Kadambini Baiji of Zindabahar Lane, Dacca vs Madan Mohan Basack of 26, Daccapati, Barabazar, Calcutta

This is an application under sec. 25 of the CPC for the transfer of a case from the Court of Small Cause at Calcutta to the Court of the District Judge or Subordinate Judge of Dacca. The Defendant represents that such a transfer will tend to the convenience of both parties, more specially herself.

It has been contended for the Plaintiff that this Court has no jurisdiction to make such a transfer. Reference has been made to sec. 13 of Act I of 1895, and it has been contended that the only way in which a case can be removed from the jurisdiction of the Court of Small Causes is under the procedure provided by that section. It has further been contended that any jurisdiction which this Court may possess to remove or transfer a case from the Calcutta Court of Small Causes belongs to it only in the exercise of its Original Jurisdiction, and that this Bench has therefore no jurisdiction to interfere in this matter.

We think that there is no doubt that we have jurisdiction, sitting as a Bench on the Appellate Side of the Court, to make the order of transfer which we have been asked to make. Under sec. 8 of the Civil Procedure Code, sec. 25 of the Code extends to suits or proceedings in the Court of Small Causes in Calcutta. Sec. 6 of Act XV of 1882 provides that the High Court shall have, in respect of the Small Cause Court " the same powers as it has under 24 and 25 Vic., Cap. 104, sec. 15, in respect of Courts subject to its Appellate Jurisdiction." Sec. 15 of 24 and 25 Vic., Cap. 104 empowers the High Court to direct the transfer of any suit or appeal from any such Court; that is, any Court which may be subject to its Appellate Jurisdiction, "to any other Court, having equal or superior jurisdiction." It seems to us plain from these provisions of the law, not only that we have the power to make the transfer but that we have the power in the exercise of our Appellate Jurisdiction. As regards the merits of the case we are of opinion that sufficient ground has been shown by the Defendant-, Applicant for the transfer, and we think that the affidavit filed by her has been only very imperfectly met by the counter-affidavit which has been filed by Plaintiff. We direct that the case be transferred to the file of the senior Sub-Judge of Dacca. The costs of this application will be costs in the cause. Vakil''s fee two gold mohurs.