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Mr. Srinivasan, J.—The petition for transfer is filed by the plaintiff in O.S. 286 of 1978, Sub Court Pondicherry which is one for dissolution of a partnership firm having the name Crystal Transport Services, and other reliefs. The respondents herein, who are the defendants in the suit are contesting it on the ground that the partnership is not one at will and it will continue so long as two partners survive for doing business. Accepting the said contention, the trial court dismissed the suit as not maintainable. On an appeal by the petitioner, the District Court, Pondicherry, set aside the judgment and decree of the trial court, holding that the partnership was dissolved even prior to the institution of the suit and remanded the matter to the trial court for considering the other reliefs claimed in the plaint. Aggrieved by the decision that the firm was dissolved prior to the suit, the petitioner approached this court in S.A.1686 of 1984. By judgment dated 21.8.1987, I allowed the second appeal and dismissed the memorandum of cross objections filed by the respondents on the view that the partnership was not dissolved prior to the suit and the suit for dissolution was maintainable. As the suit was already nine years old and the merits of the case were not till then considered by either of the courts below, I gave a direction to the trial court to dispose of the suit on or before 31.12.1987. The records were despatched by this court in September 1987. Yet the suit was not listed till 31.12.1987. Ultimately it was listed for hearing on 15.2.1988, and according to the affidavit filed in support of the application for transfer, the deponent was able to impress upon the court officers only after great difficulty the necessity for including the case in the list. But on 18.2.1988, the petitioner filed this application for transfer of the suit to the file of any other Sub Courts in the State of Tamil Nadu. The relevant averments in the affidavit are as follows�
I state that the second respondent herein is the wife of the present Chief Minister of Pondicherry and who is also in charge of the courts. Mr. T. Murugesan, advocate, appeared for the petitioner in this suit as well as appeal before the District Court. Mr. T. Murugesan is the present Government Pleader of the Government of Pondicherry and is also a member of the Congress (I) Party, Pondicherry. In view of his connection with Chief Minister Mr. Murugesan expressed his inability to conduct the case on behalf of the petitioner. I am the brother of Mr. Farook Marikar, and there are other suits between me and my brother pending in this Hon''ble court. The suit filed by me and by the petitioner herein were of the year 1978 and the suits were dismissed on preliminary issues as to its maintainability. Two of the matters are pending in this Hon''ble High Court. In view of the refusal of Mr. T. Murugesan to appear for the petitioner and myself, I sought the assistance of one Mr. C.P. Thirunavukarasu, R. Vaidyanathan, Mr. A. Gandhiraj and Mr. Sundaramurthi, leading advocates in Pondicherry. The above lawyers also expressed their inability to appear in the case in view of the fact that I am contesting the matter as against the Chief Minister of Pondicherry. Under the above circumstances; I am obliged to file this petition for transferring the suit pending before the Sub Court, Pondicherry to any Sub Court in the State of Tamil Nadu. This Honourable High Court has jurisdiction to transfer the suit to any of the courts within the State of Tamil Nadu. In fact the petitioner filed transfer petition (Civil 587 of 1987) on the file of the Supreme Court of India for transferring O.S. 286 of 1978 from the file of the Sub Court, Pondicherry to any other State. The transfer petition was filed on the ground that the Chief Minister may use his position and power to see that the petitioner will not get justice from the Court expeditiously. As I stated already, the Chief Minister is also in charge of the Courts and therefore I sought for the transfer. The petition was dismissed. Subsequently I decided to conduct the suit before the Sub Court itself. Now I find that the advocates are not inclined to take up my matter in view of the fact that my opponent is the Chief Minister of Pondicherry. In fact the above suit was directed to be disposed of before 31.12.1987. The records were sent back from this Hon''ble High Court even in September 1987. However, the suit was not listed for hearing till 31.12.1987. Only after great difficulty I was able to impress upon the Court officers to list the case and now the suit is listed for hearing on 15.2.1988. In view of the fact that Mr. T. Murugesan has expressed his inability to appear on behalf of the petitioner, I approached a number of advocates and now that they are also not willing to appear against the Chief Minister, I am seeking the relief of transfer.
