ORDER
Curgenven, J.
1. This is an application to transfer a suit upon a promissory note which was instituted by the endorsee of the note in, the Court of Small Causes, Madras, on 3rd November 1926. The suit was first decreed ex parte on the 30th November 1926 and subsequently restored on the 2nd February 1927. A preliminary point has been taken that under Section 22, Civil P.C., it is incumbent upon the defendant who seeks a transfer of the suit to make his application at the ” earliest possible opportunity ” and that this condition was not complied with here. It appears that after the setting aside of the decree on the 2nd February an application was made on the 5th for a revocation of the leave granted to file the suit in Madras and that this application was eventually dismissed on the 25th February. The defendant came here with this petition on the 3rd March 1927. I do not think it would be reasonable to have expected him to have moved before the 5th February when the suit was formally restored on the 2nd February, although it is true that a conditional order was made for the restoration as early as the 7th January. I’ do not, therefore, clearly understand the reasoning of the learned Small Cause Court Judge where he finds that the application before him was liable to dismissal on the ground of delay. It is then for consideration whether the time taken by that proceeding may properly be excluded in considering whether there was delay in coming up here. My attention has been directed to Shiv Datt v. Motiram A.I.R. 1925 Lahore 322 where an application of this nature was rejected on the ground that defendant instead of coming at the earliest opportunity to the High Court had challenged the jurisdiction of the lower Court; but that case is distinguishable from the circumstances here, because here there seems to have been no contention that the cause of action did not arise in Madras but the revocation was rather sought because it was just and expedient to try the case elsewhere, which I take to mean that considerations of convenience should be allowed to weigh. When the law provides facilities for obtaining a transfer by proceedings before the trial Court, I do not think it can be said that in taking such proceedings a party has been guilty of delay and has not come here at the earliest opportunity. I think, therefore, that in this respect the terms of Section 22 may be deemed to have been observed.
2. On the merits, the defendant’s case is that the note was obtained from him without payment of consideration and that it was assigned for the purpose of being sued upon to the brother-in-law one Srinivasa Aiyangar, who negotiated the execution of it, and that the endorsee is not a bona fide holder. It may be the case that the defendant has to examine witnesses to prove these contentions in Tanjore and that his accounts which are there in one of the Courts may have to be produced. I have been shown a number of authorities with regard to the test to be applied as to whether or not a transfer of a suit should be ordered. There is the extreme view taken by Knox, J., in Irshad Hussain v. Gopinath [1919] 41 All. 378, namely that the mere convenience of the parties is not a good reason for ordering a transfer and that such an order should rather be made in view of the personnel of the Judge than personnel of the parties. I do not think that this view, without more qualification has been accepted in subsequent decisions as a correct view of the scope of Section 22. But undoubtedly in the cases which have been brought to my attention it has been held that the burden lay very heavily on the defendant to show that consideration of convenience should outweigh the cardinal principle that it is the right of the plaintiff as arbiter lites: Roop Chand v. Gokul Chand A.I.R. 1924 Lah. 249.
3. Two cases were cited for the petitioner in which transfers have been ordered on balance of convenience, namely, Banarsi Das v. Kishire Lal A.I.R. 1923 Lah. 383 and Harendra Lal Roy v. Sama Mangala [1897] 24 Cal. 183. It appears to me that in both these cases the balance of convenience for a transfer was almost overwhelming in character. On a consideration of the circumstances of this case as they are to be gathered from the affidavits, I am not satisfied that this test will succeed here. I have stated what the defendant’s case is but I am unable to say whether it is true or a false case, and it appears to me that one should rather look to the allegations of the plaintiff than that of the defendant in considering an application of this description. The plaintiff who lives in Madras claims to be a bona fide holder in due course and to prove that a certain part of the evidence must be derived from Madras. Considering all the circumstances, therefore, I am not prepared to transfer the case to Tanjore. The C. M. P. No. 945 of 1927 will, therefore, be dismissed with costs one set. C. M. P. No. 1168 of 1927 is also dismissed.
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