Calcutta High Court
Baburam Agarwalla vs Jamunadas Ramji And Co.
DATE: 1 December, 1949
P.B. Mukharji, J.
1. 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. Prom 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 Jalpaiguri but at the same time he is said to be in “indifferent health.” That is not sufficient obstacle to Baburam Agarwalla affirming an affidavit which he could have done even at Jalpaiguri in answer to this Rule.
6. Mohini Ranjan Ganguly describes himself as a law clerk but does not state when he became a law-clerk of the respondent. Even he does not choose to say why Baburam Agarwalla himself has not affirmed an affidavit. He has produced no written authority or written letter of appointment from the respondent. But I find from an affidavit which he makes on 19-9-1949, about his competency that he was verbally authorised to sign all papers and documents for the present purposes. In that affidavit to (sic) competence he only describes himself as an agent of Baburam Agarwalla which fact is embellished in his affidavit affirmed on 9-11-1949, where he becomes the “law-clerk” of the respondent.
7. Repeated observations have been made by the learned Judges of this Court on this point and strong objections have been taken to the practice of having affidavits affirmed by subordinate clerks. It is absolutely essential in my opinion in interlocutory proceedings where the Court is asked to make an order on affidavits only that such affidavits on which Courts are asked to act must be from persons who could be relied upon and on whose affidavit it will be safe for the Courts to proceed. The persons in most cases who should make the affidavits are naturally the parties themselves and this is particularly so when personal allegations such as those made in the present case are made against a particular party. It may be that in some cases a party to the suit may not be a proper person to swear an affidavit in which case the Court will certainly rely on the affidavit of an employee or an agent of his who could show his competence and acquaintance with the facts of the case. That is not only desirable but also convenient. But it must be distinctly understood that it is the exception rather than the rule.
8. I am, therefore, of opinion in this case that affidavit of Mohini Ranjan Ganguly is entirely inadequate and insufficient in the present proceedings and I certainly prefer to act on the oath of a partner of the applicant than that of the law-clerk of the respondent.
9. Mr. Sankar Banerjee, learned counsel for the applicants, has formulated the grounds on which he asks this Court to transfer the suit from Jalpaiguri Court and to remove such suit from Jalpaiguri and to try and determine the same here as a Court of extra-ordinary original jurisdiction. These grounds are : (1) The basic foundation of the Jalpaiguri suit is that there was fraud upon the process of this Court and that there was fraudulent suppression of summons and processes of this Court. This Court therefore according to Mr. Banerjee is the proper Court which should investigate the fraud which is alleged to have been practised upon it. (2) The balance of convenience according to Mr. Banerjee is in favour of a trial by this Court of the Jalpaiguri suit. His client’s evidence according to the petition of Jamunadas Ramji is entirely in Calcutta. Besides the main witnesses, the Shariff’s Officer and the person who accompanied him to effect service of the summons in the Calcutta suit, are in Calcutta, Records of the Calcutta Suit No. 1273 of 1944 as well as the Sheriff’s records are all in Calcutta. Indeed the petition goes further to say that the applicant has no agent or representative at Jalpaiguri who can look after the Jalpaiguri suit. On the affidavits I am disposed to accept Mr. Banerjee’s version of the facts on this point without hesitation. (3) There is the danger of personal violence to the applicants or their representatives if the suit is tried at Jalpaiguri. Indeed, it is said that Baburam Agarwalla himself held out this threat. I find, as I have said before, that Baburam Agarwalla has not pledged his oath to deny this allegation which is made in para. 23 of the petition. In other words applicants’ interest will be not only prejudiced but he or his representatives will be in jeopardy if the Jalpaiguri case is not removed to this Court.
10. These then are the facts and there is no sufficient denial by the respondent himself.
11. Mr. J. C. Guha, learned advocate for the respondent, has addressed elaborate arguments to this Court on the point. He has argued with considerable force before me that I should not in such a case as this exercise my power under Clause 13, Letters Patent. The main burden of his argument is that the Jalpaiguri Court has jurisdiction to try this suit and it is also competent to go into the question whether there has been a fraud upon this High Court or not.
