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This article is written by Prachi Kashinath Gharat who is pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction

In a democratic country like India, independent judiciary is an indispensable organ of the government as it not only protects the citizens from unlawful intrusion of the legislature and the executive but is also an ombudsman of the Constitution because it safeguards the fundamental rights of the citizens, upholds justice, interprets and applies law and plays a vital role in law making.

The citizens approach the court with an anticipation of justice, fair and impartial redressal where there is no place of biases or favouritism. and In order to maintain such high moral standards the judiciary has statutory procedural law called the Civil Procedural Code and Criminal Procedure Code. The Civil Procedural Code states simple and effective procedure to deliver impartial and unbiased justice. According to Section 15 of the Civil Procedural Code, suits are to be filed by the plaintiff in the court which is lowest in the hierarchy.

The suits must be filed according to Section 16 to 19 of the Civil Procedural Code which lays down that suits can be filed in the courts where the cause of action arose or where the defendant stays/works/or has his business and incase of multiple defendants the plaintiff can chose the court where one of the defendant stays/works/or has his business. While filing a suit the Jurisdiction is the primary criterion and root of the civil suit because if there was  no jurisdiction every case brought to the court would lead to confusion and inconsistent results. 

In Official Trustee, West Bengal & Ors. v. Sachindra Nath Chatterjee & Anr, it was stated that the Court can have jurisdiction of some sought to try the matter but its essential that the court should also have the authority to hear the matter and also pass orders sought for.  In the event of filing a suit the plaintiff has the right to choose the court to adjudicate the suit and thus to promote egalitarianism various sections have been incorporated to Transfer the Suits to another competent court having jurisdiction. Section 22 and 23 of the Civil Procedural Code deals with the rights of the defendant to apply for the transfer of a suit, while Sections 24 and 25 permit certain courts to transfer the suit.

when can suits be transferred?

Section 22 and Section 23 are interrelated to each other as section 22 confers power on the defendant to make an application for transfer for suit and section 23 prescribes where such an application is made. There are certain conditions to be satisfied before filing the application for transfer of the suit which are as follows:

  • The suit must be pending before the competent court.
  • The transfer of suit should be made to the subordinate court which is competent to adjudicate the suit. 

It is pertinent to note while the transfer is made to other court both pecuniary jurisdiction as well as territorial jurisdiction should be taken into consideration.

Section 22: Power to transfer suits which may be instituted in more than one court

When a plaintiff files a suit, he has the supremacy to select any one of the two or more competent courts to adjudicate the suit and thus to be unprejudiced and impartial the code empowers the defendant to either accept the court where the suit is filed and file his/her written statement or file an application for transfer of suit to any other competent court. The following are the conditions to be satisfied before making an application for transfer of suits.

  • Notice is to be served to the plaintiffs along with the other defendants in the suit regarding the application for transfer of the suit. Thus it’s mandatory to serve a notice before making an application for transfer of suit.
  • The application for transfer should be made at the earliest opportunity, to be precise either when issues are settled at or before such settlement.

In the case of Mt. Basanti Devi vs Mt. Sahodra, in which Section 22 of the Civil Procedural Code, was construed it was stated that while transferring the suit not only convenience of both the parties but the totality of situations and the conditions which include the place, value and nature of the subject-matter should be taken into consideration. Furthermore, failure at a former stage can be cured by the issue of a notice on the application itself but the order for transfer of application cannot be passed without the notice.

After the notice is served to all the parties, the opposite parties have the right to file their objections in regard to the application. After hearing the objection of the opposite parties the court determines the most appropriate court for adjudicating the matter.

Section 23: To what court application lies

Section 23 of the Civil Procedural Code mentions how an application is to be made and which court the application is to be made. It states that application can be made to any subordinate court or appellant court subject to certain conditions which are as follows:

  • When several courts having jurisdiction to try the suit are subordinate to the same Appellate court, the application for transfer of suit is to be made u/s 22 of the Civil Procedural Code to the Appellate Court.
  • When several courts having jurisdiction to try the suit are subordinate to different Appellate court but the same High court, then the application for transfer of suit is to be made to the High Court.
  • When the courts having jurisdiction to try the suit are subordinate to different High courts, then application for transfer of suit shall be made to the High Court within the local limits of the civil court where the suit was initially filed. This is known as the First Commencement Rule.

