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parties, if they desire to be heard, shall determine in which of the Courts having jurisdiction the suit shall proceed. This section applies to H. C.
23. Where such Courts are subordinate to different Procedure where Appellate Courts, but are subordinate to they are not so subor- the same High Court, any defendant, after
giving notice in writing to the other parties of his intention to apply to the High Court to transfer the suit to another Court having jurisdiction, may apply accordingly. If the suit is brought in any Court subordinate to a District Court, the application, together with the objections, if any, filed by the other parties, shall be submitted through the District Court to which such Court is subordinate. The High Court may, after considering the objections, if any, of the other parties, determine in which of the Courts having jurisdiction the suit shall proceed.
This section applies to H. C. It does not apply to the Jhansi division.
Applications under this section should be made by petition and affidavit-Khatija vs. Taruk Chunder, 13 C. L. R., 182; I. L. R., 9 Cal.,
24. Where such Courts are subordinate to different High Procedure where they Courts, any defendant may, after giving
notice in writing to the other parties of different High Courts.
his intention to apply to the High Court within whose jurisdiction the Court in which the suit is brought is situate, apply accordingly.
If the suit is brought in any Court subordinate to a District Court, the application, together with the objections, if any, filed by the other parties, shall be submitted through the District Court to which such Court is subordinate,
and such High Court shall, after considering the objections, if any, of the other parties, determine in which of the several Courts having jurisdiction the suit shall proceed.
Act VIII, 1859, section 13. This section applies to H. C. It does not apply to the See the case of Skinner vs. Orde, I. L. R., 2 Alla., 241 ; 6 Ind. App., 126.
This section does not empower a High Court to transfer a suit, but only to declare in which Court it should proceed, and if necessary to stay proceedings within its own jurisdiction—Tala Ram vs. Harjiwan, I. L. R., 5 Alla., 60. 25. The High Court or District Court may, on the
application of any of the parties, after giving
notice to the parties and hearing such of them as desire to be heard, or of its own motion without giving such notice, withdraw any suit, whether pending in a
are subordinate to
Transfer of suits.
Court of first instance or in a Court of Appeal subordinate to such High Court or District Court, as the case may be, and try the suit itself, or transfer it for trial to any other such subordinate Court competent to try the same in respect of its nature and the amount or value of its subject matter.
For the purpose of this section the Courts of Additional and Assistant Judges, shall be deemed to be subordinate to the District Court.
The Court trying any suit withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
Act VIII, 1859, section 6. This section applies to H. C. and P. S. C. C. Not to the Jhansi Division, Ajmere or Merwara-Reg. 1 of 1877, sections 2 & 26.
Practice.-This section applies to cases of winding up Companies under Act VI of 1882– West Hopetown Co., I. L. R., 9 Alla., 180. As to the power of a village Munsif trying a case under Reg. IV of 1816, to transfer, see the case of Lakshmakka vs. Bali, I. L. R., 8 Mad.. 500.
Punjab.-Commissioners and Deputy Commissioners may exercise the powers of a District Court, and these may be delegated to Subordinate Judges-Act XVIII of 1884, sections 34, 37 & 38.
Court of First Instance.-If the Court of first instance has no jurisdiction to hear the suit, this defect is not cured by transferring the case to another Court having jurisdiction--Pachaoni vs. Ilahi Baksh, I. L. R., 4 Alla., 478, and no order of transfer should be made-Peary Lall vs. Komal Keshore, I. L. R., 6 Cal., 30; Ledgard vs. Bull, 13 Ind. App., 134 ; Sankumani vs. Ikoran, I. L. R., 13 Mad., 211; Queen-Empress vs. Mangal, I. L. R., 10 Bom., 274; unless by consent of parties-Petman vs. Bull, I. L. R., 5 Alla., 377; see, however, Ledgard vs. Bull, supra; Jagjivan vs. Mugdum, I. L. R., 7 Bom., 487, and the consent must be such that the Court will infer that the defendant did in point of fact waive all objections and engage that the cause should be tried on its merits by the second Court - Ledgard vs. Bull, 13 Ind. App., 134.
On what grounds a Suit should be Transferred.-Section 6, Act VIII of 1859, contained a clause to the effect that any suit instituted might be withdrawn by the District Court whenever it might see sufficient cause for so doing. Under this section it has been decided that the power given to a Zillah Judge for the withdrawal of suits from the Subordinate Courts should only be exercised upon cause shown and ordinarily not without opportunity given to the parties to the suit to be heard upon the question.
