Madras High Court
P.S.A. Rajaguru vs P.S.D. Nagamani Marthandan And Ors. on 19 July, 1999
Equivalent citations: (1999)3MLJ327
ORDER S.S. Subramani, J.
1. Second defendant in O.S.No. 4269 of 1996, on the file of VII Assistant Judge, City Civil Court, Madras, is the petitioner herein. The above transfer C.M.P. has been filed under Section 24 of the Code of Civil Procedure to withdraw and transfer O.S.No. 4269 of 1996 to Sub Court, Kovilpatti, which is the competent court having territorial jurisdiction.
2. Respondents 1 and 2 herein have filed O.S.No. 4269 of 1996, on the file of VII Assistant Judge, City Civil Court, Madras, to declare that the suit partnership business run under the name and style of Messrs Naryanaswami Talkies at Kovilpatti Town, V.O.C. District, stands dissolved with effect from 30.11.1995, or in the alternative, to fix a date of dissolution of the suit partnership firm; to direct the defendants in the suit to render true and proper accounts relating to all the affairs and business of the firm including the goodwill from 24.4.1985 as on 29.2.1995 and ascertain 5% of plaintiffs share each, in the suit partnership business; to appoint a commissioner for taking account of the suit partnership business; to direct the defendants to pay costs of suit to plaintiffs; and to grant such other reliefer reliefs as the court may deem fit and proper in the circumstances of the case.
3, Petitioner herein has filed written statement in the suit, and one of the contentions raised is regarding jurisdiction of the court. In the affidavit filed in support of the application seeking transfer, petitioner has alleged that no part of the cause of action has arisen at Madras. In the plaint, cause of action for filing the suit is stated in para 11, which reads thus:
The cause of action for the above suit arose at Madras on 12.9.1957 when he 1st defendant firm came to be registered with the Registrar of Firms at Madras, within the jurisdiction of this Hon'ble Court; on 1.4.1972, when the plaintiffs became partners of the 1st defendant-firm; in 1979 when the first defendant's theatre was let out to the second defendant on a monthly lease basis of Rs. 2,500; on 11.4.1982 when the 2nd defendant agreed to pay the enhanced lease amount of Rs. 5,000 per month; on 24.4.1985 when the 2nd defendant herein was inducted as one of the partners of the 1st defendant firm; on 28.7.1995 when the second plaintiff submitted a representation to the District Col Sector of V.O.C. District not to issue the 'C Form Licence in the individual name of the second defendant; on 31.8.1995, when the High Court, Madras was pleased to pass an order in W.P.No. 11881 of 1995 on 16.10.95, when the second plaintiff along with the other partner caused a notice of dissolution of the first defendant firm through his lawyer; on 29.11.95 when the second defendant is misusing, misappropriating and diverting the funds, name and goodwill, etc. of the first defendant firm for his individual benefits.
In the earlier portion of the plaint, it is further averred that the second defendant has surreptitiously managed to influence some of the partners step by step, and allegedly purchased the shares of those partners, that the second defendant is in sole custody of the account books, documents, etc. pertaining to the business and administration of the 1st defendant firm and the second defendant is not allowing the plaintiffs to have access over the same in a lawful manner, for which the plaintiffs are entitled as of right, and the second defendant is not even allowing the plaintiffs to enter into the theatre complex. It is also averred that the second defendant has fabricated accounts as if the firm is running at a loss. It is further said that the second defendant is duty bound as a partner to carry on the business of the first defendant-firm to the common advantage of all the partners, and render true and correct accounts and full information of all things and transactions affecting the firm. It is said that the partnership accounts should have been kept in the business premises where all the partners have access to the accounts. The same has been violated, and plaintiffs apprehend that the second defendant will tamper the accounts which will put the plaintiffs to great loss and hardship. It is also said that the second defendant is a attempting to cause disappearance of all evidence relating to transactions concerning the firm. In view of the Acts of the second defendant, plaintiffs also moved the District Collector, who is the licensing authority, not to issue the 'C Form Licence in the individual name of second defendant. Plaintiffs' representation was rejected, and it resulted in the filing of W.P.No. 1181 of 1995, which also did not succeed. It is said that the 2nd defendant is having the original partnership deed and plaintiffs have not been given even a copy of the deed, except the copy of the deed dated 1.3.1972. It could be seen from the plaint that prior to the institution of the suit, there was exchange of notice and reply notice between the parties.
4. The only reason for filing the suit before the VII Assistant Judge, City Civil Court, Madras is that the partnership deed was registered at Madras and, therefore, it forms part of the cause of action, and courts Madras have got jurisdiction to try the suit.
5. To the transfer application detailed affidavit has been filed by second defendant stating in para 4, that since the partnership firm has been registered at Madras, the City civil Court has jurisdiction to entertain the above suit.
6. Heard learned Counsel for both parties.
7. Learned Counsel or respondents 1 and 2 placed before me xerox copy of Certificate of Registration issued by the Registrar of Firms. It could be seen there from that the firm was registered as No. 1435 of 1957, and it was registered on 12.9.1957. It is a partnership at will It also could be seen that it was registered at Madras by the Registrar of Madras, Madras North.
8. Even though I wanted the Deed of Partnership to be produced before this Court, the same was not made available to me and, therefore, only on the basis of the averments made in the plaint, the certificate of Registration and also the transfer petitioner I have to decide this case.
9. Learned Counsel for respondents 1 and 2 disputed the maintainability of the petition for transfer. According to him, since the petitioner has challenged the territorial jurisdiction of the City Civil Court, Madras the application for transfer is not maintainable. Only if he concedes the jurisdiction of the City Civil Court, the question of transfer will arise.
