Case: Western U.P. Electric And Power Vs. Hind Lamps Ltd

Shah, J.1. The Western U. P. Electric & Power Supply Co. Ltd. hereinafter called the appellant filed on February 25, 1965 suit No. 2 of 1965 in the court of the Civil Judge at Mainpuri against the respondent Company for a decree for Rs. 94,708/25. The amounts claimed consisted of two items. Rs.3Q,24/25 being the charge for electrical energy consumed during February and March 1962 and Rs. 64,467/- being the minimum guarantee from 1st April to 30th September, 1962. On February 26, 1965 the respondent Company filed suit No. 113 of 1965 in the court of the Senior Sub-Judge Delhi against the appellant, for a decree for Rs. 309620/91 claimed as compensation for loss arising from defective supply, refund of security deposit etc. On September 28, 1965, the respondent Company moved an application before the High Court of Allahabad for transfer of the suit pending before the Civil judge Mainpuri to the court of the Sub-Judge at Delhi. On 24-3-1967 Seth J. directed that "Suit No. 2 of 1965 pending in the court of Civil Judge at Mainpuri x x be transferred to the court of learned Sub-Judge 1st Class Delhi". The appellant thereafter applied for recalling the order on the ground that the condition precedent to the application of Sections 22 and 23 of the C. P. Code did not exist and the High Court had no jurisdiction to transfer the suit pending in the Mainpuri court to a court not subordinate thereto. The learned Judge then raised an issue:"whether Hind Lamps Ltd., has a subordinate office at Delhi and whether it carries on business in Delhi or not?"and called for a finding thereon from the Civil Judge Mainpuri. The Civil Judge submitted his finding that Hind Lamps Ltd. had "a branch office at Delhi and was carrying on business in Delhi." The learned Judge, however, did not state the date on which the branch office of Hind Lamps was opened in Delhi.2. At the hearing before the High Court Counsel for the appellant conceded that the Allahabad High Court had jurisdiction to transfer the Mainpuri suit to the court of Sub-Judge, 1st Class, Delhi. On that concession Seth J. declined to recall the order dated 24-3-1967.3. Several contentions are raised in support of this appeal.It is urged that the Allahabad High Court was incompetent to transfer the suit pending in the court of the Civil Judge, Mainpuri to a court not subordinate to it unless the suit could competently be instituted in the court of the Subordinate Judge Delhi. Section 22 of the C.P. Code provides:"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 of the objections of the other parties (if any), shall determine in which of the several courts having jurisdiction the suit shall proceed."Section 23 sets out the courts in which the application under Section 22 may be made. It provides :23. (1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under Section 22 shall be made to the Appellate Court.(2) Where such Courts are subordinate to different Appellate. 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."The Court of the Civil Judge Mainpuri is subordinate to the High Court of Allahabad. But the application under Section 23(3) could be granted only if the suit in the Mainpuri Court could have been filed in the Court of the Subordinate Judge, Delhi, and for reasons of convenience it was just to transfer the suit.4. Mr. Chagla urged that the cause of action for the suit tiled by the appellant arose within the jurisdiction of the Civil Judge, Mainpuri, and the suit could lie in that Court alone, and not in the Court of the Subordinate Judge, Delhi. The respondent contended that at all material times it had a branch office in Delhi, and on that account the suit could be instituted in the Court of the Subordinate Judge, Delhi.5. Existence of a branch office of the respondent in Delhi was a matter in dispute. The respondent asserted that it had a branch office in Delhi since 1950: the Appellant Company contended that at the date of the institution of the suit, the respondent had no branch office or place of business within the limits of the Sub-Judge 1st Class Delhi. Seth J. directed an inquiry in that behalf by his order dated 24-3-67. The Civil Judge at Mainpuri after recording evidence apparently came to the conclusion that the respondent had a branch office or a place of business within the jurisdiction of the Sub-Judge, Delhi. D.W.I, S.P. Sabarwal, Working as Branch Incharge of the respondent stated that M/s. Hind Lamps Ltd. had a branch office at 4/11, Asaf Ali Road, New Delhi, since the year 1950-51.6. It may be conceded that some other parts of the evidence of the witnesses are inconsistent with the statement made by him. The learned Civil Judge accepted the testimony and made a report to the High Court that Hind Lamps Ltd. had a place of business in Delhi. At the hearing Counsel for the Appellant conceded that the High Court had jurisdiction to transfer the suit. It would be reasonable to infer that the Appellant admitted that because the respondent had a branch office in Delhi the High Court of Allahabad had jurisdiction to transfer the Mainpuri suit in exercise of the power under Section 22 read with Section 23(3) of the Code of Civil procedure. Sitting in appeal with Special Leave, we would not be justified in ignoring the concession made at the bar by Counsel for the Appellant. We are unable to accept the contention that Counsel merely admitted that jurisdiction under Sections 22 and 23(3) was exerciseable by the High Court, but denied the existence of the conditions precedent to the exercise of the jurisdiction.7. It was also contended by Mr. Chagla that the appellant is in the Mainpuri suit dominus litis and had the right to choose the forum of trial, and unless there are strong grounds made out, the appellant should not be driven to litigate in a court not of its choice. It is true that in the judgment of the High Court delivered in the first instance on March 24, 1957 and affirmed on. April 29, 1968, the question whether it was expedient in the interest of justice that the Mainpuri suit should be transferred to the Court of the Subordinate Judge, Delhi is not discussed. But the reason is not far to seek. When Counsel for the appellant conceded that the High Court had jurisdiction to transfer the suit to the Delhi Court: no reservation could be implied that in the circumstances of the case no grounds were still made out for transferring the suit. The concession related alike to the existence of the conditions precedent as to the jurisdiction of the Court to transfer.8. It was also contended that the procedure followed by the High Court was erroneous. It was submitted that the High Court should merely have declared that the suit should proceed in the court of the Sub-Judge Delhi, and the High Court could not transfer the suit from the court of Civil Judge at Mainpuri. But the application contemplated to be