SOURINDRA NARAYAN v. RABINDRA NARAYAN — 1986 DIGILAW 203 (ORI)

S. C. MOHAPATRA, J. ( 1 ) THIS is an application for transfer of the probate proceeding from the court of District Judge, Puri to the Court of District Judge, Cuttack by one of the objectors on the ground of convenience of enquiry. ( 2 ) THE opposite party filed an application under S. 276 of the Indian Succession Act, 1925 (in short 'the Act') for probate of the will purported to have been executed by the deceased Raja Sailendra Narayan Bhanja Deo at Cuttack in which the attesting witnesses were of Cuttack. The property bequeathed is situated in the districts of Cuttack and Puri. It is not disputed that most of the immovable properties and the movable properties bequeathed are in Cuttack district and the Puri court has jurisdiction to entertain the application for probate since some of the properties bequeathed are within the jurisdiction of District Judge, Puri. ( 3 ) MR. B. K. Mahanti, the learned counsel for the opposite party raised a preliminary objection that the application for transfer should not be considered since all the near relations disclosed in the application for probate have not been made parties although S. 22 of the Code of Civil Procedure (in Short 'the Code') under which the application for transfer has been filed requires notice to all the parties. ( 4 ) IN order to appreciate the preliminary objection and the grounds of transfer on merit, S. 22 of the Code is to be kept in view. It reads as follows :"22. Power to transfer suits which may be instituted in more than one Court.- Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed. " (emphasis supplied) ( 5 ) THE plain language of the Section indicates that the defendant can file the application for transfer at the earlier opportunity after notice to all the parties and the Court after considering the objection to the application is to consider to which of the courts having jurisdiction the proceeding shall be transferred. ( 6 ) THE preliminary objection of Mr. B. K. Mahanti, the learned counsel for the opposite, party is a narrow construction of the provision. Procedural provisions as in S. 22 of the Code are to be given a broad construction to meet the ends of justice and narrow interpretation defeating such a purpose is to be avoided. In the probate proceeding, the petitioner alone has appeared to object. The other two near relations have not entered appearance. The purpose of giving notice is to comply with the principle of natural justice which is the pivot of all judicial proceedings. In this case in the absence of any indication of prejudice to any of the absentee near relations who have not been made parties the technical construction advised by Mr. B. K. Mahanti to be given to S. 22 of the Code would defeat the object thereof and accordingly, I am not able to accept the same. Besides, a party should only speak about his own inconvenience and should not be permitted to be a spokesman of others unless the law permits the same. Unwarranted and unauthorised action as representative of another leads to chaos in an orderly society. ( 7 ) THE language of the Section of the Code indicates that the power to transfer a proceeding is in the discretion of the Court. This discretion is to be exercised judicially. For this purpose, it is to be kept in mind that the law gives right to the person initiating the proceeding to choose one of the several forums available and as arbiter litis he has the right to choose his own forum. This principle is recognised in the decision reported in ILR (1953) Cut 1 (Purna Chandra Mahanty v. Samanta Radhaprasanna Das), which has subsequently been followed in ILR (1968) Cut 121 (Chandra Sekhar Tripathy v. Sashibhusan Tripathy, ILR (1974) Cut 781 (Hari Charan Mitra v. Santosh Kumar Mitra) and (1985) 60 Cut LT 22 (Pitambar Padhi v. Smt. Santilata Padhi. This principle is recognised in the decision reported in ILR (1953) Cut 1 (Purna Chandra Mahanty v. Samanta Radhaprasanna Das), which has subsequently been followed in ILR (1968) Cut 121 (Chandra Sekhar Tripathy v. Sashibhusan Tripathy, ILR (1974) Cut 781 (Hari Charan Mitra v. Santosh Kumar Mitra) and (1985) 60 Cut LT 22 (Pitambar Padhi v. Smt. Santilata Padhi. Where, however, it is proved to the satisfaction of the Court that the proceeding has been initiated with an intention to put the other party to inconvenience, Court may transfer the proceeding to another forum having jurisdiction which would be convenient to both parties. In exercise of the wide power under S. 24 of the Code the proceeding can also be transferred to any other forum competent to try similar matters. ( 8 ) THE intention of the law makers is clear that the Court's power under S. 22 of the Code is to be invoked at the earliest opportunity. However, there is no prohibition for the Court to entertain an application under S. 22 of the Code even if it is delayed. Even in an application under S. 22 of the Code, Court can also exercise the wide power under S. 24 of the Code. ( 9 ) MR. S. S. Mohanty, the learned counsel for the petitioner, submitted that convenience of the parties and the situation of vast extent of properties are two weighty considerations for transfer of the proceeding. I may make it clear that each of the two considerations by itself shall not be sufficient for directing transfer. Court is to take into consideration the bundle of facts and circumstances and keep in view the public policy of quick disposal of a proceeding and the privilege granted to the initiater to exercise his choice without evil intention of putting the opposite party to inconvenience by choosing a forum. Thus, exercise of discretion being dependent on facts and circumstances of each case precedents would not be of much assistance. ( 10 ) MR. S. S. Mohanty, submitted that while considering the question of transfer under S. 22 