Saharsa and not only greater part, but almost all the properties under partition, except small pieces of land at Ranchi and Patna, are situated in the said district. The majority of the individual parties are also residing there. According to the averments made in the plaint, the cause of action for filing the suit arose within the district of Saharsa and the movables sought to be partitioned are also there. In the aforesaid circumstances, the petitioner's contention appears to be correct that almost all the witnesses, who know the fact, shall have to be called from Saharsa to Ranchi, if the suit is tried at Ranchi. This would certainly cause unnecessary harassment to the parties.

7. It is well settled that the search should be for justice and the court must be satisfied that justice would more likely be done between the parties by refusing to allow the plaintiff to continue his suit in the forum of his choice. In deciding the question as to whether it is expedient to order transfer of the suit, the convenience of the parties is indeed a factor which has to be taken into consideration, but it is obvious that the convenience of both the parties have to be weighed and the mailer must ultimately turn on the balance of convenience.

8. In the present case, none of the parties to the suit is residing at Ranchi. Out of total 17 defendants is in the suit, who are all permanent residents within the district of Saharsa only defendants No. 7 and 8, who are the sons of plaintiff No. 1and defendant No. 4 have been shown to be at present residing at places outside the district of Saharsa. None of the defendants has come to oppose the application for transfer of the case from Ranchi to Saharsa. According to the plaintiff's own snowing, almost all the properties under the suit are at Saharsa and a small piece of land is located at Ranchi. There can be no doubt that for proving respective cases and claims of the parties, most of the witnesses must be of the place where the alleged events purported to have taken place.

9. In my opinion, in the facts and circumstances of this case, there is no valid reason, except the convenience to the plaintiff for cheesing the forum of filing the suit at Ranchi and as such, the plaintiff has acted malafide to harass the defendants. It would be advantageous to both the parties alike to have the suit tried at Saharsa and the balance of convenience is also in favour of the suit to be tried there.

10. As a whole, having regard to the attitude adopted by the plaintiff, I come to the conclusion that a very strong ground has been made out on the basis of the convenience to the parties concerned to order transfer of the suit from Ranchi to Saharsa.

11. In the result, this application is allowed and Partition Suit No. 105 of 1981 pending in the court of the Subordinate Judge, Ranchi, is directed to be transferred to the Court within the jurisdiction of the District Judge, Saharsa.