Dr. Subramaniam
Swamy Vs. Ramakrishna Hegde [1989] INSC 310 (18 October 1989)
Ahmadi,
A.M. (J) Ahmadi, A.M. (J) Shetty, K.J. (J)
CITATION:
1990 AIR 113 1989 SCR Supl. (1) 469 1990 SCC (1) 4 JT 1989 (4) 131 1989 SCALE
(2)860
ACT:
Code
of Civil Procedure--Section 25--Transfer of civil proceedings-Supreme Court to
be satisfied that it is expedient for the ends of justice.
HEAD NOTE:
The
Respondent had filed a suit for defamation in the Bombay High Court against the
petitioner, claiming Rupees one crore as damages for the injury alleged to have
been caused to his reputation by the publication/imputation of certain alleged
defamatory statements made by the petitioner at a Press Conference held at New
Delhi on January 10, 1989.
The
allegation in the plaint was that the petitioner levelled several accusations
at the said Press Conference which were widely circulated/reported in the
newspapers of January
11, 1989. In substance
the allegation was that the Respondent and his family members pocketed more
than Rs.300 crores through fraudulent deals in lands situate in Bangalore and other parts of Karnataka,
whereby the respondent favoured his relatives/friends, besides non-resident
Indians.
By the
instant petition, filed by the petitioner under section 25. Code of Civil
Procedure, the petitioner prays for the transfer of the said suit pending in
Bombay High Court to any Civil
Court in Karnataka,
preferably the City
Civil Court at Bangalore on the ground of forum
non-convenience. In support of the petition it is urged by the petitioner that:
(i) the
petitioner's father maintains a family house at Bangalore;
(ii) that
all the events that provide the defence to the litigation took place in
Karnataka at Bangalore;
(iii) that
the entire documentary evidence touching the alleged acts being in official
files and in private custody would be easily available in Bangalore,
(iv) that
most of the witnesses who are in the know of respondent's wrongs are residents
of Karnataka, more particularly Bangalore;
(v) that
the discovery and inspection of documents can be conveniently had in Bangalore;
(vi) that
the evidence relating to telephone tappings done at the behest of the
respondent would be available in Karnataka, and
(vii) that
the people of Karnataka State are vitally interested in the outcome of the litigation.
For
these reasons, amongst others, the petitioner prays for the Transfer of the
suit from Bombay to Bangalore.
470
The respondent while opposing the transfer of the suit contends that the
petitioner having aligned himself with the Ruling Party at the Centre was
indulging in making intemperate, slanderous and false allegations against him
with a view to maligning him and advancing the political interest of the Ruling
Party at the Centre. According to him the hearing of the suit has been delayed
as the petitioner has not filed his written statement. The respondent further
contends that being the dominus litis he was entitled to choose the forum.
Allowing
the petition, this Court,
HELD:
The Supreme Court is empowered at any stage to transfer any suit, appeal or
other proceeding from a High Court or other Civil Court in one State to a High Court or other Civil Court of
another State if it is satisfied that such an Order is expedient for the ends
of justice. [474H;
475A] The
question of expediency would depend on the facts and circumstances of each case
but the paramount consideration for the exercise of power must be to meet the
ends of justice. [476C] Words of wide amplitude-for the ends of justice-have
been advisedly used to leave the matter to the discretion of the apex court as
it is not possible to conceive of all situations requiring or justifying the
exercise of power.
[475D]
If the ends of justice so demand, the case may be transferred under this
provision notwithstanding the right of dominus litus to choose the forum and
considerations of plaintiff's convenience, etc. cannot eclipse the requirement
of justice. Justice must be done at all costs, if necessary by the transfer of
the case from one Court to another.
[476D-E]
The ends of justice in the instant case demand that the suit be transferred
from the Bombay High Court to the City Civil Court, Bangalore, where most of
the documentary evidence and the majority of witnesses are available. Since the
respondent ordinarily resides in Bangalore and was the Chief Minister of Karnataka during the period the various
acts of which he is accused of took place, the impact of the accusation would
be as much, if not more, on the readers of Bangalore. No prejudice, much less substantial prejudice would be caused to the
respondent if the suit is transferred as prayed. [477C & F-G] 471 Sanjay
Gandhi and Anr. v. Rani Jethmalani, [1979] 2 SCR 378 and Union of India v. Shrimani
Gurdwara Prabandhak Committee and Ors., [1986] 3 SCR 472, referred to.