Notice was ordered to the respondents on 12.1988 by Sivasubramaniam J and the fourth respondent was served on 25.2.1988 while the second respondent who is the main contesting party was served on 3.3.1988. When the matter was called on 2.3.1988, the respondent who has by then entered appearance through counsel prayed for time to file counter and the court granted two weeks. When the matter came before me on 16.3.1988, there was no representation on behalf of the respondents and I found that no counter affidavit had been filed on behalf of the respondents. After hearing learned counsel for the petitioner I started dictating the order. At that stage, learned counsel for the respondents rushed into the court and prayed for time till 21.3.1988 for filing counter. As learned counsel stated that he was questioning the power of this court to transfer the case in Union Territory of Pondicherry to a court in the State of Tamil Nadu, I thought fit to grant one more opportunity to the respondents and posted the matter peremptorily to 21-3-1988. On 21.3.1988, when learned counsel for the second respondent was in the midst of his arguments, the counter affidavit was handed over to the court officer. I have narrated these facts only to show that the respondents are playing dilatory tactics in this court too.
As regards the averments made in the affidavit of the petitioner, in support of the application for transfer, the counter affidavit of the second respondent denies that the Chief Minister of Pondicherry had anything to do with the proceedings. Having already extracted the relevant portions of the petitioner''s affidavit, it is better that the relevant portion in the counter affidavit is also extracted herein�
....It is true that my husband is the Chief Minister of Pondicherry. But it is not true that he is in charge of the courts as expressed in the affidavit of the petitioners. It is true that Mr. T. Murugesan is the present Government pleader appointed by the Government of Pondicherry on the recommendations of the District Judge. The appointment was made on merits impartially by the Government of Pondicherry. It is also true that Mr. T. Murugesan also happens to be member of Cong-I party not only now, but even long before the institution of the suit in O.S. 286 of 1978. It is not true that Mr. Murugesan has any connection with the Chief Minister and this respondent is not aware that Mr. T. Murugesan expressed his inability to conduct the case on behalf of the petitioner. It is true that petitioner''s husband is the brother of my husband and I am not aware whether there are other suits between her husband and my husband pending in this Hon''ble court. I am not aware whether the suit filed by the petitioner''s husband were of the year 1978 and the suits filed by her husband were also dismissed on preliminary issues as to its maintainability and that two of the matters are pending in this Hon''ble court. I am also not aware whether Mr. T. Murugesan has refused to appear for the petitioner and her husband and that he sought the assistance of Mr. C.P. Thirunavukarasu, R. Vaidyanathan, or A. Gandhiraj and T. Sundaramurthi leading advocates in Pondicherry. I submit that in Pondicherry there are more than 230 advocates on record, and the four advocates'' names mentioned in the affidavit are not the only leading advocates in Pondicherry. I do not admit whether those four advocates were approached by the petitioner and they expressed their inability to appear in the case in view of the fact that the petitioner has contested the matter against the Chief Minister of Pondicherry.
Again in paragraph 6 of the counter affidavit, following averments are found�
...There is no allegation that my husband in exercise of his office as Chief Minister of Pondicherry abused the position and interfered with the administration of justice and influenced the court to decide the matters against the petitioner. There is also no allegation that the presiding officer is likely to be influenced by the fact that the Chief Minister of Pondicherry happened to be my husband. I submit that allegations of the nature in the affidavit in support of the petition cannot be a ground for transfer of the petition.
Learned counsel for the respondent at the outset contended that this court has no power to transfer a proceeding from a court in Union Territory of Pondicherry to a court in the State of Tamil Nadu. According to him, this court can transfer a proceeding in a court in Union Territory of Pondicherry only to another Court in the Union Territory of Pondicherry and not outside the Union Territory. In support of this contention, learned counsel drew my attention to Art. 230(1) and Art. 231(1) of the Constitution of India, which read thus:�
Extension of jurisdiction of High Courts to Union Territories-: (1) Parliament may by law extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from any Union Territory.
