JUDGMENT
Fawcett, J.
1. In this case a decree was passed at Calcutta against a firm in which it was alleged that the plaintiff was a partner. That decree was passed ex parts after an order had been made by the Court for effecting substituted service upon all the defendants in that suit, and the service was effected by posting the summons on the outer door of their last place of business in Calcutta and duplicates on the Notice Board of the Court. The plaintiff alleges that he was not a partner of this firm and brings a suit for a declaration that the decree is inoperative, the same having been obtained by fraud, and for an injunction restraining defendant No. 1, the plaintiffs in the Calcutta suit, from executing that decree.
2. There is no doubt that there was a cause of action for bringing this suit in the Court of the Subordinate Judge of Surat, inasmuch as the decree has been executed by that Court. According to the judgment of the Court below, the present plaintiff had paid up the amount in Court, and defendant No. 1 has received that amount after furnishing security in respect of it. Issues were raised whether the Court had jurisdiction to hear the suit, and whether (apart from the plea of jurisdiction) the plaintiff could and should be ordered to institute the suit as against defendant No. 1 in Calcutta for the reasons alleged in defendant No. 1 is written statement. The first of these the Subordinate Judge answered in the affirmative. Upon the second issue, he has held that, in exercise of the powers conferred by Section 151 of the Code, it was necessary for the ends of justice that proceedings in the suit should be stayed, on the ground that justice was more likely to be done by the suit being instituted in Calcutta.
3. Against this order of stay, the present application has been made. There can be no doubt that, if there had been a section in the present Civil Procedure Code corresponding to Section 20 of the Code of 1882, there would be jurisdiction for the order. According to that section, where a suit that might be instituted in more than one Court was instituted in a Court within the local limits of whose jurisdiction the defendant or all the defendants did not reside or carry on business or personally work for gain, the defendant or any defendant might obtain an order staying proceedings on the ground that justice was more likely to be done by the suit being instituted in some other Court, That is a provision which would have enabled the Court to have passed the order that it has, But though the Bill No. 2 of 1907, which underlies the present Civil Procedure code, contained a Clause 22 on the lines of this Section 20 (sea Gazette of India for 1907, Part v. p. 30), this clause was subsequently dropped by the Select Committee on the Bill as unnecessary, because they held that sufficient provision was made for transfer of such suits under the succeeding Clause (see Gazette of India, 1908, Part v. p. 36). This latter clause is now Section 22 of the present Code. And, under Sub-section (3) of Section 23, this Oourt has jurisdiction to order the transfer of a suit to another Oourt, even though that Court is outside the appellate jurisdiction of this Court of Venkatasa Barod v. Maksudan Das (1908) I.L.R. 35 Cal. 541. Section 22, with which Section 23 is connected, however, provides as follows :-
When 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 objection of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.
4. That being so, the proper course in this case for defendant No. 1 to take, if he wanted to stop the suit in the Surat Court, was to have applied to this Court under Sub-section (3) of Section 23 for an order that the suit should be transferred to the Calcutta High Court, That he should have done at the earliest possible opportunity, as mentioned in Section 22 of the Code. That opportunity not having been availed of, it is obvious that there is no substantial basis for holding, under Section 151 of the Civil Procedure Code, that it is necessary for the ends of justice that proceedings in the Surat Court should be stayed. The lower Court, no doubt, has followed a precedent of a suit on the Original Side of this Court, where a similar stay order was passed by Marten J.: Jethabhai v. Amarchand . But that was a case where there were very much stronger reasons than exist in the present case for saying that the suit should have been brought in the other Court and not in a Bombay court, And in any case the provisions of Sub-section (3) of Section 23 were not taken into consideration by the learned Judge. Therefore, in my opinion, there is no proper scope for resorting to the exceptional provisions of Section 151, and the lower Court’s order was made, in my opinion, without jurisdiction.
5. Accordingly, I would allow the application, set aside the order staying the suit, and direct the lower Court to take the suit up again on the current file and dispose of it according to law. As neither side brought this point of the possibility of transfer to the notice of either the Court below or this Court, we direct that costs of the application be costs in the cause.
Madgavkar, J.
6. I agree.
