- (1.) There are two applications before me for transfer of two suits; one filed before Sealdah Court and the other before Howrah Court, to this Court under Clause 13 of the Letters Patent. From the facts it would appear that series of proceedings have been taken in respect of a School named Jewish Girls School having its office at 63, Park Street, Calcutta. One Dr. (Miss) Subha Mitter was appointed principal of the said school and thereafter serious allegations were made by the members of Board of Management of the said School against Dr. (Miss) Subha Mitter for mismanagement, defalcation of accounts and appointment of a person to post of Vice-principal not properly qualified, with ulterior motive so on and so forth. Ultimately Dr. (Miss) Subha Mitter was removed from the said post which entailed numerous suits and proceedings in this court and in other courts. A list of the said proceedings are given in the petition itself. Ultimately the matter went up to the Supreme Court of India. An Administrator was appointed over the said school, pursuant to the order of the Appeal Court of this High Court an election was duly held and duly published on the papers and there have been six elected members to the New Board of Management. In spite of the said election there was dispute and differences and they are not allowed to function normally and properly not only because of the various proceedings taken out by Dr. (Miss) Subha Mitter in her own name but also in the name of others interested which unlawful with the normal running of the school is in the serious jeopardy (sic) and considering the facts and circumstances of the case and balance of convenience it is prayed before me that the present two suits filed in Howrah and Sealdah Courts are nothing but another move by Dr. (Miss) Subha Mitter with one Mr. Ezra Jacob and Elias Sasoon to thwart and hamper the smooth running of the said school.
(2.) Mr. Pratap Chatterjee appeared on behalf of the petitioner submitted that under these facts and circumstances this suit should be transferred and tried under the extraordinary civil jurisdiction of this Court under Clause 13 of the Letters Patent.
(3.) Mr. Bireswar Bhattacharyya appeared on behalf of the Respondents and submitted that this application is not maintainable; as such this should be dismissed. His submission before me is that I sitting singly in the Original Side have no jurisdiction to entertain such an application as it should be disposed of by a Division Bench of this Court in the Appellate Side which has only jurisdic-tiun to entertain such application. He referred to Sectionss 2, 9, 11 and 13 of the Charter Act, 1861, Sections 101, 106, 10V and 115 of the Government of India Act, 1915, Sections 219, 220 and 224 of the Government of India Act, 1935 and submitted that the Court which has superintendence over the other Courts can have such jurisdiction to transfer such suit in this High Court and according to Mr. Bireswar Bhattacharyya it is the Appellate Side of the High Court which has the superindence over the other courts so a Division Bench sitting in the Appellate Side have jurisdiction to entertain such application and no other courts. Mr. Bhattacharyya, however, conceded that there is the practice of moving such application in the Original Side of this High Court but such practice is not warranted by law; as such no order should be paased by me on this application. Mr. Bireswar Bhattacharyya also submitted that after laborious research he could not lay his hand on any case on this point decided by this High Court but he can only rely on a case reported in (1915) ILR 39 Bom 604 (FB) where the Full Bench of that High Court held "the Appellate Side of the Bombay High Court has jurisdiction to transfer a case under Clause 13 of the Letters patent." It would appear that the submission of Mr. Bireswar Bhattacharyya that there is no reported decision of this High Court in this point is not correct in view of the case reported in (1865) 4 Suth WR Miscellaneous Appeals 7 where a Division Bench of this High Court presided over by J. Loch and F. A. Glover JJ. which held that "An application to the High Court to remove a case from the District Court and try it in a court of extraordinary original jurisdiction under Section 13 of the Charter Act should be made to a Judge sitting on the Original Side of the High Court and further held that the Judges sitting on the Appellate Side of High Court have no authority to pass orders under Section 13 of the Charter Act and such application should be made to a Judge sitting on the Original Side of the High Court who will determine whether the case should be cailed upon from the District Court or not." Moreover in the case reported in (1912) 22 Mad LJ 187 a Division Bench of the Madras High Court held "The High Court is competent to deal with transfer application of a suit from the file of the Presidency Small Cause Court under its extraordinary original jurisdiction under Clause 13 of the Letters Patent and such application cannot be disposed of by a Division Bench sitting on the Appellate Side". The learned Judges came to the conclusion that an application for transfer should be made to a Judge sitting on the Original Side. According to Clause 13 of