Notice.- Want of notice does not render the transfer void.-Sankumani vs. I koran, I. L. R., 13 Mad., 211.
Remanded Suit.-Under Act VIII the District Court could not withdraw from the Subordinata Court suits which the Subordinate Court had received by order of remand from a Court to which the District Court was itself subordinate, unless the higher Court had, by its order of remand, so changed the original character of the suit remanded as to make it in effect a new suit--Mahomed Zahoor Ali vs. Thakooranee Rutta, 2 Alla., 481; see, however, Tarucknath Mookerjee vs. Gouree Charn, 3 W. R., 147.
High Court.--The High Court did not transfer a case from a Court which had jurisdiction to try it, where no application had been made to the Judge of the latter Court, nor any notice given to the plaintiff — Kristo Dass Koondoo vs. Issur Chunder, 11 W. R., 189.
The 13th section of the Letters Patent (1865) of High Court at Fort William gives the Court power to order a suit to be transferred for trial, only where the transfer is agreed on by the parties, or for the purposes of justice, and in the absence of agreement it must be made out that there will be inconvenience amounting to this-that if the case be tried in the Court in which it was originally tried, the trial will be unsatisfactory. The mere fact that it would be less expensive to try the case in the High Court is not sufficient of itself for the Court to act upon and order the case to be transferred-Rajah Ojooderam Khan vs. Nobinmoney Dossee, 1 Ind. Jur., N. S., 396; but where, on a motion to transfer, it appeared that the parties and witnesses resided in Calcutta, that it would be cheaper to try the suit there, and that the parties appearing on the motion consented, a transfer was ordered-Payn vs. Administrator-General, 1. L. R., 5 Cal., 766 ; and
see Jotendronauth vs. Raj Kristo, I. L. R., 16 Cal., 771. It is no objection to the trial of a case transferred under this section that the transfer order was founded on a misconception-Ram Bux vs. Girdharee Lall, 2 Agra, 178.
Minor.-As to the application of a next friend when no guardian ad litem has been appointed, see Jotendronauth vs. Rajkristo, I. L. R., 16 Cal., 771.
At what stage a Suit may be Transferred.-Section 6, Act VIII of 1859, referred to suits instituted and did not authorize the transfer of proceeding already com. menced and entertained; and consequently a District Judge had no authority to call up an execution case from the file of the Subordinate Judge to his own CourtMoulve Abdool Hye vs. Macrae, 23 W. R., 1; contra-Gaya Pershad vs. Bhup Singh I. L. R., 1 Alla, 180, and see Hira Lall vs. Badri Das, I. L. R., 2 Alla., at p. 796; nor transfer it-Shaikh Hamidooddeen vs. Bhadae Sahoo, 18 W. R., 345; nor could a Judge call a up a case to his own file after the evidence had been taken in the Subordinate Court-Dumree Sahoo vs. Jugdharee, 13 W. R., 398 ; Ranee Asmud Koonuur vs. Tayler, W. R. (1864), p. 14 ; Syud Korshed Ali vs. W. Tayler, W. R. (1864), p. 15. But the Code differs from Act VIII of 1859, and extends to all pending cases, but the High Court, of Calcutta still adheres to the previous view-Kishori Mohun vs. Gul Mahomed I. L. R., 15 Cal., 177 ; otherwise in Allahabad-Bandhu Naik vs. Lakhi Kuar, I. L. R., 7 Alla., 342, and see section 191, post; and in Bombay-Balaji vs. Ranchoddas, I. L. R., 5 Bom., 680. If a part-heard case is transferred, it cannot be decided on the evidence taken in the first Court-Bandhu Naik vs. Lakhi Kuar, I. L. R., 7 Alla., 342; but see section 191, post.
Subordinate Court.- This section does not enable a District Judge to transfer a suit pending before himself to a Subordinate Court--Sakharam vs. Gangaram, I. L. R., 13 Bom., 654 ; but still he is competent to transfer the execution of a decree which has been passed by his own Court to the file of the Subordinate Judge for disposal, section 223, post-—Bishemun vs. Land Mortgage Bank, 12 Ind. App., p. 11.
As to the case of an Assistant Judge, see The Assistant Collector vs. Ardesir, I. L. R., 16 Bom., 277.
Court of Small Causes.-See Mangal Sen vs. Rupchand, I. L. R., 13 Alla., 324.
