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PETITIONER: DR. SUBRAMANIAM SWAMY

       Vs.

RESPONDENT: RAMAKRISHNA HEGDE

DATE OF JUDGMENT18/10/1989

BENCH: AHMADI, A.M. (J) BENCH: 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 expedi- ent for the ends of justice.

HEADNOTE:     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  le- velled  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  Banga- lore  and other parts of Karnataka, whereby  the  respondent favoured  his relatives/friends, besides non-resident  Indi- ans.     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-conven- ience.  In support of the petition it is urged by the  peti- tioner 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 touch- ing 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  Banga- lore; (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  oth-

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ers, 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 intemper- ate,  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  jus- tice. [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 trans- ferred  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  evi- dence 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 accusa- tion would be as much, if not more, on the readers of Banga- lore. 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.

JUDGMENT:     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

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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-conven- ience.     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  contain- ing allegations set out in clauses (q) to (y) of paragraph 5 of the plaint and followed it up by further similar  allega- tions made on January 12, 1989 and January 27, 1989, all  of which are per-se defamatory. We need not set out the allega- tions 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  Parlia- ment,  to have received his Doctorate from the Harvard  Uni- versity 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 econom- ic  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 publica- tion of the allegations complained of by the respondent." It is  thus seen that the factum of publication of the  allega- tions is not in dispute.     The  petitioner, however, contends that the most  appro- priate place for the trial of the suit filed by the respond- ent  is the State of Karnataka where the various  acts  com- plained  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  Banga- lore;  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 Karnata- ka,  more particularly Bangalore; the discovery and  inspec- tion 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

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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  doubt- ful  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 Banga- lore 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  peti- tion. 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  peti- tioner has failed to file his written statement to the suit. After  he files the written statement, a summons for  direc- tions  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 request- ing  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  peti- tioner’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  respond- ent’s counter. He contends that the respondent has not  made a serious attempt to counter the grounds on which the trans- fer  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  con- tends that he 474

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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  consid- ers the Karnataka Courts to be the natural and proper  forum for  the trial of the suit. According to him while  the  re- spondent  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  jus- tice.  He, therefore, contends that this Court should  exer- cise 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 trans- actions 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 trans- fer 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  jus- tice.  It is true that if more than one court has  jurisdic- tion under the Code to try the suit, the plaintiff as  domi- nus 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

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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 inconven- ient 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  con- ceive 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  Magis- trate, 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 imper-               ative  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  sub-               stantial, 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  trans-               fer.  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 conven- ience of the petitioner and absence of likelihood of  preju- dice  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  empha- sised  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  require- ment  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 Gurudwa- ra Parbandhak Committee & Ors., [1986] 3 SCR 472 this  Court

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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  Bom- bay. 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  re- quired  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  docu- ments.  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  dis- charge  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,  there- fore,  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 through- out the nation, including Bombay", the Bombay High Court has jurisdiction  to, entertain and try the suit. The  jurisdic- tion 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  var- ious  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  read- ers 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

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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. 479