the Letters Patent, the power to transfer is exercised by High Court as a court of extraordinary original jurisdiction. Moreover from the High Court Rules (Ormonds, 41st Edition, page 146) there is an observation by E. C. Qrmond that application under Clause 13 is made to a Judge sitting on the Original Side and reference has been made to Doucett v. Wise (1866) 1 Ind Jur 94; Clarke v. Brojendro Kishore Roy Chowdhury (Fletcher J.), 29th Jan., 1908 (Cal); Satyendra Chandra Ghose Moulik v. Arun Chandra Singha (Chaudhuri J.), 10th July, 1917 (Cal). The Bombay High Court has specifically framed rules for disposal of such application; as such under the said rules, only a Division Bench of the High Court in the Appellate Side has been given jurisdiction to entertain such an application. From our High Court. Rules it would appear that there is no Rule framed whatsoever in our High Court Rules for entertainment of such application save and except only it is provided that a list should be maintained for all extraordinary suits transferred under Clause 13. Clause 13 provides that in extraordinary original civil jurisdiction the High Court of Judicature at Fort William in Bengal shall have power to remove and try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Bengal Division of the presidency of Fort William, subject to its superintendence, when said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court. This clause is exactly the same as the Clause 13 of the Letters Patent of 1862. Whenever any complicated question of law is involved or that the interest of the applicant will be prejudiced unless the case is transferred or where the witnesses and parties reside in Calcutta or that it would be less expensive to try the suit here, those factors are taken into consideration while ordering for transfer of suit. When the question of transfer "for the purpose of justice" arises it must be determined by reference to the circumstances of each case and the balance of convenience arising out of peculiar facts and circumstances of the case is one of the matters for consideration. Although except the case reported in 4 Weekly Reporter (Southern Land) there is no direct case on the point but it would appear from the cases; that Sambhu Nath Banerjee J., P.B. Mukharji, C. J. D.N. Sinha, C. J. sitting singly in the original side have transferred suits from the District Court to this High Court under Clause 13 of the Letters Patent. In those cases although the question did not arise whether the learned Judges sitting in the Original Side had jurisdiction to transfer suits under Clause 13 but in fact such orders were made and from the case (Smt. Asrumati Debi v. Rupendra Deb) it would appear that an appeal was preferred to the Supreme Court of India. It has been held there that such order is made by a single Judge of the Original Side of the High Court under Clause13 of the Letters Patent and in that case the question of appealability of an order passed under Clause 13 of the Letters Patent was considered. In the year 1948 an application was made before Banerjee J. sitting singly in the Original Side for transfer of suit under extraordinary original civil jurisdiction from the court at Jalpaiguri to this High Court. An order was made wherefrom an appeal was preferred before a Division Bench of this High Court presided over by Harries C. J. and Das J. which was dismissed on the ground that such an order is not a judgment within the meaning of Clause 15 of the Letters Patent. Therefrom an appeal was preferred to the Supreme Court of India and the decision of the Division Bench was upheld by the Supreme Court of India. The maintainability of the application before a single Judge sitting in the Original Side under Clause 13 of the Letters Patent was not disputed nor decided. From the cases quoted above it would appear that there is an established practice of this High Court to move an application for transfer under Clause 13 before a single Judge sitting in the Original Side and in the case reported in AIR 1927 Cal 290 it was held by Rankin C.J. and C.C. Ghose J. that 'A Judge of the Original Side is not a court subordinate to the High Court but is a High Court itself and so an application for transfer of a suit before it will not lie before a Bench of the same High Court." In that case the learned Judge declined to lay down any principle which would interfere with the settled practice of the Court. The decisions reported in AIR 1934 Mad 314 and AIR 1929 Mad 29 also held "That an application under Clause 13 should be made to the Original Side of the High Court for transfer of suit." In the case a single learned Judge entertained application for transfer of suit under the Letters Patent. In the case reported in AIR 1923 Rang 185 (Jupiter General Insurance Co. v. Abdul Aziz) a Division Bench of the said High Court held "An application for removal of a suit to the High Court should be entertained by a Judge of the Original Side and in that respect craved reference to the case reported in (1897) ILR 24 Cal 183 (Harendra Lall Roy v. Sarvamangala Dabee decided by Ameer Ali J.) and the case also referred to the case reported in (1865) 4 Suth WR Miscellaneous Appeals 7 (Thomas Robert Doucett v. Josiah patric Wise).;