Establishment of a common High Court for two or more States�(1) Notwithstanding anything contained in the preceding provisions of this Chapter, Parliament may bylaw establish a common High Court for two or more States and a Union territory.
Then he referred to Sec. 9 and 10 of the Pondicherry (Administration) Act XLIX of 1962 which are in the following terms:�
As from the 6th day of November 1962, the jurisdiction of the High Court shall extend to Pondicherry.
10(2) Without prejudice to the generality of the provisions of S.9, the High Court shall have, in respect of Pondicherry all such jurisdiction as under the law in force immediately before the appointed day was exercisable in respect of the former French Establishments by the Cour De Cassation, the Cour Superior D'' Arbitrage and the Conseil D'' Etat of France;
Provided that while determining appeals from decisions of courts and tribunals in Pondicherry, the High Court shall as far as may be, follow the same procedure and have the same power to pass any judgment, decree or order thereon, as it follows and has while determining appeals from decisions of courts in the State of Madras.
(3) All appeals and other proceedings from or in respect of any judgment, decree or order of any court or tribunal in the former French Establishments pending immediately before the appointed day before the Cour De Cassation or the Cour Superior D'' Areitrage or the Conseil D'' Etat of France and all original proceedings in relation to those Establishments pending immediately before the appointed day before the Conseil D'' Etat shall, by virtue of this Act stand transferred to the High Court and shall be disposed of by the High Court in the exercise of jurisdiction conferred on it by this Act, as if such appeals and other proceedings had been filed before the High Court;
Explanation-: All appeals and other proceedings filed before the appointed day but not transmitted to the Cour De Cessation or the Cour Superior D'' Arbitrage or the Conseil D'' Etat shall be deemed to be appeals or proceedings as the case may be pending before that court for the purposes of this sub-section.
Though learned counsel for the second respondent conceded that S.24 C.P. Code will apply to Courts in Pondicherry also, he contended that the provisions of S.24 C.P. Code are circumscribed by the provisions of Ss.9 and 10 of the Pondicherry (Administration) Act and, therefore, this Court cannot transfer a proceeding from a Court in Pondicherry to a court outside the Union Territory of Pondicherry. S.24 C.P. Code in so far as it is relevant reads thus�
General power of transfer and withdrawal� (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be made, or of its own motion without such notice, the High Court or the District Court may at any stage�
(a).........
(b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
The language of S.24 C.P.C, is very clear in that the High Court is empowered to transfer any proceeding pending in any court subordinate to it to any other court subordinate to it. S.9 and 10 of the Pondicherry (Administration) Act do not in any manner curtail the power of the High Court under S.24 C.P.C. Nor do the provisions of Art. 230(1) and Art. 231(1) of the Constitution of India support the contention of learned counsel for the respondents. There is no basis for the contention advanced by learned counsel for the respondents in any of the aforesaid provisions of law.
Learned counsel referred to the decision of a Division Bench of this Court in Ramasrinivasan in re 77 L.W. 132 (D.B.)= 1964 2 M.L.J. 194. That case arose out of a suit proceeding under S.4(1) (r) (2) of the Criminal Procedure Code before the First Class Magistrate, Karaikal (Pondicherry State). As the Magistrate dismissed the petition, a criminal revision was presented in this Court and on the question of jurisdiction of the court in entertaining the revision, the Division Bench observed that they were competent to entertain the revision under S. 439 Cr.P.C. which had been extended to the Pondicherry area and that the revisional jurisdiction was available by virtue of provisions of Ss. 9 and 10 of the Pondicherry (Administration) Act notwithstanding the fact, this court was not the High Court of Pondicherry State. Far from helping learned counsel for the respondent, the decision of the Division Bench is realty one against him. Just as the Bench found that provisions of Ss. 439 Cr.P.C. could be invoked in that case, the provisions of S.24 C.P.C. can be invoked in the present case.
