JUDGMENT : K.B. Panda, J. - This is on application filed under Sections 151 and 24 of the CPC praying for transfer of Title Suit No. 79 of 1972 now pending on the file of the Subordinate Judge, Cuttack to the file of the Subordinate Judge, Sambalpur for trial there, on the grounds inter alia that the suit is a partition suit; that the bulk of the properties are situated within the jurisdiction of the Sambalpur Court; that the bulk of the evidence in the case would be from Sambalpur; that it will be convenient for both parties to adduce evidence at Sambalpur and that in fact, there is no allegation in the plaint that there was any justification for the suit to have been filed at Cuttack, which has only been done with the sale purpose of bringing down the Defendant--who is a poor retired Lower Primary School teacner--on his knees. 2. The petition is resisted on the ground that the plaint was filed on 11-5-1972 and when the Defendant appeared in response to the notice on 11-7-1972, he did not raise any objection to the hearing of the suit at Cuttack; that even when the written statement was filed on 17-1-1973 and thereafter issues were settled on 17-2-1973, no such objection was taken; that there was on order for ex parte hearing which was later withdrawn and now as the suit is ready for hearing, at this late stage there is no justification for transfer of the suit from Cuttack to Sambalpur. 3. Mr. S.K. Dey, learned Advocate appearing on behalf of the Petitioner contended that out of the suit properties which have been valued at Rs. 58,000/-, only Schedule B properties worth Rs. 5,500/- are within the jurisdiction of the Subordinate Judge, Cuttack and the rest lie within the jurisdiction of Sambalpur Court. The suit is one for partition brought by the last son of one Bhagawati Charan Mitra against the third son as the sale Defendant, the other two sons, namely, Birendra and Dhirendra having died unmarried and issueless at Sambalpur in the ancestral house of the family. 4. To appreciate the rival contentions of the parties, some of the facts need be stated. As averred in the plaint, the father of the parties Bhagawati Charan Mitra was a needy man. 4. To appreciate the rival contentions of the parties, some of the facts need be stated. As averred in the plaint, the father of the parties Bhagawati Charan Mitra was a needy man. He got a service as Head Clerk in the office of the Political Agent, Chhatisgarh, Sambalpur and during the tenure of his service there, he invoked the sympathy of several ruling Chiefs who rewarded him with gold and cash. Thus he could become rich and with that money started money-lending business till his death in 1928- 29. By that time, as alleged in the plaint, he had left a cash worth Rs. 20,000/- and about 200 tolas of gold and silver and other articles worth Rs. 5000/- to Rs. 6000/-. After his death, Dhirendra the eldest son became the Karta of the family and continued, the money-lending business started by his father. He further took up a lucrative Kendu Leaf business and maintained the joint family. The Defendant was educated by Dhirendra and so also the Plaintiff. The Defendant became on L.P. School teacher under Sambalpur Municipality and was getting a paltry salary of Rs. 20/- per month. The Plaintiff after obtaining his degree served as a teacher in the Sambalpur Zilla School in the year 1948. Subsequently he passed M. Sc. examination and got service in the Fisheries Department. According to the Plaintiff, he was handing over his salary to the eldest brother Dhirendra and thus the properties acquired in the name of Dhirendra were all joint family properties. Later, die Plaintiff joined as S.R.A. Director of Fisheries and went abroad to America for higher studies. From America he was sending money to Dhirendra and the total amount so sent would be more than twenty thousand rupees. Out of the immoveable properties sought to be partitioned, Schedule B properties worth Rs. 5500/- are situated within the Cuttack Municipality in the name of the deceased Dhirendra. Out of the Schedule C properties, lot No. 2 alone stands in the name of the Plaintiff and that is in Sambalpur and lot No. 3 of Schedule 'C' similarly stands recorded in the name of the Defendant alone and the rest of the properties are all in the name of Dhirendra. The immoveable properties have been valued at Rs. 25,300/- out of which the B schedule properties situated within the Cuttack Municipality are valued at Rs. 5,500/- only. The immoveable properties have been valued at Rs. 25,300/- out of which the B schedule properties situated within the Cuttack Municipality are valued at Rs. 5,500/- only. The moveable properties are valued at Rs. 32,700/- and all these are at Sambalpur. It is further alleged in para 29 of the plaint that: all the documents of title and other papers used to be kept with him (Dhirendra). After the death of Dhirendra the Defendant being the next elder brother became the Karta and all these documents and papers used to be kept with him and are still with him. At one time, it is said that the Defendant prevailed upon ailing Dhirendra and through intimidation and undue influence obtained a registered deed in his