12. I have not been impressed with this argument for the respondent that the Jalpaiguri Court has jurisdiction to try the Jalpaiguri suit. According to my interpretation of Clause 13, Letters Patent, the words “any suit being or tailing within the jurisdiction of any Court” occurring therein postulate that the Court from which the suit is being removed is a Court of competent jurisdiction. The fact therefore that the Jalpaiguri Court has the jurisdiction to try the Jalpaiguri suit is not in my judgment an obstacle to the suit being transferred from that Court to this Court. On the other hand, Clause 13, Letters Patent, indicates that it is one of the conditions which must exist before any order of removal is made under that particular clause. It is only when the Court from which the suit is being transferred has jurisdiction to try that suit that Clause 13 is intended to apply.
13. Mr. Guha’s argument on the balance of convenience is equally unconvincing. According to him the respondent is a Jalpaiguri man who does business at Jalpaiguri and it will be difficult for him to come and give evidence here if the suit is removed to this Court and tried here. On the affidavits I am not convinced as a matter of fact that the plaintiff does not do any business in Calcutta or that he does not come to Calcutta in connection with his business as alleged in the petition. As I have said before, here again, there is no denial by the respondent himself. In fact the allegation in para, 20 of the petition is that Baburam Agarwalla or his representatives ‘frequently’ come down to Calcutta for the purpose of their business in Tea and to attend and deal with the several Tea Brokers and Auctioneers in Calcutta. The denial in para. 14 of the law-clerk’s affidavit of this fact is in my opinion far too evasive.
14. The expression “balance of convenience” has inspired profound legal thought and has acquired the gloss of many judicial interpretations. Restated in simple terms it is a question of fact in each case. Balance of convenience is neither the convenience of the plaintiff alone nor of the defendant alone but the balance of convenience of both. In determining the balance of convenience for the trial of a suit the Court has to take into consideration (1) the convenience or inconvenience of the plaintiff and the right of the plaintiff to choose his own forums (2) the convenience or inconvenience of the defendant (3) the convenience or inconvenience of the witnesses required for a proper trial of the suit (4) the convenience or inconvenience of a particular place of trial having regard to the nature of the evidence on the main points involved in the suit and also having regard to the doctrine of “forum conveniens” and (5) the nature of issues in the suit.
15. The nature of evidence for a trial of a suit of this character such as the Jalpaiguri plaint discloses shows that the balance is in favour of this Court. The Sheriff’s officer and the applicant’s representative who accompanied at the time of service of the writ of summons are essential witnesses in this case and so are the records of this Court in respect of the Calcutta suit.
16. Personal violence to a litigant at a particular Court at a particular place or threat of such violence is in my judgment also a relevant consideration in exercising this Court’s powers under Clause 13, Letters Patent. Mr. Banerjee for the applicant has laid considerable stress on this particular aspect of this case. Here again the respondent has himself not chosen on oath to deny this allegation in the petition. I am not therefore prepared to accept the answer and the denial of the law-clerk on this point. In fact. Mr. Banerjee was prepared to show before me certified copies of certain criminal proceedings where violence was alleged against Baburam Agarwalla in pursuance of the statement of Jamunadas Ramji in para. 17 of his affidavit in reply affirmed on 17-11-1949.
17. Mr. Guha then argued that on the law as laid down in some of the decided cases I should not remove the Jalpaiguri suit to this Court, I propose briefly to analyse the cases that have been placed before me.