ORIGINAL
JURISDICTION: Transfer Petition (Civil)No.. 338 of 1989.
(Under
Section 25 of the Code of Civil Procedure, 1908).
Petitioner-in-person.
V.M. Tarkunde,
P.K. Dey and Ms. Rani Jethmalani for the Respondent.
The
Judgment of the Court was delivered by AHMADI, J. Dr. Subramaniam Swamy, the
defendant in Suit No. 945/89 pending on the original side of the Bombay High
Court, has filed this petition under Section 25 of the Code of Civil Procedure,
1908 ('The Code' hereafter) read with Order XXXVI-B of the Supreme Court Rules,
1966, praying for the transfer of the aforesaid suit from the Bombay High Court
to any Civil Court in Karnataka, preferably the City Civil Court at Bangalore,
on the ground of forum non-convenience.
The
respondent Shri Ramakrishna Hegde has filed the aforesaid suit in the Bombay
High Court claiming a sum of Rupees one crore by way of damages for injury
caused to his reputation by the publication/ imputation of certain alleged
defamatory statements made by the petitioner at a Press Conference held in New
Delhi on January 10, 1989 which was attended by several members of the Press
and media specially invited to the said Conference. The allegation in the
plaint is that the petitioner levelled several accusations against the
respondent at the said Press Conference which were widely circulated/reported
in the newspapers of January
11, 1989. These
allegations have been catalogued in clauses (a) to (p) of paragraph 4 of the
plaint. It is also alleged that the petitioner had also issued a written
statement containing allegations set out in clauses (q) to (y) of paragraph 5
of the plaint and followed it up by further similar allegations made on January
12, 1989 and January 27, 1989, all of which are per-se defamatory. We need not
set out the allegations forming the basis of the suit as they are not relevant
for the disposal of this petition. Suffice it to say that the suit filed by the
respondent in the Bombay High Court is for damages for injury caused to his
reputation.
472
The petitioner is a politician who is serving his fourth term as a Member of
Parliament and is presently a Member of the Rajya Sabha having been elected to
that office on a Janta Party ticket sometime in March, 1988. He claims to have
served on various Investigative Committee of Parliament, to have received his
Doctorate from the Harvard University in USA where he later taught for almost a
decade and to have published more than 150 books, articles and research papers
on various aspects of Indian policy including economic policy of the country.
On account of this background, contends the petitioner, he was able to
understand, analyse and expose the details of the respondent's various acts of
corruption, favouritism and nepotism committed during his tenure as Chief
Minister of the State of Karnataka, at the Press Conference of January 10, 1989. In paragraph 8 of the petition the
petitioner states that he "accepts the publication of the allegations
complained of by the respondent." It is thus seen that the factum of
publication of the allegations is not in dispute.
The
petitioner, however, contends that the most appropriate place for the trial of
the suit filed by the respondent is the State of Karnataka where the various acts complained of were committed by the
respondent from time to time during his tenure as the Chief Minister of the
State.