favour. Later, as Dhirendra recovered from illness, he got the same cancelled by another registered deed and both these deeds were registered at Sambalpur. The Plaintiff, demanded amicable partition by a registered Advocate's notice dated 1-5-1972 issued from Cuttack. To this, according to the Plaintiff, a false reply was given on 6-5-1972 substantially to the effect that the Defendant is the owner of most of the properties in the suit over which the Plaintiff had no right, title or interest. A family partition is said to have been effected at Cuttack on 1-3-1965. In the whole plaint running over 37 paragraphs the alleged amicable family settlement on 1-3-1965 and the registered Advocate's notice on 1-5-1972 are the only two allegations of any cause of action having arisen at Cuttak. The factual details of the plaint, the acquisition of property, the family nucleus, the business of the family are all within the jurisdiction of Sambalpur Court excepting the Schedule B properties mentioned above. In this setting it appears that the bulk of the evidence would be from Sambalpur and the onus would be heavy on the Defendant to establish his case. 5. Mr. Mukherjee learned Advocate appearing on behalf of the Plaintiff-opposite party stoutly opposes the petition for transfer of the suit both on point of law as well as on fact. On point of law his contentions are that: (1) If there is a specific provision for transfer, as here, u/s 22 of the Code of Civil Procedure, the general provision of Section 24, CPC is not applicable. On point of law his contentions are that: (1) If there is a specific provision for transfer, as here, u/s 22 of the Code of Civil Procedure, the general provision of Section 24, CPC is not applicable. (2) The High Courts of Allahabad, Orissa and Patna are unanimous about the legal position that the Plaintiff has to choose his own forum and that statutory right conferred on him should not be lightly interfered with. So far as facts are concerned, his contentions are that since the Defendant has not availed himself of the earliest opportunity in raising objection to the hearing of the suit at Cuttack on the ground that roost of the properties are situated within the jurisdiction of Sambalpur Court, he should not be allowed to raise it subsequently particularly when the suit is now ripe for hearing; that he is a Class I Government servant under suspension whose headquarters has been declared to be Cuttack, and therefore, the Defendant has moved the petition for transfer mischievously knowing fully well that the Plaintiff cannot leave his headquarters to pursue the litigation at Sambalpur at the cost of his service; that he has no other male member in his family to look after his wife and his only daughter; that the Defendant due to his long association at Sambalpur has developed such intimacy in the locality that he apprehends danger of his life in case he goes there and lastly that inconvenience to the Defendant is no consideration to deprive a statutory right of the Plaintiff to his prejudice. 6. In support of the legal contentions raised by Mr. Mukherjee, he relied on Dr. Rajnath Vs. L. Vidya Ram and Others, ; Purna Chandra Mahanty and Others Vs. Samanta Radhaprasana Das Lalita Rajya Lakshmi and Another Vs. State of Bihar and Another. Incidentally, he also referred to Lalbai Naran v. Shivji Ramji AIR 1953 Kut 45, Narain Das Gopal Das Vs. (Firm) Khunni Lal Lachmi Narain lays down that Section 24 CPC is a general provision empowering the High Court or the District Court, to transfer a case on the motion of any other party or on its own motion. The general power conferred by Section 24 is not to be applied where the case falls u/s 22. (Firm) Khunni Lal Lachmi Narain lays down that Section 24 CPC is a general provision empowering the High Court or the District Court, to transfer a case on the motion of any other party or on its own motion. The general power conferred by Section 24 is not to be applied where the case falls u/s 22. In that context it is said that where there is a special provision for a particular matter and there is also a general provision, the special provision should be applied. Mr. Mukherjee places great reliance on this. Here, the learned single Judge while disposing of a transfer petition filed u/s 24, CPC on the grounds contained in Section 22 of the CPC has made the above observation. As will be discussed hereinafter, this has no application to the facts of the present case. The next decision relied on by Mr. Mukherjee is Purna Chandra Mahanty and Others Vs. Samanta Radhaprasana Das which is also not applicable to the facts of this case: In that case, the husband had filed a suit in Balasore Court claiming damages while the wife had filed a suit at Cuttack claiming maintenance. This Court finally held that- Considered from the point of view of balance of convenience of all the parties concerned including the Plaintiff in the Balasore suit, the trial of both the suits at Cuttack was more desirable in the circumstances of the case; and they should be handled by a District Judge at Cuttack. While thus allowing the petition for transfer their Lordships made on observation on which Mr. Mukherjee