- (1.) The Western U. P. Electric & Power Supply Co. Ltd. hereinafter called the appellant filed on February 25, 1965 suit No. 2 of 1965 in the court of the Civil Judge at Mainpuri against the respondent Company for a decree for Rs. 94,708/25. The amounts claimed consisted of two items. Rs.3Q,24/25 being the charge for electrical energy consumed during February and March 1962 and Rs. 64,467/- being the minimum guarantee from 1st April to 30th September, 1962. On February 26, 1965 the respondent Company filed suit No. 113 of 1965 in the court of the Senior Sub-Judge Delhi against the appellant, for a decree for Rs. 309620/91 claimed as compensation for loss arising from defective supply, refund of security deposit etc. On September 28, 1965, the respondent Company moved an application before the High Court of Allahabad for transfer of the suit pending before the Civil judge Mainpuri to the court of the Sub-Judge at Delhi. On 24-3-1967 Seth J. directed that "Suit No. 2 of 1965 pending in the court of Civil Judge at Mainpuri x x be transferred to the court of learned Sub-Judge 1st Class Delhi". The appellant thereafter applied for recalling the order on the ground that the condition precedent to the application of Sections 22 and 23 of the C. P. Code did not exist and the High Court had no jurisdiction to transfer the suit pending in the Mainpuri court to a court not subordinate thereto. The learned Judge then raised an issue: "whether Hind Lamps Ltd., has a subordinate office at Delhi and whether it carries on business in Delhi or not - and called for a finding thereon from the Civil Judge Mainpuri. The Civil Judge submitted his finding that Hind Lamps Ltd. had "a branch office at Delhi and was carrying on business in Delhi." The learned Judge, however, did not state the date on which the branch office of Hind Lamps was opened in Delhi.
(2.) At the hearing before the High Court Counsel for the appellant conceded that the Allahabad High Court had jurisdiction to transfer the Mainpuri suit to the court of Sub-Judge, 1st Class, Delhi. On that concession Seth J. declined to recall the order dated 24-3-1967.
(3.) Several contentions are raised in support of this appeal. It is urged that the Allahabad High Court was incompetent to transfer the suit pending in the court of the Civil Judge, Mainpuri to a court not subordinate to it unless the suit could competently be instituted in the court of the Subordinate Judge Delhi. Section 22 of the C.P. Code provides: "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 of the objections of the other parties (if any), shall determine in which of the several courts having jurisdiction the suit shall proceed." Section 23 sets out the courts in which the application under Section 22 may be made. It provides : 23. (1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under Section 22 shall be made to the Appellate Court. (2) Where such Courts are subordinate to different Appellate. Courts but to the same High Court, the application shall be made to the said High Court. (3) Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate." The Court of the Civil Judge Mainpuri is subordinate to the High Court of Allahabad. But the application under Section 23(3) could be granted only if the suit in the Mainpuri Court could have been filed in the Court of the Subordinate Judge, Delhi, and for reasons of convenience it was just to transfer the suit.;