The
grounds in support of the petitioner's contention may be summarised as follows:
the petitioner's father maintains a family house in Bangalore; all the events
that provide the defence to the litigation took place in Karnataka at
Bangalore; the entire documentary evidence touching the alleged acts being in
official files and in private custody would be easily available in Bangalore;
most of the witnesses who are in know of the respondent's wrongs are residents
of Karnataka, more particularly Bangalore; the discovery and inspection of
documents can be conveniently had in Bangalore where they are available; the
evidence pertaining to telephone tappings done at the behest of the respondent
would be available in Karnataka, Bangalore and since the people of Karnataka
are vitally interested in the outcome of this litigation, it is essential that
the suit should be tried in Karnataka and not in Bombay. It is further alleged
that if the respondent is keen on vindicating his honour he should have no
objection to the transfer of the suit to a Civil Court in Karnataka where the
suit can be disposed of more expeditiously than Bombay where the Court
calendars are clogged because of heavy backlog and a similar suit filed by Shri
A.R. Antulay, the Ex-Chief Minister of Maharashtra in 1982 has still not
reached heating. According to him, having regard to the nature of the
respondent's suit, it is doubtful if the Bombay High Court would permit it to
jump its place in the queue. It is lastly alleged 473 that since the respondent
is admittedly a resident of Bangalore and
usually divides his time largely between Delhi and Bangalore he should have no objection to the
trial of the suit in the State of Karnataka. On the other hand if the suit is not transferred as prayed the
petitioner will be considerably handicapped in his defence as both oral and
documentary evidence will not be easily available. The petitioner, therefore,
contends that it is necessary to order transfer of the case to meet the ends of
justice.
The
respondent has filed his counter opposing the petition. He contends that the
petitioner having aligned himself with the ruling party at the Centre is
indulging in making intemperate, slanderous and false allegations against him
with a view to maligning him and advancing the political interest of the ruling
party at the Centre. According to him the suit in the Bombay High Court is
delayed as the petitioner has failed to file his written statement to the suit.
After
he files the written statement, a summons for directions can be taken out and a
request to expedite the suit can be made to the High Court; if the petitioner
is sincere in his profession, he should join the respondent in requesting the
High Court for an early hearing of the suit. He further states that this Court
can also direct the Bombay High Court to hear and dispose of the suit within a
period of six months from the date of the order. According to the respondent it
is not necessary to transfer the suit from the Bombay High Court to a Court in
Karnataka merely on the ground that the latter court will be able to dispose of
the suit more expeditiously having regard to comparatively less pressure of
work. As regards the allegation that the petitioner's father maintains a family
house in the State of Karnataka, the respondent contends that the
petitioner normally makes frequent visits to Bombay where his in-laws have a comfortable home at Nepean Sea Road, Bombay. The respondent further contends that being the dominus litis
he was entitled to choose the forum and no valid grounds have been made out in
the petition for the transfer of the suit.
The
respondent, therefore, prays that the petition should be dismissed with costs.
The
petitioner has filed his rejoinder to the respondent's counter. He contends
that the respondent has not made a serious attempt to counter the grounds on
which the transfer petition is founded. He denies the allegation that he was
aligned himself with the ruling party at the Centre and is deliberately making
intemperate, slanderous and false accusations against the respondent with a
view to advancing the political interest of the said party. On the question of
delay in filing the written statement to the suit he contends that he 474
received the summons on April
7, 1989 requiring him
to appear before the Judge in Chambers on July 25, 1989. He states that on enquiry he
discovered that there was a long queue of matters listed for directions on that
date and he was told that his matter was not likely to reach even for
preliminary directions in the current year. He states that his written
statement is ready but he has not filed it as his suit is not listed for
directions. He has denied the allegation that his visits to Bombay are more frequent that his visits
to Bangalore. While admitting the fact that he
has a place to stay in Bombay he emphasises that his home is in Delhi and his father's home is in Bangalore and since the events in question
had taken place in Bangalore, he considers the Karnataka Courts
to be the natural and proper forum for the trial of the suit. According to him
while the respondent had made the choice of forum by instituting the suit at Bombay, Section 25 of the Code empowers
this Court to transfer the suit to Karnataka to meet the ends of justice. He,
therefore, contends that this Court should exercise its discretion in the
interest of justice and transfer the case to Karnataka where the events
complained of had taken place, where the documentary evidence is available in
public records and where the witnesses of the alleged transactions ordinarily
reside.
