The main legal point established in the judgment is that the Court has the discretion to transfer a suit for the purpose of justice, considering factors such as the balance of convenience, nature of evidence, and the danger of personal violence.

ORDER

P.B. Mukharji, J. - This is an application under Clause 13, Letters Patent for the transfer of Suit No. 39 of 1949 now pending in the Court of Subordinate Judge at Jalpaiguri. Baburam Agarwalla filed this suit against the applicants at Jalpaiguri for setting aside an ex parte decree passed by this Court on 11-12-1944, and thereafter sent to Jalpaiguri for execution against Baburam Agarwalla.

2. The plaint in Jalpaiguri suit is annexed to the petition of the applicants who are a registered firm under the name of Jamunadas Ramji & Co., affirmed by Jamunadas Ramji, a partner of the applicant firm on 9-9-1949. The Jalpaiguri plaint claims to set aside the decree of this High Court in Suit No. 1273 of 1944 between the parties and dated, as I have said, 11-12-1944 on the ground that such decree was obtained by suppression of summons and of all notices and processes of this Court and there is a charge of fraud against the applicants. The relief claimed in the Jalpaiguri plaint is first for a declaration that the High Court decree in Suit No. 1273 of 1944 is fraudulent, null and void and not binding on the Jalpaiguri plaintiff the respondent in this application, secondly for a decree for costs and thirdly for such further or other relief as may be granted by the Jalpaiguri Court. That plaint was verified by Baburam Agarwalla himself at Jalpaiguri on 10-8-1949.

3. On 9-9-1949, my learned brother Banerjee issued a Rule calling upon Baburam Agarwalla to show cause why the Jalpaiguri suit should not be transferred to this Court and why Baburam Agarwalla should not be prohibited and restrained from proceeding with the Jalpaiguri suit until the determination of this application.

4. The matter now comes up before me for final hearing of the Rule. I must state at once that Baburam Agarwalla the Jalpaiguri plaintiff has not chosen to affirm any affidavit himself in these proceedings. Instead of Baburam Agarwalla one Mohini Ranjan Ganguly describing himself to be a law clerk of Baburam Agarwalla has come forward with an affidavit in opposition which he affirmed on 9-11-1949. From the affidavit of service of the Rule I find that the Rule was served on Baburam Agarwalla himself on 13-9-1949 by affixation on his refusal to sign acceptance of the service of the Rule. Although more than two months elapsed from the service of the Rule before any affidavit in opposition is filed it appears that Baburam Agarwalla has for some unknown reason declined to affirm any affidavit himself.

5. This absence of an affidavit from Baburam Agarwalla is in my judgment a matter of much greater significance than one of mere form. Jamunadas Ramji a partner of the applicant firm pledges his oath in the petition that at the time of service in the Calcutta suit Baburam Agarwalla was actually residing at Room No. 11, in the first floor of premises No. 164, Chittaranjan Avenue, Calcutta, secondly he also charges Baburam Agarwalla of having seen him after service of writ of summons in the Calcutta suit for negotiating a settlement. Thirdly, he also pledges his oath saying that Baburam Agarwalla openly threatened the applicants' representative Ghanshamdas Jamunadas that if he came to defend the Jalpaiguri suit he would not go back with his life. None of these allegations baa been denied by Baburam Agarwalla himself. These are personal allegations against Baburam and, if they are not true it is for Baburam to deny them and not his clerk. He had two months time and, in my opinion, if he wanted to deny these allegations made personally against him he should have himself affirmed an affidavit to deny the same. If he could verify his own plaint at Jalpaiguri, I see no reason what was there to prevent him from affirming an affidavit even at Jalpaiguri in opposition to these proceedings. I do not consider this to be a matter where an alleged law-clerk could be set up to deny these facts. It is said in the law-clerk's affidavit that Baburam Agarwalla is doing large business at Jalpai