18. The first of these cases on which reliance has been placed on behalf of the respondent is one of 1866 reported in Indian Jurist p. 94 That was the case of Doucett v. Wise decided by Morgan J. on 28.1-1866. That case was removed from a Moffusil Court at Dacca on the ground that points of English Law were more proper to be decided by this Court and not by the District Court. No such question arises in this case. I am of opinion that that is not the only ground on which the suits can be removed to this Court under Clause 13, Letters Patent. With regard to the nature of evidence in that case I should have thought it was a case against the contentions of the respondent. The next case cited on behalf of the respondent is one of 1896 Harendra Lal Roy v. Sarva Mangala Debi, 24 Cal 183 a decision of Ameer Ali J. delivered on 7-1-1896. That also was a decision where this Court exercised its powers under Clause 13, Letters Patent, to remove the suit from a Dinajpur Court to this High Court on the grounds (i) that question of difficulty like extortionate and unconscionable bargain in a contract were involved in the suit and (ii) of balance of convenience with regard to the nature of evidence in the suit. I find this case to be no authority in favour of the contentions of the respondent.
19. The next case placed before me is one of 1926 Pran Kumar v. Darpahari Pal, a decision of the Court of Appeal from the Original Side of this Court of Sanderson C. J. and Panton J delivered on 2-7-1926. That decision is an authority on the point that proceedings for the grant of probate when contested come within the meaning of the word “suit” in Clause 13, Letters Patent, and as such can be transferred to the High Court. I have failed to see what relevance that decision has on the questions for determination in this application. No such questions arise in the present proceedings before me.
20. Lastly, Mr. Guha for the respondent has criticised the recent decision of Banerjee J. In re Rupendra Deb v. Asrumati Debi, 53 C. W. N. 770 delivered on 12-4-1949. He has argued that the principle of that decision is that if a litigant feels he will not get justice in a particular Tribunal that is a good ground on which he can ask this Court to exercise its powers of removal under Clause 13, Letters Patent, and that principle should not be accepted. His main criticism is on the following observation of the learned Judge occurring at p. 781 of the Report :
“The question is for the Court to determine whether the applicant who applies for the transfer feels that he is not likely to have a fair trial in the other Court.
In coming to a conclusion on this point the question for consideration Is what is the effect likely to be produced in the mind o! the party and not in the mind of the Judge. It is the feeling of the party that has to be ascertained and it necessarily depends on the individual concerned, his temperament and feeling, his interest and circumstances.”
21. The argument for the respondent is this that if the applicant ”feels” that his case should not have a proper trial in the Jalapaiguri Court that feeling as such, cannot be a ground for exercising this Court’s powers under Clause 13, Letters Patent, and Mr. Guha submits that so far as Banerjee J. decides to the contrary such decision is not in accord with the true tenor and spirit of the words of Clause 13, Letters Patent and the trend of the decisions of this Court.
22. The question requires careful consideration. The words “purposes of justice” in Clause 13, Letters Patent, are in my opinion advisedly general and wide so as not to fetter the discretion of this Court in any way. To attempt to define these words will be to defeat the amplitude of the provision. To conclude from various decisions from time to time the enunciation of different grounds on which transfer can be made under this clause and then to say that those grounds are exhaustive will be an unnecessary limitation of the scope of this provision. The Letters Patent are to be construed as a Statute and if the Statute has not chosen to formalise or exhaust the grounds on Which suits may be removed from other Courts to this Court it is not for this Court to define or delimit such grounds. The clause in the Letters Patent prescribes that “when the said High Court shall think proper to do so for purposes of justice” it will have the power to remove a suit from the Court mentioned therein and to try and to determine such suit here in this Court. What are the “purposes of Justice” and when “the said High Court shall think proper to do so” are, in my opinion questions better left to be decided on the merits and facts of each case. To define justice in this context as ‘a principle which regulates the distribution of things valued by men’ may not be as complete a definition as that statement would imply. Justice may be defined in various ways and has been so diversely defined through centuries of legal evolution. Leaving aside Plato’s idea of justice as based on the differentiation of citizens according to status and capacities. Aristotle distinguishes between corrective justice, distributive justice and general justice and according to that definition to describe justice as a principle regulating distribution of things would only come under one aspect of justice which Aristotle called distributive justice. The inadequacy of making justice mean a principle of distribution of things will appear from such consideration that it is the purpose of justice to afford protection to a man’s life and even take a man’s life by sentencing him to death and yet it is not the case of ‘distribution of things’. From the Greek Jurisprudence we come to the more sweeping concept of justice in Roman Law as homenam cause omne jus constitutum. Similarly to define justice as something which “gives to every one that which is his” is an inadequate attempt to simplify a complexity of notions. For it may be purpose of justice in a particular situation to deny a man which could have been his but for certain circumstances the Court withholds it from him. Prom this particular point of view the definition of Justinian is less open to criticism when he says justice is rendering to every man his legal due. Salmond describes this aspect of justice as merely a “rule of apportionment”. Justice like the true diamond has myriad facets and nothing is so misleading as to see one facet for describing its totality. The English jurists see justice as the rule of law while the new school of sociological jurisprudence so ably developed by the American jurists sees justice as the recognition of social interest in the security of social institutions. Manifestations of justice are as manifold as its concept and attempts to objectify its standards have never succeeded.