The
present Section 25 of the Code was inserted by Section 11 of the Code of Civil
Procedure (Amendment) Act, 1976. The relevant part of the Section with which we
are concerned reads as under:
"25(1)
On the application of a party and after notice to the parties and after hearing
such of them as desire to be heard, the Supreme Court may, at any stage, if
satisfied that an order under this section is expedient for the ends of
justice, direct that any suit, appeal or other proceeding be transferred from a
High Court or other Civil Court in one State to a High Court or other Civil
Court in any other State." Under the old section the State Government was
empowered to transfer a suit, appeal or other proceeding pending in the High
Court of that State to any other High Court on receipt of a report from the
Judge trying or hearing the suit that there existed reasonable grounds for such
transfer provided the State Government of the State in which the other High
Court had its principal seat consented to the transfer. The present Section 25
confers the power of transfer on the Supreme Court and is of wide amplitude.
Under the present provision the Supreme Court is empowered at any stage to
transfer any suit, appeal or 475 other proceeding from a High Court or other Civil Court in one State to a High Court or
other Civil Court of another State if it is satisfied that such an order is
expedient for the ends of justice. The cardinal principle for the exercise of
power under this section is that the ends of justice demand the transfer of the
suit, appeal or other proceeding.
The
question of expediency would depend on the facts and circumstances of each case
but the paramount consideration for the exercise of power must be to meet the
ends of justice. It is true that if more than one court has jurisdiction under
the Code to try the suit, the plaintiff as dominus litis has a right to choose
the Court and the defendant cannot demand that the suit be tried in any
particular court convenient to him. The mere convenience of the parties or any
one of them may not be enough for the exercise of power but it must also be
shown that trial in the chosen forum will result in denial of justice. Cases
are not unknown where a party seeking justice chooses a forum most inconvenient
to the adversary with a view to depriving that party of a fair trial. The
Parliament has, therefore, invested this Court with the discretion to transfer
the case from one Court to another if that is considered expedient to meet the
ends of justice. Words of wide amplitude--for the ends of justice--have been
advisedly used to leave the matter to the discretion of the apex court as it is
not possible to conceive of all situations requiring or justifying the exercise
of power. But the paramount consideration must be to see that justice according
to law is done; if for achieving that objective the transfer of the case is
imperative, there should be no hesitation to transfer the case even if it is
likely to cause some inconvenience to the plaintiff. The petitioner's plea for
the transfer of the case must be tested on this touch-stone.
The
learned counsel for the respondent invited our attention to the observations of
this Court in Maneka Sanjay Gandhi & Anr. v. Rani Jethmalani, [ 1979] 2 SCR
378. In that case the petitioner figured as an accused in the prosecution
launched against her and another by the respondent for an offence of defamation
in the Court of Metropolitan Magistrate, Bombay. This Court was approached for the transfer of the Criminal Case from Bombay to Delhi. While declining the request for transfer this Court
observed as under:
"Assurance
of a fair trial is the first imperative of dispensation of justice and the
central criterion for the Court to consider when a motion for transfer is made
is not the hypersensitivity or relative convenience of a party or easy
availability of legal services or like mini-grievances. Something more
substantial, more compelling, more imperilling, 476 from the point of view of
public justice and its attendant environment, is necessitous if the Court is to
exercise its power to transfer. This is the cardinal principle although the
circumstances may be myriad and vary from case to case. We have to test the
petitioner's grounds on this touchstone bearing in mind the rule that normally
the complainant has the right to choose any court having jurisdiction and the
accused cannot dictate where the case against him should be tried. Even so, the
process of justice should not harass the parties and from that angle the court
may weigh the circumstances." Counsel for the respondent pointed out that
mere convenience of the petitioner and absence of likelihood of prejudice to
the respondent should not weigh with the court in directing the transfer of the
suit from the Bombay High Court to a Civil Court in Karnataka. We have already emphasised that the paramount
consideration for transfer of the case under Section 25 of the Code must be the
requirement of justice. If the ends of justice so demand, the case may be
transferred under this provision notwithstanding the right of dominus litis to
choose the forum and considerations of plaintiff's convenience, etc., cannot
eclipse the requirement of justice. Justice must be done at all costs, if
necessary by the transfer of the case from one Court to another. That is why in
Union of India v. Shiromani Gurudwara Parbandhak Committee & Ors., [1986] 3
SCR 472 this Court while sounding a note of caution that the power must be
exercised with circumspection observed that the court should not hesitate to
act if the ends of justice so demand in an appropriate case.