10. I find force in the said contention. In paragraph 7 of the written statement, petitioner has said thus:
...it is most humbly submitted that this Hon'ble Court has no territorial jurisdiction to entertain this suit as the plaintiff, defendants and the suit properties are all lying within the jurisdiction of the Hon'ble Subordinate Judge, Tuticorin.
In the affidavit filed in support of the transfer application, in paragraph 7, petitioner has reiterated the contention raised the written statement, and he even now doubts the jurisdiction of the City Civil Court, Madras.
11. Under Sections 22 and 23 of the Code of Civil Procedure, the question of transfer of a suit will arise only when a suit is 'property instituted.' The expression 'properly instituted' includes institution of suit in a competent court having territorial jurisdiction. Petitioner can apply for transfer only if he also agrees that the suit has been 'properly instituted. In the written statement as well as in the affidavit filed in support of the transfer application, even now he is challenging the maintainability of the suit before the City Civil Court, Madras. Learned Counsel for petitioner also did not want me to enter a finding as to whether the city civil court, Madras has got jurisdiction to entertain the suit. In such cases, the legal position is well-settled. In Ram Kumar v. Tula Ram A.I.R. 1920 Pat. 138(2), it was held thus:
A defendant cannot raise an issue as to the jurisdiction of the court in which the suit is pending and at the same time apply for transfer of the case under Section 22, which contemplates that the suit may be properly instituted in the court in which it is pending as well as in some other court.
12. A Division Bench of the Allahabad High Court, in the decision reported in Basanti Devi v. Mt. Sahodra A.I.R. 1935 All. 979, has reiterated the same principle. On the facts of that case, their Lordships held that transfer could be allowed. In that case, defendant raised a contention regarding jurisdiction, got a finding in respect of the same, and thereafter moved an application for transfer. In such circumstance, transfer, was allowed. Distinguishing two earlier decisions of that High Court, wherein it was declared that a defendant who questions the jurisdiction of the court is not entitled for transfer, their Lordships held thus:
The second question of law that was argued was that the applicant before us having questioned the jurisdiction of the Agra court could not maintain an application under Section 22, Civil P.C., and in this connexion reliance was placed on the case reported in 12 A.L.J. 896 and on the case reported in 21 I.C. 217. It appears that in the present case the defendant had questioned the jurisdiction of the Subordinate Judge of Agra in a miscellaneous application, but the learned Subordinate Judge repelled the contention. In the application before us the jurisdiction of the court below has not been questioned and the application proceeds on the assumption that the court at Agra had jurisdiction to try the suit. In the two cases on which reliance has been placed the applicant while making the application for transfer questioned the jurisdiction the court, and it was pointed out that under such circumstances it was not open to the party to invoke the provisions of Section 22, Civil P.C., which contemplate the existence of jurisdiction in the court where the suit is pending. We think the two cases are clearly distinguishable, and there is nothing in the conduct of the applicant which disentitles him from the relief which he claims.
13. In Firm Babu Lal v. Kotulal A.I.R. 1941 All. 27, another Division Bench of that High Court has held thus:
...It is admitted that in Suit No. 346 of 1939, pending in the Munsif's Court, Benares, the applicants have raised a plea denying the jurisdiction of that court. Section 23 postulates that the several courts concerned shall both have jurisdiction, and it is therefore obvious that in view of the plea of want of jurisdiction which has been taken by the applicants themselves in the Court at Benares this application cannot succeed. If authority is required for this proposition, it is to be found in a single Judge decision of this Court, 12 A.L.J. 896 and in a single Judge decision of the Judicial Commissioner's Court, at Sind, Gangumal v. Nanikram A.I.R. 1932 Sind 215....
14. In N. Krishnaji Rao v. Gokuldas Harbhagavandas and another A.I.R 1955 Mys. 115, in paragraph 4 of the judgment, it has been held thus: (Relevant portion) Again there appears to be a legal impediment for the transfer of the cases from the court of Principal Subordinate Judge, Bangalore, to the court of the Subordinate Judge in Mysore. In the suits spending before the Principal Subordinate Judge, Bangalore, the defendant has admittedly taken a stand that the Sub Court has no jurisdiction to entertain this suit. It is not open to a defendant to contend that a particular court has no jurisdiction to entertain the suit and at the same time, ask for a transfer of the case to some other court.
In this connection, I would like to refer to the decisions reported in Gangumal v. Nanikram A.I.R. 1932 Sind 215 and Singara Mudaliar v. Govindaswami Chetty A.I.R. 1928 Mad. 400. In the first case, His Lordship has held that a superior court cannot make an order of transfer of a case under the appropriate section of the Civil Procedure Code unless the court from which the transfer is sought to be made has jurisdiction to try it, and that a defendant cannot therefore raise an issue as to the jurisdiction of a court in which the suit is pending and at the same time apply for transfer of the case under Section 24....
15. In Hari Ram v. Anil Kumar , in paragraph 4 of the judgment, a learned Judge of that High Court has held thus:
Admittedly, in the two suits, the defendant has raised the question of territorial jurisdiction of the court at Hissar to entertain the suit which is pending adjudication before the court. "That being so, no transfer of the suit could be sought on that ground.
16. I do not want to go into the merits of the case, In my opinion, no ground has been made out for a transfer. Till date, petitioner herein (2nd defendant) has not withdrawn his contention regarding lack of jurisdiction of the City Civil Court, Madras to entertain the suit. Consequently, the transfer C.M.P. is dismissed as not maintainable. C.M.P.No. 4385 of 1999 for stay is also dismissed. No costs.