23. I cannot persuade myself to go to the length of saying that the “temperament” of the individual or his “feeling” can as such be a ground for transfer under Clause 13, Letters Patent. In my view personal feeling or private emotion or individual temperament as such of a litigant is not a proper consideration. It is only when there is a public sentiment in the locality in which the Court is situate against a litigant then the resultant “feeling” of that litigant produced by such public sentiment may be a ground for transfer. That is because such public seniment the locality creates an atmosphere of prejudice which may engulf not merely the Court trying the cause but may pervert witness and fail to secure fearless testimony and so embarrass trial and stifle justice. Then it will be one of the ‘purposes of justice’ to remove such a suit from that Court under Clause 13, Letters Patent. That is how I read the decision of the Privy Council in Mohur Singh v. Ghuriba, 15 W. R. (P. C.) 8: (6 Beng. L. R. 495). The observations of the Privy Council there emphasise the general feeling of the District to be strongly against him’ and “if he felt that he was not likely to have a fair trial before the local Judge with that feeling in the district against him.” In other words, when the private feeling of a litigant is due to the public sentiment or feeling against him in the local Court then alone it can be a ground for transfer. If, on the other hand, this Court under Clause 13, Letters Patent, were to consider the private feelings as such of a litigant or his temperamental prejudice against a particular Court then I am afraid there will be endless confusion if not for any other reason for the simple one that it will be creating a subjective standard which this Court will have no means to fathom, test and verify and any litigant might come to this Court saying that he in his own “temperament” and ‘feeling’ does not think there will be a fair trial in a particular Court. In my judgment he has to go much further and satisfy this Court that it is no mere matter of private feeling or individual temperament or personal sentiment against the Court in question but that there is a public feeling which has an objective standard and which this Court can test measure and examine. While the importance of securing the confidence of litigants in the fairness and impartiality of the Tribunal cannot be over-emphasised it has nonetheless to be stressed that the laws of the land have set up Courts of competent powers and jurisdictions which the mere temperamental prejudice or the private sentiment of an individual litigant cannot be permitted to supplant.
24. This I consider to be also the real purport and meaning of the observations of Banerjee J, in the decision quoted above and not what Mr. Guha contends. But if in expressing this view I have departed from any principle which was laid down by Banerjee J., I do so with the greatest respect to the learned Judge.
25. I am, therefore, of the opinion that it is proper for the purpose of justice in this case that this Court should remove the Jalpaiguri suit and try and determine the same here in this Court. In the circumstances therefore, I make the Rule absolute and order that suit No. 39 of 1949 in the Court of the Subordinate Judge of Jalpaiguri under the title Baburam Agarwalla v. Jamunadas Ramji & Co., be removed from the said Court and be tried and determined by this Court as a Court of extraordinary original jurisdiction under Clause 13, Letters Patent. The costs of these proceedings will be costs in the said salt so transferred.
Equivalent citations: AIR 1951 Cal 239, 54 CWN 189