made under Section 22 is one for transfer and when such an application is made, the court is competent to determine in which of the several Courts having Jurisdiction the suit shall proceed and to transfer, the suit to that Court if it is already not pending in that Court. If the application made before the Court is one for transfer, and the Court after considering the circumstances determines that one of the several courts shall proceed to hear the suit, the determination of necessity must be followed by transfer of the suit to the court in which it is to proceed; to hold otherwise would be to make the entire proceeding before the High Court meaningless.9. The argument that the plaint pending in the Mainpuri Court should have been returned for presentation to the proper court, does not merit serious consideration. A plaint may be returned for presentation to the proper Court if the Court in which it is pending has no jurisdiction to try it. A suit properly instituted in a court which has jurisdiction may alone be transferred to another court: it cannot be transferred to another court if the court in which it is pending is incompetent to entertain it. In the present case, the suit was properly entertained by the court of the Civil Judge at Mainpuri and by an application made under Section 22 read with Section 23(3) C.P. Code, it was ordered to be transferred. It was submitted that a High Court by transferring a suit pending in a court subordinate to it, to another court not subordinate to it intrudes its authority to compel that Court to try the proceeding which it cannot control : exercise jurisdiction of that character it was said could not have been contemplated by the legislature. Bat that is what Sections 22 and 23(3) C. P. Code, expressly provide. We see no ground for holding that the sections were not intended to confer jurisdiction of the character exercised by the High Court by the order appealed against.10.

Decision:
0[ds]6. It may be conceded that some other parts of the evidence of the witnesses are inconsistent with the statement made by him. The learned Civil Judge accepted the testimony and made a report to the High Court that Hind Lamps Ltd. had a place of business in Delhi. At the hearing Counsel for the Appellant conceded that the High Court had jurisdiction to transfer the suit. It would be reasonable to infer that the Appellant admitted that because the respondent had a branch office in Delhi the High Court of Allahabad had jurisdiction to transfer the Mainpuri suit in exercise of the power under Section 22 read with Section 23(3) of the Code of Civil procedure. Sitting in appeal with Special Leave, we would not be justified in ignoring the concession made at the bar by Counsel for the Appellant. We are unable to accept the contention that Counsel merely admitted that jurisdiction under Sections 22 and 23(3) was exerciseable by the High Court, but denied the existence of the conditions precedent to the exercise of theis true that in the judgment of the High Court delivered in the first instance on March 24, 1957 and affirmed on. April 29, 1968, the question whether it was expedient in the interest of justice that the Mainpuri suit should be transferred to the Court of the Subordinate Judge, Delhi is not discussed. But the reason is not far to seek. When Counsel for the appellant conceded that the High Court had jurisdiction to transfer the suit to the Delhi Court: no reservation could be implied that in the circumstances of the case no grounds were still made out for transferring the suit. The concession related alike to the existence of the conditions precedent as to the jurisdiction of the Court toCourt of the Civil Judge Mainpuri is subordinate to the High Court of Allahabad. But the application under Section 23(3) could be granted only if the suit in the Mainpuri Court could have been filed in the Court of the Subordinate Judge, Delhi, and for reasons of convenience it was just to transfer thes true that in the judgment of the High Court delivered in the first instance on March 24, 1957 and affirmed on. April 29, 1968, the question whether it was expedient in the interest of justice that the Mainpuri suit should be transferred to the Court of the Subordinate Judge, Delhi is not discussed. But the reason is not far to seek. When Counsel for the appellant conceded that the High Court had jurisdiction to transfer the suit to the Delhi Court: no reservation could be implied that in the circumstances of the case no grounds were still made out for transferring the suit. The concession related alike to the existence of the conditions precedent as to the jurisdiction of the Court tothe application contemplated to be made under Section 22 is one for transfer and when such an application is made, the court is competent to determine in which of the several Courts having Jurisdiction the suit shall proceed and to transfer, the suit to that Court if it is already not pending in that Court. If the application made before the Court is one for transfer, and the Court after considering the circumstances determines that one of the several courts shall proceed to hear the suit, the determination of necessity must be followed by transfer of the suit to the court in which it is to proceed; to hold otherwise would be to make the entire proceeding before the High Court meaningless.9. The argument that the plaint pending in the Mainpuri Court should have been returned for presentation to the proper court, does not merit serious consideration. A plaint may be returned for presentation to the proper Court if the Court in which it is pending has no jurisdiction to try it. A suit properly instituted in a court which has jurisdiction may alone be transferred to another court: it cannot be transferred to another court if the court in which it is pending is incompetent to entertain it. In the present case, the suit was properly entertained by the court of the Civil Judge at Mainpuri and by an application made under Section 22 read with Section 23(3) C.P. Code, it was ordered to be transferred. It was submitted that a High Court by transferring a suit pending in a court subordinate to it, to another court not subordinate to it intrudes its authority to compel that Court to try the proceeding which it cannot control : exercise jurisdiction of that character it was said could not have been contemplated by the legislature. Bat that is what Sections 22 and 23(3) C. P. Code, expressly provide. We see no ground for holding that the sections were not intended to confer jurisdiction of the character exercised by the High Court by the order appealedCourt of the Civil Judge Mainpuri is subordinate to the High Court of Allahabad. But the application under Section 23(3) could be granted only if the suit in the Mainpuri Court could have been filed in the Court of the Subordinate Judge, Delhi, and for reasons of convenience it was just to transfer the