JUDGMENT
S.K Jha, J.
1. The defendants of Money suit No. 6 of 1970, pending in the court of the Subordinate Judge II, Gaya, are the petitioners. They have made a prayer for the transfer of Money suit No. 6 of 1970 aforesaid from Gaya to the court of First Subordinate Judge, Patna, where Money suit No. 96 of 1968 filed by the petitioners is pending.
2. The short facts giving rise to this application under Section 24 of the Code of Civil Procedure are these:
In 1968, petitioners instituted a Money Suit No. 96 of 1968 in the Court of Subordinate Judge at Patna, praying as the main relief a decree for Rs. 14 000/-to be passed in their favour against
Shri Kumar Burendra Shahi who is the opposite party in this application. That suit was based mainly on the following allegations:
The plaintiff No. 1 (the present petition No. 1) lives at Patna in his own house at the Dak Bungalow Road and the plaintiff No. 2 (petitioner No. 2 here) is his widow daughter, who has been living mostly with petitioner No. 1 along with her children. The defendant (the present opp. party) is the younger brother of late Rajendra Shahi with whom the petitioner No. 2 has been married and who died in 1955 leaving her and his five sons as his heirs. The opposite party was separate from his said brother Rajendra Shahi. After the vesting of the zamindari under the provisions of the Bihar Land Reforms Act, 1950 the opposite party felt the necessity of tapping some new source of income to support his living, therefore, he took to transport business of carrying goods and passengers by trucks and buses. The funds were acquired by borrowing from financier on hypothecation of the trucks and buses. In order to keep his trucks and buses running, the opp. party felt the necessity of selling his lands and house. At first he sold some lands in village Nauranga to petitioner No. 2 for a sum of Rs. 10,000/- under a sale deed dated 17.3.1959. Again he mortgaged the remaining lands in that village to petitioner No. 2 under a deed dated 20.5.1959 for a sum of Rs. 22,000/- which she took in the name of her sons. The business of the opp. party, however, did not prove to be prosperous and to recoup the loss and to recover his financial stability, the opp party started the business of supplying Chassis for trucks and buses to those who deposited the money with him. This also, however, proves to be a failure and the opp. party incurred heavy debts. In order to clear off those debts he sold his remaining interest in the land of village Nauranga to the petitioner No. 2 for a sum of Rs. 38,000/- under a sale deed dated 118 1961 out of which the sum of Rs. 22,000/-was set-off towards the previous mortgage dues of plaintiff No. 2 (Petitioner No. 2). In spite of the aforesaid transactions, opp. party was not free from all the debts nor was he in position to keep the buses and trucks in a running condition. Petitioner no 2 owns and possesses a house in Mohalla Buniyadganj, which had
partly been acquired by her husband from his mother by a registered deed of gift and partly by petitioner No. 2 herself under a registered sale deed dated
3.3.1963. for a sum of Rs. 31,500/- executed by the opp. party and his mother Murat Mati Kuer The opposite party having been left with no other house at Gaya took the said house on rent from petitioner No. 2 on a monthly rental of Rs. 300/-with effect from 1.7.63. As the opposite party had to run the transport business he requested the petitioner for sufficient money to run the aforesaid business and to help him to maintain himself and his family members. The opposite party had no security against which money could be advanced and therefore the opposite party suggested that the daily income of the bus which would ply between Chatra and Ranchi would be deposited with the petitioners after meeting the necessary expenses of the bus business. It was further agreed that the proceeds from the business so deposited every day would be utilised towards the satisfaction of the debt of the petitioner as also some others. In pursuance of an agreement arrived at between the parties at Patna, the opposite party executed and got registered an agreement of Rs. 20,000/- in favour of petitioner No. 1 on 19.7.1963 at Gaya, out of which a sum of Rs. 6,000/- being the estimated cost of repairs of the body and engine of the bus was to be spent over the same to make the Bus bearing registration no. BRN. 4214 in a running condition. But actually the cost of repair of the bus and other payment made to opposite party exceeded the estimate and as stipulated in the agreement the petitioners spent in all a sum of Rs. 28,020-50 paise which became due from the opposite party to the petitioners when the bus began to run. For some time the savings from the said business began to be deposited in the bank account of petitioner No. 1 at Ranchi, who made direct payments either to the opposite party or to persons on behalf of the opposite party by issuing cheques on the Ranchi bank and from time to time petitioner No. 1 used to transfer money from Ranchi bank to be joint account of the petitioners at Patna. From time to time the opposite party having needed money the petitioners went on accommodating him, but ultimately a sum of Rs. 14,000/-is said to have remained due to the petitioners against the opposite party. The cause of action of the aforesaid suit is said to have arisen on 1.12 1967, when the transaction between the parties came to an end and on 15.1.1968 when the demand for the last time is said to have been made by the petitioners and refused by the opposite party at Patna.
3. It seems two years later the opposite party instituted Money suit No. 6 of 1970, which as already stated earlier, is pending in the court of Subordinate Judge II, Gaya. In this suit the reliefs sought by the opposite party are passing of the preliminary decree of account’s against the petitioners and for the appointment of a Commissioner to take accounts from the petitioners and on submission of the account to pass a final decree in respect of such sums as may be found due to the opposite party from the petitioners. From a perusal of the plaint of that suit, a copy of which has been marked annexure-1 to this application, it appears that it is in relation to the same subject-matter of dispute which has been raised in Money Suit No. 96 of 1968, pending in the court of Ist Subordinate Judge at Patna. The cause of action for this suit is said to have arisen on 196.1963 when the agreement between the parties is said to have been executed at Gaya on 3oth July, 1967, when the petitioners are alleged to have declined to give account at Gaya.
4. It is abundantly clear that the facts giving rise to the two suits, whatever may be the truth, are the same and the matter that falls for consideration in the subsequent suit filed at Gaya is also substantially and materially in issue in the earlier suit filed by the petitioners at Patna. The ends of justice, therefore, require that both the suits be heard by the same court at Patna where the earlier suit had been instituted. In spite of due service of notice on the opposite party, no one appeared to contest this application. On the aforesaid facts and in the circumstances. I think it just and proper that Money suit No. 6 of 1970, pending in the court of the Subordinate Judge-II at Gaya be transferred to be tried along with Money suit No. 96 of 1968 in the court of the learned 1st Subordinate Judge, Patna. It is accordingly directed that the two suits be heard together by the learned 1st Subordinate Judge, Patna. The rule is made accordingly absolute. There shall, however, be no order as to costs.