places great reliance and that runs thus: The Plaintiff has the choice of his forum so long as the suit is not subject to the defect of want of local jurisdiction and a suit is not to be transferred from the Court where the Plaintiff chooses to institute it, merely to serve the convenience of the Defendants. There is no dispute as to the proposition of law propounded in this judgment and as such there is no justification for referring the matter to a larger Bench as contended by Mr. Mukherjee, in case I am persuaded to allow transfer. The next case i.e. Lalita Rajya Lakshmi and Another Vs. There is no dispute as to the proposition of law propounded in this judgment and as such there is no justification for referring the matter to a larger Bench as contended by Mr. Mukherjee, in case I am persuaded to allow transfer. The next case i.e. Lalita Rajya Lakshmi and Another Vs. State of Bihar and Another only says that the Plaintiff, as arbiter litis, has a right to select his own forum and his right should not be interfered with except on very strong grounds and the onus of establishing sufficient grounds for transfer lies heavily upon the Applicant. In the same judgment, their Lordships also observed that- The High Court has ample powers to pass necessary and effective orders, in appropriate, cases u/s 24. Therefore, the mere fact that on application for transfer also falls within the ambit of Article 227 of the Constitution is no ground for allowing the amendment merely ex abundanti cautela. Finally in that case, their Lordships allowed the transfer. 7. As against this, the citations relied on by Mr. Dey are firstly Narain Das Gopal Das Vs. (Firm) Khunni Lal Lachmi Narain where it is said- The power of transfer vested in the High Court or the District Court by Section 24 is untrammeled by any conditions. Section 24 is general in its terms, and the power of transfer and withdrawal defined by that is can be exercised even with respect to suits which can be entertained by one Court alone; all that is necessary to bring into play the jurisdiction of the High Court or the District Court to exercise the power of transfer and withdrawal given u/s 24 is that the suit, appeal or other proceeding sought to be transferred should be "pending before it" or "pending in any Court subordinate to it". The mere fact, that the suit, appeal or other proceeding is pending in a Court not having jurisdiction to dispose of the same, cannot oust the jurisdiction of the High Court or the District Court to withdraw or transfer that suit, appeal or other proceeding from the Court in which it is pending to some other Court competent to try the same. This is quite in conformity with the spirit of Section 24 of the Code of Civil Procedure. The later decision reported in Dr. Rajnath Vs. L. Vidya Ram and Others relied on by Mr. This is quite in conformity with the spirit of Section 24 of the Code of Civil Procedure. The later decision reported in Dr. Rajnath Vs. L. Vidya Ram and Others relied on by Mr. Mukherjee has not referred to this earlier decision. In AIR 1927 219 (Nagpur), on the scope of Section 24, Code of Civil Procedure, it is said. In ordering transfer of a case the convenience of the parties is not merely a relevant but also a material consideration, and, in effect, the convenience of the parties is at the basis of all the arrangement for statutory jurisdiction on the civil side. This follows on earlier decision of the Allahabad High Court in Inayat Ullah Khan v. Nishar Ahmed Khan AIR 1922 All. 65. That was a partition suit as is the instant case. There it was observed thus: Where in a portion suit the greater part of the property is situated in a district held, that this is a reason why it should be advantageous to both parties a like to have the suit tried in the district. The mere fact that the majority of the individual parties reside there, is not a very weighty consideration in favour of the transfer that a party has engaged a counsel with heavy fees is a circumstance to be considered when ordering transfer of a case. In Thirmala Reddy Mahalakshmamma Vs. Mulkluri Murlidahar Rao and Others which directly dealt with Section 24, CPC it was observed: A plea that since the Defendant-Applicant had alleged that the Court at Narasarao pet had no jurisdiction to try the suit, the suit could not be transferred from that Court, was overruled. The language of Section 24 of CPC is very wide and there are no restrictions or impediments in the way of the High Court exercising the power of transfer merely because there is a dispute regarding jurisdiction. 