A somewhat similar question arose before the Andhra Pradesh High Court in Jalagam Sitarama Rao and Another Vs. The State of Andhra Pradesh, In that case, an application for transfer was filed for transferring two suits from the Agency court to the court of Subordinate Judge, at Khammam. A preliminary objection was raised that the CPC did not apply to Agency area or Agency courts and that in any event, the transfer of a suit pending in an Agency court could be made only to another Agency Court and not to a Civil Court. That objection was overruled by the Division Bench of the Andhra Pradesh High Court holding that under S.1(3) and (4) C.P. Code, the Code was applicable to the Agency areas also. After referring to the provisions of S.24 C.P. Code, the Bench observed that S.24 C.P. Code among others empowers the High Court to transfer any suit, appeal or other proceeding pending in any subordinate court to any court Subordinate to it and competent to try and dispose of the same and that for the exercise of that power by the High Court, the suit, appeal or other proceeding must be pending before a court subordinate to the High Court. The Bench proceeded to hold that the Agency Court was a court subordinate to the High Court and held that the High Court had power to transfer the suit pending in the Agency Court either to another Agency court or to a civil court.
Learned counsel for the respondent submitted that the petitioners had filed an application for transfer on the same ground before the Supreme Court of India and it was dismissed in limine. It is urged that it is not open to the petitioners to apply for transfer on the very same grounds before this Court after the dismissal of the transfer petition by the Supreme Court. Even in the affidavit filed in support of the application for transfer, there is a clear reference to the filing of the transfer petition in the Supreme Court and its dismissal. But, it is stated that after the dismissal of the petition by the Supreme Court the petitioner decided to conduct the suit before the I Additional Sub Court Pondicherry, and her counsel Mr. T. Murugesan expressed his inability to appear on behalf of the petitioner. It was also added that a number of advocates were approached and they were not willing to appear against the Chief Minister. In view of the subsequent change in circumstances, the order of the Supreme Court dismissing the application for transfer filed by the petitioner will not be a bar to the present application in this court.
Learned counsel for the second respondent ultimately contended that there is no ground for transferring the proceeding as prayed for by the petitioner on the basis of the allegations made in the affidavit filed in support of the petition. Learned counsel submitted that the apprehension expressed in the affidavit is baseless. He relied upon the averments in the counter affidavit to the effect that there are 230 advocates in Pondicherry and that just because four or five advocates refused to appear for the petitioner, it would not provide a ground for transfer of the proceedings to a place outside the Union Territory. He also submitted that the convenience of both the parties should be considered before any order of transfer is made and all the parties and witnesses being in Pondicherry, it will be highly inconvenient and it will cause great hardship if the proceeding is transferred to a court in Tamil Nadu. He placed reliance on the decision of the Punjab High Court in Jyotsna Raje Vs. Jagpal Singh, wherein it was observed that in deciding an application for transfer the convenience of the parties in the conduct of litigation is a relevant consideration and the convenience is that of both the parties and not only of one of them. He invited my attention to the decision of the Judicial Commissioner of Oudh in Allahabad Bank Ltd Fyazabad v. Thaka Bakkish Singh 1924 Oudh. 372. In that case, one of the parties engaged a number of pleaders and presumably paid their fees or portions thereof. The petitioner before the court could not engage any of the leading members of the Bar and the court was informed that even the two gentlemen of the Bar of standing and position who were not retained by the opposite party, refused to accept the brief of the petitioner. The Judicial Commissioner observed that even in those circumstances, he was not prepared to transfer the proceedings from Fyzabad altogether where it was pending in the court of the Subordinate Judge and ultimately passed an order of transfer to the court of the District Judge of the same place from the court of the Subordinate Judge.
