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

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 (1 = appeal accepted, 0 = rejected): 0

Explanation:
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