A Small Cause Court suit was instituted before a Judge invested with jurisdiction to try it. He retired from office, and the District Judge directed his successor, who had no Small Cause Court jurisdiction to try it : Held, the order must be considered as passed under this section, and no appeal lay from the decision to the District Court-Kauleshar vs. Dost Muhammed, I. L. R., 5 Alla., 274. See also Nagireddi vs. Ramanna, I. L. R., 7 Mad., 592.
Order.-Every suit requires a separate application to transfer-Kishori Lall vs. Luchman Doss, 2 N. W. P., 147. As to the presumption when there is no order on the face of the proceedings, see Sheo Pershad vs. Kastura, I. L. R., 10 Alla., 119.
Revision.-An order passed under this section will not be interfered with in revision; an appeal lies from the final decree-Farid vs. Dulari, I. L. R., 6 Alla., 233.
Judicature Acts, Order 16, Rule 1, altered. This section applies to H. C. and P.S.C.C. xworch moduhind hole in English once. In in English me Hamay v. Smurthwaiti. 1893188.8.131.522. Shijpen modka dhilimetbille laining and to forie. Boven.b.9. huwww.dis,
Plaintiffs in respect of the same cause of Action. The corresponding rule in England is not limited by the words “same cause of action,” which mean not only the act complained of, but the right violated-Nusserwanji vs. Gordon, I. L. R., 6 Bom., 266, p. 275 ; but apparently they are implied in it-Lingammal vs. Venkatammal, I. L. R., 6 Mad. 239, p. 243. Reading this section with section 45, post, it appears that the Code does not authorize the joining of plaintiffs in a suit in respect of distinct causes of action in which they are not jointly interested, and their interests are not merely conflicting but antagonistic. The words " in the alternative" apply to cases in which there is a doubt as to the person entitled to sue upon the cause of action-Lingammal vs. Venkatammal, I. L. R., 6 Mad., 239, p. 243 ; (compare-Fakirapa vs. Rudrapa, I. L. R., 16 Bom., 119); and if one of two plaintiffs can sue for the claim and the second plaintiff is added as a matter of caution there is no misjoinderBachubai vs. Shamji, I. L. R., 9 Bom. 536, p. 547; but where thirteen persons who were committed to jail under one warrant sued jointly seeking damages for illegal detention, the plaint was taken off the file-Ali Serang vs. Beadon, I. L. R., 11 Cal., 524. So where six persons jointly sought a declaration that certain proceedings of a District Temple Committee removing them from office were illegal, the plaint was returned-Ramanuja vs. Devanayaka, I. L. R., 8 Mad., 361 ; on the other hand, where the managers of a temple passed a rule restraining the right of persons to enter the temple, it was held all could join in the suit for an injunction-Kalidas vs. Gor Parjaram, I. L. R., 15 Bom., 309, and several members of a caste have been allowed to join in a suit against trustees for maladministration-Thakersey vs. Hurbhum, I. L. R., 8 Bom., 432, p. 450. A suit against a company and its directors, by the agents, two of whom were shareholders, the plaintiffs were not allowed to join a cause of action based on the agreement with a cause of action common to only two as shareholders-Nusserwanji vs. Gordon, I. L. R., 6 Bom., 266, p. 275; and where a Hindu widow and
her adopted son
sued together to recover family property, the suit was disallowed, as the claims of the mother and son were conflictingLingammal vs. Venkatammal, I. L. R., 6 Mad., 239, p. 243.
Charities.-The Advocate-General is entitled to carry on all suits in the High Court for the administration of charitable funds, and to appear and represent the Crown in them if brought by another party-Attorney-General vs. Brodie, 4 Moore, 190 ; Wardens of Nossa Senora vs. Hartmann, Perry's O. Cases, 333; Advocate-General vs. Damodhar, id., 526. See Panchcowrie Mull vs. Chumroolall, I. L. R., 3 Cal., 563 ; Thakersey vs. Hurbhum, I. L. R., 8 Bom., 432. Several persons can join in a suit under section 539, infra.
Foreign States-recognized by the Government of this country-can sue in their recognized names-U. S. vs. Wagner, L. R., 2 Ch. App., 582; U. S. vs. McRae, L. R., 3 Ch. App., 79, but none else-Republic of Chili vs. Rothschild, W. N. (1891) 138. A suit for property belonging to a Rajah cannot be brought in the name of his Political Agent-Girdhari Das vs. Poulett, I. L. R., 2 Alla., 690.