The grounds on which the power under S.24 C.P.C. should be exercised have been the subject of consideration by this Court as well as the other High Courts on earlier occasions. In Mula Naramma Vs. Mula Rengamma, Srinivasa Iyengar J. held that where a transfer is applied for on the ground that an impartial hearing of the case and proper adjudication could not be obtained because the Judge hearing the case had shown himself as prejudiced against or in favour of one side or the other, all that had to be ascertained was whether the allegation of the absence of an unprejudiced judicial mind is true in fact then and there and any enquiry into the causes that brought about such a state of things would not only be irrelevant but also be calculated to misdirect. The test prescribed by the learned Judge was to find out whether there is a reasonable ground for supposing that the judicial attitude of the Judge concerned towards the party in that case was in any way, manner or measure affected. He held that in the absence of such reasonable ground or apprehension being made out, a petition for transfer should not be ordered.
In Annamalai Chettiar v. S. Rm. Ar. Ramanathan Chettiar 42 L.W. 945= AIR 1936 Mad. 55, a Full Bench of this Court dealt with an appeal against an order made under clause 13 of the Letters Patent transferring a suit from the file of the Sub-Court, Devakottai, to the Original Side of this court ''in the interest of purity of administration of justice''. The Full Bench upheld the order of transfer. On the facts of that case, it is seen that even after five years after the institution of the suit the trial had not commenced as the parties were challenging every order of the lower Court by civil revision petition in the High Court. In that content, the Full Bench observed as follows�
We are not trying to apportion the blame between the plaintiff and the defendants, but the fact remains that the interests of justice demand that the trial of a case of this nature should not be indefinitely prolonged. On the Original Side of the High Court orders for inspection and discovery are made as a matter of course, and even in the heaviest of suits, it is inconceivable that by any kind of contrivance the trial of action can be postponed by the propriety of every interlocutory order being called in question. In this unfortunate case this is precisely what has happened. At the end of five years the trial of the case has not commenced; in the meantime several orders have been made and several revision petitions have been disposed of. In an order made by Madhavan Nair and Pandrang Row, JJ. in the course of this litigation, they made some trenchant observations in regard to the delay caused in the trial of the suit. The order of the learned Offg. Chief Justice refers not only to considerations bearing on the speedy disposal of the suit but to other matters also. In making an order of the kind in question, the High Court is not bound merely to consult the convenience of the parties; indeed, as we have already observed, clause 13 Letters Patent expressly enacts that for purposes of justice the High Court may make in order of transfer suo motu. The learned Offg. Chief Justice says in his order that he feels constrained to transfer the suit ''in the interest of purity of administration of justice''. But such considerations as these have no necessary relation to arguments based on convenience; they transcend any personal grounds which it may be open to a party to urge.
In the same judgment, the Full Bench pointed out earlier that Cl. 13 Letters Patent enacts that reasons shall be recorded for the order of transfer. S.24 C.P.C. contains no such limitations upon the power of the High Court.
A single Judge of Patna High Court in Lalita Rajya Lakshmi and Another Vs. State of Bihar and Another, enunciated the following proposition�
Therefore, if there are circumstances in a case, which raise a reasonable apprehension in the mind of the person applying for transfer that he would not receive fair dealings at his trial, or in other words, that he may not have a fair and impartial trial and may not get justice in the court, where the suit is pending, the case should be transferred. In such a case, in order to decide whether the facts and circumstances are sufficient to raise such a reasonable apprehension in the mind of the party applying for transfer, the court should put himself in such a party''s arm-chair; and then alone the court is at liberty to place himself in the position of, and, the same situation in which, the party himself stood, with the knowledge of all the facts with which the party was acquainted, and, then only the court can see and judge for himself how these facts would have affected the party''s mind and, if they are reasonable and sufficient to raise the reasonable apprehension complained of in the mind of even a reasonable person.