8. The points that emerge from the above citations can be formulated thus: (1) Mere inconvenience of a party is no ground for allowing the petition for transfer. (2) Convenience of not one party but of both the parties should be taken into consideration and much more so in a partition suit. (3) The powers of the High Court or of the District Court in allowing a transfer u/s 24 of title CPC are untramelled and there are no restrictions on the same. 9. (2) Convenience of not one party but of both the parties should be taken into consideration and much more so in a partition suit. (3) The powers of the High Court or of the District Court in allowing a transfer u/s 24 of title CPC are untramelled and there are no restrictions on the same. 9. Applying the above principles to the facts of this case, the Defendant Petitioner appears to have a formidable case. Admittedly all the moveable properties are in Sambalpur district and so too most of the immoveable properties. There is no averment in the plaint that the parties are residents of Cuttack. From the trend of allegations in the plaint, it is abundantly clear that all the properties were acquired while the family stayed at Sambalpur and carried on business there. The documents of tide to the immoveable properties lie at Sambalpur. The Defendant yet resides at-Sambalpur. The Plaintiff at the beginning of his career was a servant at Sambalpur. According to his own admission he was making over his earnings to his eldest brother Dhirendra who is now dead. The Plaintiff, as a Government servant, is subject to transfer to different places in course of his service. It is by accident that, when posted at Cuttack he has been placed under suspension and his headquarters has been declared to be Cuttack. In this background, ordinarily the partition suit should have been filed at Sambalpur. But since a portion of the immoveable properties, however insignificant it might be lies within Cuttack Municipality, filing of a partition suit at Cuttack is not statutory barred. True, the Defendant had entered appearance, filed written statement and did not file any petition for transfer of the case at his earliest opportunity to Sambalpur. But that I do not think would estop him for all time to come to move a petition as contemplated u/s 24 of the Code of Civil Procedure. 10. At the time of hearing, taking into consideration the nature of evidence that would be adduced in the instant case and the onus; I suggested if the Defendant is agreeable to adducing his evidence at Sambalpur while the Plaintiff would be free to adduce his evidence at Cuttack. To this, Mr. Dey for the Defendant agreed. But when the same was opposed to Mr. To this, Mr. Dey for the Defendant agreed. But when the same was opposed to Mr. Mukherjee for the Plaintiff, he contended that the Defendant not having raised any objection at the initial stage can at this stage only be given the concession to get his witnesses examined by commission. This I mention to show the attitude of the parties towards a fair decision of the dispute between them. I may add here that the suit has not reached a stage of bearing as alleged by the Plaintiff, for he has served a fresh set of interrogatories and has also sought for amendment of the plaint which only indicates that he is up to dragging on the litigation than ending it. 11. To conclude, there being no legal bar for transfer of a fit case at any stage of the proceeding and the powers of the High Court u/s 24 of the CPC being unfettered the technical objection raised on behalf of the Plaintiff-opposite party that it is belated is hardly tenable. Further that is also contrary to the spirit of Section 24, Code of Civil Procedure. 12. So far as the facts of the case are concerned, as already indicated, the thick of the fight would be at Sambalpur. True, mere inconvenience to a party, I am aware, is not a factor to weight while considering a case of transfer but convenience of both the parties certainly is. It is the duty of the Court to see that a party does not gain on undue advantage over his adversary unfavorably circumstanced, and steals a march over him. In other words it is the prime duty of the Court to see that justice is done and not injustice is done in the name of justice by putting a party under a handicap. This transfer petition is resisted as mischievous, calculated to put the Plaintiff in double jeopardy, namely, if he goes to Sambalpur contrary to the Government direction, he would lose his job and if he does not, he would lose his suit that the Plaintiff is apprehensive of danger to his life at Sambalpur and that there are none to look after his wife and, minor daughter here at Cuttack. These grounds appear as more fanciful than real and frivolous too. 13. These grounds appear as more fanciful than real and frivolous too. 13. In the circumstances, therefore, regard being had to the convenience of both the parties, most of the suit properties being at Sambalpur, where most part of the evidence has to be tendered, and in case of success of the Plaintiff, the execution of the decree being given effect to at Sambalpur, I consider it to be a just and fit case where the petition for transfer should be allowed. However, it is left open to the Plaintiff to move the Court where it would be pending trial, if he so desires, to examine his witnesses by commission a concession which he was only prepare to extend to the opposite party. 14. In the result, therefore, the petition is allowed. The case records in Title Suit No. 79 of 1972 pending in the Court of the Subordinate Judge, Cuttack be transferred to the Court of the Subordinate Judge, Sambalpur for disposal according to law from the stage where it is now pending. Parties shall bear their own costs. Petition allowed. Final Result : Allowed