Joint Interest.-All persons who entered into the contract should be made plaintiffs, even though they form a joint Mitakshara family--Ramsebuk vs. Ramlall Koondoo, I. L. R., 6 Cal., 815 ; Kalidas vs. Nathu, I. L. R., 7 Bom., 217, but see Shirekuli vs. Ajjibal, '1. L. R., 15 Bom., 297. Thus a member of a Hindu family carrying on an ancestral money-lending business, who is not the managing member, cannot sue for a family debt-Jugalkishore vs. Hulasi Ram, I. L. R., 8 Alla., 264 ; but if the contract is in the name of one, he can sue-Bungsee Singh vs. Sudist Lall, 10 C. L. R., 263 ; Unni Nambiar vs. Nilakandan, I. L. Ř., 4 Mad., 141, even though he be a minor in an undivided Hindu family-Yeknath Ramchandra vs. Waman, I. L. R., 10 Bom., 241, and generally where there is no evidence-Ragho Vinayak vs. Sheikh Daud, I. L. R., 13 Bom., 51, and nothing on the face of the contract to show that the person named in it is not acting in his individual capacity he can sue-Jaghabhai vs. Rustamji, I. L. R., 9. Bom., 311. The rule in England is that all persons having a joint interest must join in an action at law, but in equity it is sufficient if all interested in the subject of the suit should be before the Court, either in the shape of plaintiffs or defendants-Wilkins vs. Fry, 1 Mer., 262; Sandes vs. Dub. Tram. Co., 12 L. R., Ir., 206 ; Guru Prashad vs. Ras Mohun, 1 C. L. R., 431, and one of several mortgagees or trustees can maintain a suit, making the others co-defendants, if they are unwilling to be joined as plaintiffs, or have done some act which precludes them-Luke vs. South Ken. Hot, Co., 7 C. D. 789; 11 O. D., 12; Kalidas vs. Nathu, I. L. R., 7 Bom., 217, and in the case of Droarkanath Mitter vs. Tara Prosunna, I. L. R., 17 Cal., 160 a suit was dismissed because persons who had a joint interest were made defendants, without any allegation in the plaint that they had refused, and in Parameswaran vs. Shangaran, I. L. R., 14 Mad., 489, a suit by one of two unless the other being joined as defendant was dismissed, as there was no evidence that the latter had asserted an exclusive right to sue or had been consulted in regard to the suit; but in Van Gelder vs. Sowerby Society, 44 C. D., 374, where the plaintiffs would not apply, but would not object to placing a person as defendant whom the Court considered should be a co-plaintiff, the Conrt of Appeal considered it was the duty of the Judge to place him on the record as defendant and not to dismiss the suit; see p. 394. See also Barton vs. North Staffordshire Ry. Coy., 38 C. D., 458, p. 465; Kendall vs. Hamilton, 4 App. Cas., 504, p. 516. The Indian Courts follow the equity practice-Unni vs. Nilakandan, I. L. R., 4 Mad., 141 ; Arunachala vs. Vithialinga, I. L. R., 6 Mad., 27; Omasundari vs. Halder, 9 C. L. R., 13; Phoolbas Koonwur vs. Jogeshur, 3 Ind. App., 7, p. 25.
Where a document creates a joint obligation, all the parties should be on the recordGopal Chunder Goohoo vs. Juggodumba Dossia, 10 W. R., 411; Ramjoy Sing v. Nagur Ghazee, 5 W.R., Act X, 68; and it is the same if the obligation is created by law. Thus one of the heirs of a Hindu cannot sue for his share of a debt due to the deceased Kandhiya Lal vs. Chandar, I. L. R., 7 Alla., 313; but a surviving partner can sue for a partnership debt-Gobind vs. Chandar, I. L. R., 9 Alla., 486 ; this rule is not fol. lowed by the Calcutta High Court-Ram Naraian vs. Ram Chunder, I. L. R., 18 Cal., 86, (compare Mohini Mohun vs. Bungshi Buddan, I. L. R., 17 Cal., 586,) though it is in Madras-Parameshvirane vs. Shangaram, I. L. R., 14 Mad., 489. See note under section 32, infra.