A Division Bench of the Madhya Pradesh High Court in Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand Saraswati Vs. Ramji Tripathi and Others, , held that the onus of establishing sufficient grounds for the transfer lies heavily on the applicant. According to the Bench, the preponderance of balance of convenience is of prime consideration for transfer of suit and interest of justice is another factor that has to be taken into account. It was laid down that a case has to be transferred if there was reasonable apprehension of a party to a suit that he might not get justice in the court where the suit is pending and that may be because the trial Judge was prejudicial or because in the surcharged atmosphere no fair trial was possible at that place.
Bearing these principles in mind if the facts of the present case are considered, it cannot be held that the apprehension of the petitioner that she may not get justice in the court in which the matter is pending is wholly unreasonable. Without casting any aspersion on the First Additional Subordinate Judge, Pondicherry, on whose file the suit is pending, if the cumulative effect of all the circumstances in the case is taken into account, the interest of justice would be better served if the suit is transferred To the Principal Subordinate Judge of the same court. As seen from the decision of the Full Bench of this Court, the interest of purity of administration of justice is of prime importance. In the present case, while disposing of the second appeal 1686 of 1984 I had begun my judgment with these words�
It is very unfortunate that a suit for dissolution filed in 1978 has been disposed of by both the courts below without evidence being recorded or merits being going into, but on different grounds and on different reasoning.
That is why I have concluded my judgment with a specific direction to the First Additional Subordinate Judge to dispose of the suit on or before 31.12.1987 and sent a report to this Court to that effect. If the First Additional Subordinate Judge could not complete the proceedings before the prescribed date, he should have sent a report to this Court explaining the circumstances and praying for extension of time. He has not done so till now. Even assuming that the First Additional Subordinate Judge, Pondicherry could not complete the trial before 31.12.1987, as directed by this Court, for reasons beyond his control, he could have at least included the case in the special list. Even that was not done at all and the case was included only in the list for 15.2.1988. Though there is no specific allegation against the First Additional Subordinate Judge, that his judicial attitude towards the petitioner has been affected in any manner, I am of the opinion that the apprehension of the petitioner that he is not likely to have fair trial before that court is reasonable.
However, there is no basis for the allegation that the Chief Minister may use his position and power to see that the petitioner does not get justice from the courts in Pondicherry. There is absolutely nothing in the affidavit filed in support of the petition that there was any attempt on the part of the Chief Minister to use his position and power and interfere with the administration of justice.
The fact that four or five senior lawyers of the place expressed their inability to appear on behalf of the petitioner would not justify the transfer of the proceedings to a court outside the Union Territory. It is nowhere stated in the affidavit filed in support of the transfer petition that none of the senior lawyers of Pondicherry had agreed to accept the brief. Within a distance of 15 miles from Pondicherry, the Headquarters of South Arcot district, (Tamil Nadu) viz., Cuddalore is situate and there are number of senior lawyers available there. If the petitioner is not able to engage any competent lawyer in Pondicherry, she can easily engage one from Cuddalore without incurring much extra expenditure. Nor is the petitioner prevented from taking a lawyer from the City of Madras. It is not as if the petitioner will not be in a position to conduct the case in Pondicherry in a proper manner. I do not find any justification for transferring the proceedings to a place outside Pondicherry.
Hence, the petition for transfer is ordered to this extent that the suit O.S. 286 of 1978 which is on the file of the First Additional Subordinate Judge, Pondicherry, is transferred to the file of the Principal Subordinate Judge of Pondicherry to be disposed of by him. The Principal Subordinate Judge, Pondicherry shall include the suit in the list for trial on 11.4.1988 and proceed with the suit from day to day. The trial should be completed and judgment to be delivered on or before 15.7.1988. The Principal Subordinate Judge shall send a report to this Court with regard to the same. If the Principal Subordinate Judge is not able to complete the trial on or before the aforesaid date, he shall send a report to this Court explaining the circumstances under which he could not complete the trial and seek extension of time from this Court. The parties hereto are directed to appear before the Principal Subordinate Judge of Pondicherry on 11.4.1988 for proceeding with the trial. In the result, the petition for transfer is ordered to the extent indicated above and there will be no order as to costs.