of the Code, Court is to consider the respective advantages in respect of various Courts which have jurisdiction to hear the proceeding. He relies on the words shall determine in which of the several courts having jurisdiction the suit shall proceed. ( 10 ) MR. S. S. Mohanty, submitted that while considering the question of transfer under S. 22 of the Code, Court is to consider the respective advantages in respect of various Courts which have jurisdiction to hear the proceeding. He relies on the words shall determine in which of the several courts having jurisdiction the suit shall proceed. It requires no deliberation to hold that non-consideration would be arbitrary which is to be avoided. ( 11 ) NOW considering the matter in the light of the discussion made above, I find that the opposite party who initiated the proceeding himself applied for transfer of the proceeding to the court of Sub-Judge, Bhubaneswar. Thus, he sacrificed his choice and it can safely be inferred that in case he would have initiated the proceeding at Bhubaneswar, he would not have preferred the court of District Judge, Puri, Therefore, importance is to be given to the principle of arbiter litis in this case. ( 12 ) IT is true that existence of vast extent of property within one jurisdiction compared to others has been given importance in some decisions. That by itself would not, however, be a ground for transfer. Convenience of both the parties is to be given primary importance as has been indicated in ILR (1953) Cut 1 (supra ). If vastness of the property would be the main consideration, Sub-Judge, Kendrapara, which has admittedly jurisdiction to hear the proceeding should be the first choice. But both the parties are not preferring the said forum. Therefore, the decision reported in AIR 1935 All 979, (Mt. Basanti Devi v. Mt. Sahodra) relied upon by Mr. S. S. Mohanty cannot be of any guidance in this case. ( 13 ) IT is true that vast property is within the jurisdiction of the District Judge, Cuttack. The attesting witnesses are at Cuttack. The death was also at Cuttack. The opposite party as applicant is to prove the genuineness of the will and the petitioner challenging the will is to cross-examine the witnesses. If at all any witnesses of Cuttack are to be examined by the petitioner, there is scope for examination of the said witnesses on commission. It is well known that Cuttack court is heavier than the courts at other places. In such circumstances, there is bound to be delay in disposal of the proceeding. The submission of Mr. If at all any witnesses of Cuttack are to be examined by the petitioner, there is scope for examination of the said witnesses on commission. It is well known that Cuttack court is heavier than the courts at other places. In such circumstances, there is bound to be delay in disposal of the proceeding. The submission of Mr. S. S. Mohanty that Cuttack Court can effectively control administration of the bequeathed property is not very sound. Any Court can effectively administer the properties involved in the proceeding before it. A Court after all is not to administer the estate itself. It has to direct administration by some body. Mis-management of the property in the hands of other parties has not yet been effectively agitated. In such circumstances, I am not able to accept the grounds raised by Mr. S. S. Mohanty for transfer of the suit to the court of District Judge, Cuttack to be convenient to both parties. ( 14 ) ANOTHER contention of Mr. S. S. Mohanty, the learned counsel for the petitioner is that the parties have engaged counsel of Cuttack, who are conducting the proceeding at Puri. When there was paucity of efficient counseling at a particular place, the engagement of counsel was given importance in cases of transfer. Now, at each place efficient advocates are available to be selected by the parties. Acceptance of the submission of Mr. Mohanty in this regard would result in a party engaging a counsel at another place and then seeking for transfer of the proceeding. With knowledge that the proceeding is at Puri, counsel of Cuttack were engaged, When the parties engaged counsel of Cuttack with full knowledge of the proceeding at Puri, it is not open to submit the same to be a ground for transfer. ( 15 ) NEXT comes the question of the Puri Court and Bhubaneswar Court. Though the petitioner has not prayed for transfer of the proceeding to Bhubaneswar Court, I asked Mr. S. S. Mohanty specifically if the transfer of the proceeding to Bhubaneswar Court would be more convenient to the petitioner than being at Puri. Mr. Mohanty fairly submitted that in case the court of District Judge, Cuttack is not able to be accepted to be the forum, any Court at Bhubaneswar would be more convenient than the Court at Puri though the Bhubaneswar Court is also a heavy court. Mr. Mohanty fairly submitted that in case the court of District Judge, Cuttack is not able to be accepted to be the forum, any Court at Bhubaneswar would be more convenient than the Court at Puri though the Bhubaneswar Court is also a heavy court. At Bhubaneswar, there are two Additional District judges, one Addl. C. J. M. exercising the powers of Subordinate Judge and a Subordinate Judge. The petition of the applicant before the District Judge to transfer the proceeding to Bhubaneswar is pending. Court at Bhubaneswar can more conveniently examine the witnesses residing at Cuttack and it will be convenient for the counsel to move from Cuttack to Bhubaneswar which is hardly at a distance of 25 K. Ms. and consumes 45 minutes for journey. In that view of the matter, I direct the District Judge, Puri to transfer the matter to any of the Courts at Bhubaneswar for effective and speedy disposal of the proceeding. ( 16 ) IN the result, the application is allowed in part. There shall, however, be no order for costs. Application partly allowed. .