Joint Family.-So in a suit to recover ancestral property, all the members of a joint family should sue together; those only who refuse should be made defendantsRajaram Terari vs. Luchmun Pershad, 12 W. R., 478; Collector of Monghyr vs. Hurdai Narain, I. L. R., 5 Cal., 425, and they cannot sue through some or one of their membersBalkrishna vs. Municipality of Mahad, I. L. R., 10 Bom., 32; Hori Gopal vs. Gopaldas, I. L. R., 12 Bom., 158. Nor can one member of an undivided family sue to establish a right of easement, unless he be the kurta, and sue as such; otherwise, all the members must be on the record as plaintiffs or defendants-Arunachala vs. Vithialinga, I. L. R., 6 Mad., 27 nor is he entitled to recover on a bond in favour of his undivided father, deceased, without the production of a certificate under Act VII of 1889, unless it appears on the face of the bond that the debt was due to the joint family of father and sonVenkataramanna vs. Venkayya, I. L. R., 14 Mad., 377.
KARNAVAN.-A Karnavan can alone sue for tarwad property.-Byathamma, I. L. R., 15 Mad., 19.
Third Person.-To entitle a third person not named a party to a contract to sue on it, he must have a beneficial right under it, that is to say, a right to call upon a party to have the contract enforced and to protect his right-Gandy vs. Gandy, 30 C. D., 57, and compare In re Cameron, 37 C. D., 32.
Suit in Another's Name.- A person can sue on a bond in the name of another party if he shows by oral evidence that the debt secured by the bond was money advanced by him or by the party, in whose favour the bond was executed in his behalf- Deva Rau vs. Venatesa Achariyar, 1 Mad., 452 ; but the manager of an indigo concern cannot sue in his own name on a contract executed with a previous manager, and in which he has no personal interest-Glascott vs. Gopal Shaikh, 9 W. R., 254.
Benamidar.-In mere personal demands such as Bengal bonds the suit may be brought in the name of the person whose name is on the instrument, though he has no real interest in it, and the real owner can sue, but in a suit for property on title the real owner must sue-Gopeekrist Gosain vs. Gunga persad, 6 Moore, 53, at p. 72 ; Hari Gobind vs. Akhoy Kumar, I. L. R., 16 Cal., 364.
Rent.-In a suit in regard to an undivided fraction of rent, the other co-proprietors should be made parties-Obhoy Gobind vs. Hurychurn, I. L. R., 8 Cal., 277 ; nor can one sharer sue alone to enhance his fractional portion of rent, at least unless the other sharers have refused to join as plaintiffs, and then they should be made defendantsGopal vs. Macnaghtan, I. L. R., 7 Cal., 751 ; Jogender
Chunder Ghose vs. Hurris Chunder, 10 C. L. R., 331; Kali Chandra vs. Rajkishore, I. L. R., 11 Cal., 615 ; nor can one sharer sue for a ka boolyat of his share where the tenure is joint-Guni Mahomed vs. Moran, I. L. R., 4 Cal., 96 ; Jogendro Chunder vs. Nobin Chunder, I. L. R., 8 Cal., 353. But see Rashbehari Mukerji vs. Sakhi Sundari, I. L. R., 11 Cal., 614, and I. L. R., 5 Cal., 902. Under the new Tenancy Act all the proprietors must be plaintiffs in a suit for additional rent or to enhance-Gopal Chunder vs. Umesh Narain, I. L. R., 17 Cal., 695; or to make an application under section 158 of that Act-Moheeb Ali vs. Ameer, I. L. R. 17 Cal., 538.
Forfeiture.-In a suit on a condition to re-enter all the parties suing must join as plaintiffs-Reasut Hossein vs. Chorwar, I. L. R., 7 Cal., 470; contra --Ebrahim vs. Cursetji, I. L. R., Il Bom., 644 ; so one sharer can not bring a suit to avoid an undertenure-Droarkanath Pal vs. Grishchunder, I. L. R., 6 Cal., 827.
Agent.-A Karayama Samudayam cannot sue in his own name in suits on behalf of the Devaswam-Unni vs. Nilakandan, I. L. R., 4 Mad., 141. Nor can a gomashta sue for rent in his own name--Kunjo Behari vs. Purno Chunder, 12 C. L. R., 55. So in a suit for declaration of title against a zemindar, the zemindar and not his karindah should be made a party-Madhao Rao Apa vs. Thakoor Pershad, 3 Agra, 127. So also a manager appointed under Act XXXV of 1858, cannot sue in his own name for possession of the lunatic's property-Nemava vs. Devandrappa, I. L. R., 15 Bom., 177.