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HIGH COURT OF MADHYA PRADESH
C.P. SEN, B.C. VERMA, JJ.
Swaroopanand Saraswati
v.
Shri Ramji Tripathi and others.
L.P.A. No. 26 of 1976 against 1978 JLJ 666;
Decided on : 13-11-1978.
The order transferring a suit is not judgment as it neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. It is also an application in a suit as a step towards determination of the controversy between the parties in suit. AIR 1953 SC 198 relied on. [Para 8]
(2) Letters Patent (Nagpur) Cl. 10 - power of the High Court while hearing appeal-not bound by limitations imposed by sections 100 and 101 of the Code of Civil Procedure.
The power of a Division Bench hearing a Letters Patent appeal under Clause 10 from the judgment of a Single Judge in first appeal is not limited only to a question of law under section 100, Civil P.C. but It has the same power which the Single Judge has as a first Appellate Court in respect of both questions of fact and of law. The limitations on the power of the Court imposed by Ss. 100 and 101, Civil P.C. cannot be made applicable to an Appellate Court hearing a Letters Patent appeal for the simple reason that Single Judge of the High Court is not a Court subordinate to the High Court. AIR 1974 SC 2048 followed [Para 9]
(3) Civil P.C., 1908 - Ss. 22, 23, and 24 - application for transfet -defendent should object on earliest date.
Under section 22, the defendant, after notice to the other parties and at the earliest possible opportunity and at or before settlement of issues, may apply to have the suit transferred to one of the other Courts where the suit could have been filed. Though the notice to the other parties is to be given, the defect can be cured by notice on the application itself, the Court has to decide the application after hearing the objections, if any, of the other parties in the suit. Section 23 prescribes the forum where the application for transfer has to be made. In case the suit is sought to be transferred to a Court subordinate to another High Court., the application has to be made in the High Court within whose jurisdiction the suit is pending. In the present case, the respondent No 1 entered appearance in the suit for the first time before the District Judge, Seoni, on 9-9-1974 and the application for transfer was moved in this Court on the very next date on 10-9-1974 to transfer the suit to a competent Court at Allahabad. The learned Single Judge decided the application after notice and hearing all the parties to the suit. As such, the learned Single Judge has rightly entertained and decided the transfer application. AIR 1940 Nag.145 relied on.
[Para 10]
(4) Civil P.C., 1908-Ss.22 and 23-matters to be seen while considering application for transfer of a case - onus to establish grounds-cause of justice to be kept in mind.
The plaintiff, as arbiter litis, has a right to choose his own forum and that right should not be interfered with except on very strong grounds. The search should be for justice and the Court must be satisfied that justice could more likely be done between the parties by refusing to allow plaintiff to continue his suit in the forum of his choice. The onus of establishing sufficient grounds for the transfer lies heavily on the applicant. There is unanimity of opinion that preponderance of balance of convenience is of prime consideration for transfer of suit. So the convenience of the parties is a valid ground of transfer though there is no unanimity about it being a material ground for transfer. 1978 JLJ 666 confirmed. [Para 11]
Another factor that has to be taken into consideration is the interest of justice. A case has to be transferred if there is reasonable apprehension of a party to a suit that he might not get justice in the Court where the suit is pending. This may be because the trial Judge is prejudicial or because there in the surcharged atmosphere no fair trial is possible at that place. [Para 12]
C.P. Sen, J.- 1. This is an appeal under clause 10 of the letters Patent by the plaintiff against the order of the learned Single Judge transferring the suit from the Court of District Judge, Seoni, to the Court of District Judge Allahabad under sections 22 and 23 of the Code of Civil Procedure.
2. Several centuries ago the late Jagatguru, Adishankaracharya propounded the theory of absolute Monism based on the authority of Upanishad, and his philosophy succeeded in combating Budhism and restablishing the religion of Vedas For the purpose of strengthening and maintaining the Doctrine of Non-dualistic philosophy, which he preached, he established four Mathas as monasteries in the four extremeties of India namely the Jyotishpeeth near Badrinath, now Chamoli Garhwal, in the North, Shardamath in the West in Gujrat, Shringeri Math in the South in Mysore and Gowardhan Matha in the East at Puri and placed each one of them under the charge of one of his principle ascetic-disciples. He also prescribed the territorial jurisdiction of Maths. The present proceeding concerns the Matha near Badrinath. Swami Brahmanand Saraswati was the Shankaracharya of this Matha and the died on 20-5-53. It appears that thereafter dispute arose regarding his successor. The respondent No.1 Swami Shantanand Saraswati claimed himself to be his successor under a registered will dated 18-12-52 executed by Swami Brahmanand Saraswati. The interim committee of which the appellant was the President decided to install the respondent No.1 as Shankaracharya of the Matha on 8-6-53. Accordingly, the respondent No.1 was so installed as Shankaracharya. But immediately thereafter dispute arose and Swami Krishna Bodhashram was installed as Shankaracharya by persons opposed to the respondent No.1. On 11-7-58 the respondent No.1 applied for a succession certificate and the same was granted to him by the District Judge, Allahabad, in Misc. Case No. 44/53 on 12-12-55. Thereafter the respondent No.1 was placed in charge of all the properties of the Maths. An appeal was preferred against the order by the appellant which was dismissed.
3. After obtaining sanction of the Advocate General of U.P. on 29-4-54, Civil suit No. 3/54 was filed against the respondent No.1 that Swami Krishan Bodhashram has been selected by the Pandits and followers of the Jyotishpeeth as the Shankaracharya and it was prayed that he be so declared. The said civil suit was dismissed by the Additional District Judge, Varanasi on 20-10-62. An appeal to the High Court was also dismissed on 11-9-73 in F.A. No. 385/62 by Allahabad High Court. A further appeal was preferred to tile Supreme Court which was also dismissed on 21-8-74 and it is reported in Parmatmanand Saraswati v. R. Tripathi, AIR 1974 SC 2141. As by that time Swami Krishna Bodhashram had expired, the appellant was permitted to intervene in the Supreme Court. The suit was held not maintainable under section 92 of the Code when the allegations of mal-administration or breach of trust were neither stated nor proved. After the dismissal of the suit by the Additional District Judge. Swami Krishna Bodhashram filed civil suit No. 3/63 in the Court of Civil Judge, Tehri, U.P. Subsequently transferred to Allahabad for a declaration that he is the successor to the Gaddi of Shankaracharya of Jyotishpeeth and he is the trustee of all the properties. It was further prayed that the will dated 18-12-52 in favour of the respondent No.1 be declared null and void and not validly executed. A further prayer was made for possession over all the properties detailed in the schedule A statement has been made at the bar by the learned counsel for the respondent No.1 that permission was granted to Swami Krishna Bodhashram to sue in forma pauperis...A revision was preferred to the Allahabad High Court against the order of the trial Court holding that the present suit is not barred by res-judicata in view of the earlier civil suit under section 92 of the Code, In the meanw
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