In the
light of the principle enunciated above, we may now consider the case before
us. On a bare perusal of the allegations set out in clauses (a) to (p) of
paragraph 4 and clauses (q) to (y) of paragraph 5 of the plaint, which form the
basis of the suit, it is evident that the charges of corruption, favouritism
and nepotism levelled against the respondent mainly concern the allotment of
lands situate in Bangalore and other parts of Karnataka at throw away prices to
his close relatives and favoured few besides non-resident Indians. In substance
the allegation is that the respondent and his family members pocketed more than
Rs.300 crores through fraudulent deals in lands situate in Bangalore and other
parts of Karnataka. There can, therefore, be no doubt that most of the oral as
well as the documentary evidence regarding the alleged scandalous deals would
be available in Karnataka, more particularly in Bangalore, and not at Bombay.
If the trial proceeds at 477 Bombay, voluminous evidence will have to be
carried to Bombay and several witnesses may have to travel to Bombay to give
evidence. Apart from the inconvenience likely to be caused to the witnesses,
the petitioner would also be required to incur substantial travel expenses to
secure the presence of the witnesses in view of Order XVI Rule 19 of the Code.
And yet, witnesses may be reluctant to travel the long distance to Bombay.
Considerable difficulty may also be experienced in securing discovery and
inspection of documents. As the petitioner does not deny the publication of the
allegations complained of in the plaint, the burden of establishing his defence
to the suit will be on him and he may be required to examine a number of
witnesses to discharge the same. We have, therefore, no doubt that the
petitioner would be handicapped in his defence to the suit if the suit is tried
in Bombay. The ends of justice, therefore, demand that the suit be transferred
from the Bombay High Court to the City Civil Court, Bangalore, where most of the documentary
evidence and the majority of the witnesses are available.
The
respondent in paragraph 20 of the plaint states that since "the impugned
allegations have been published throughout the nation, including Bombay", the Bombay High Court has
jurisdiction to, entertain and try the suit. The jurisdiction of the Bombay
High Court is, therefore, invoked solely on the ground of publication of the
impugned allegations. It is not the respondent's case that these allegations
had not been published in Karnataka State or in Bangalore where the respondent ordinarily
resides. This also becomes clear from his address given in the cause title of
his plaint.
It is
not suggested by the respondent in his counter nor was it contended by his
counsel that the transfer of the suit will result in substantial prejudice to
the respondent.
Since
the respondent ordinarily resides in Bangalore and was the Chief Minister of Karnataka during the period the various
acts of which he is accused took place, the impact of the accusations would be
as much if not more on the readers of Bangalore. There would, therefore, be no dearth of readers in Bangalore who may have read the offending
matters. We are, therefore, of the opinion that no prejudice, much less
substantial prejudice, would be caused to the respondent if the suit is
transferred as prayed.
It
must however be mentioned that the learned counsel for the respondent argued
that the petitioner is seeking transfer of the suit to Bangalore so that he may
be able to further defame the respondent. In this connection he laid stress on
the averments in the petition that the 478 suit should be tried in Bangalore as the people of Karnataka are
vitally concerned in the outcome of the litigation. It cannot be denied that
the people of that State are indeed vitally interested in the litigation
besides the parties themselves but we do not think the petitioner's request can
be spurned on that ground. Besides in these days of prompt publicity, the
apprehension of the learned counsel in this regard appears to be misplaced. We,
therefore, do not see any merit in this contention.
In the
result the petition succeeds. Suit No. 945 of 1989 (Rama Krishna Hegde v. Dr. Subramaniam
Swamy) pending on the original side of the Bombay High Court is hereby
transferred to the City Civil Court, Bangalore for trial and disposal in
accordance with law from the stage at which it is presently pending. The Bombay
High Court will transmit the record of the suit to the City Civil Court,
Bangalore within four weeks from the receipt of the order of this Court.
Parties will bear their own costs.
Y. Lal
Petition allowed.
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