Section 24: General power of transfer and withdrawal

  • Section 24 contemplates some general power of the High courts and District Courts to transfer or withdraw pending suits, appeal or proceedings before any subordinate court. 
  • As per section 24 suit can be transferred at any stage either on the application of the parties or suo moto transfer by the Judges of the High court or District court.
  • When the parties file an application for transfer of the suit, a notice is sent to all the other parties and after hearing both the sides of the parties the court may transfer the pending suits, appeal or proceedings to any other subordinate court to either proceed or dispose the same. 
  • The court can withdraw pending suit, appeal or proceedings in any subordinate court and try or dispose of the same, or transfer the same for trial or disposal to any subordinate court or else can re-transfer the same to the court from where it was transfer or withdrawn.
  • Some significant facts under section 24:
  1. The court on transfer can either try the suit De Novo or from the stage where it was left i.e. transfer or withdrawn.
  2. Execution proceedings are included under Section 24. Thus suits can be transferred to any other court which may competent or incompetent to try the suit.

Case laws

  • Durgesh Sharma v. Jayshree

In this case, the Supreme Court clarified that under section 24 the High court has no authority to transfer pending suit, appeal or proceedings in any court which is subordinate to a different High Court. 

  • Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation

In this case, the Supreme Court held that only Civil Suits can be transferred to a civil court subordinate to another High court nonetheless this power is to be exercised only in exceptional cases. 

Section 25: General power of transfer and withdrawal

  • Section 25 contemplates power of the Supreme Court to transfer or withdraw pending suits, appeal or proceedings before any High Court or civil court in one state to High court or civil court of another state. The court has been vested with these powers to meet the ends of justice.
  • When the parties file an application for transfer of the suit, a notice is sent to all the other parties and after hearing both the sides of the parties the court may transfer the pending suits, appeal or proceedings to any other High court or civil court to either proceed or dispose of the same. The application shall be affixed with notice of motion supported with the affidavit
  • In case if the apex court is of the opinion that the application filed is facetious or vexatious, it can dismiss the application and additionally it even ask for compensation up to Rs. 2,000(Rupees Two Thousand Only) from the applicant.

Case laws

  • Dr. Subramaniam Swamy v. Ramakrishna Hegde

In Dr. Subramaniam Swamy v. Ramakrishna Hegde, it was held that if the transfer application is for some minor reason like comfort of the parties does not make a valid reason for the transfer. The prerequisite for transfer of case under section 25 is that the ends of justice should demand the transfer. 

  • Kalpana Devi Prakash Thakar v. Dev Prakash Thakar

In a matrimonial dispute usually, the divorce petition is filed in the court near to the place where the husband and wife resided together. Normally after separation the women shifts back to her parental house and thus it gets very difficult for her to either bear the expenses of traveling or keep her minor child alone. In such cases the court takes into consideration the facts of the matter. The court in case of the above matter had dismissed the transfer. However, in the case of Arti Rani v. Dharmendra Kr Gupta, it was held that, “In a matrimonial dispute, proceedings can be transferred at a convenient place in favor of a woman with a minor child.”

  • Gujarat Electricity Board v. Atmaram Sungomal Poshami

It was held in the above case that in case of transfer of case between the benches of the Apex Court the mere ground that the party has a fear of injustice or the sense that the opinion of the judge after the oral argument was biased does not make a rational ground for transfer. 

Jurisdiction of the Supreme Court to withdraw and transfer cases under Article 139-A of the Indian Constitution

Where different cases comprises of  the same questions of law which is either pending before the Apex court and one or more High Courts or, before two more High Courts, and the Apex Court is satisfied on its own motion or on an application made by the Attorney General for India or by a party to any such case, that such questions are significant questions of general importance Article 139-A(1) of the Constitution empowers the Supreme Court to “withdraw” the cases pending before the High Courts to itself and discard all the cases without anyone else’s interference. 

In Union Carbide Corporation v. Union of India, it was held that the withdrawal of the civil suit and criminal proceedings to the Apex Court was tested on the ground that the requirements of Article 139-A of the Constitution were not fulfilled. In dismissing the appeal that the case couldn’t have been so withdrawn, the Supreme Court held that Article 139 did not diminish its power of withdrawal and transfer and that its power under Article 136 and 142(1) were additionally accessible for the reason.

Grounds on the basis of which suits can be transferred

The transfer of suits is only possible if there is a sufficient or rational cause which are as follows:

  • Convenience and inconvenience of the Plaintiff.
  • Convenience and inconvenience of the Defendant.
  • Convenience and inconvenience of the Witness.
  • Convenience and inconvenience in regards to the nature of the evidence required for the trial.  

Following are some of the rational grounds wherein transfer of suits is allowed:

  • When Judge is biased and hence there is a menace of injustice 

Transfer of suits is allowed when any of the party has a sense of fear that the judge is prejudiced and unfair and thus justice won’t be done.

In the suit Jagatguru Shri Shankaracharya Jyotish Peethadhiswar v. Shri Swaini Swaroopanand Saraswati, it was stated that where one party is under fear that justice won’t be done as the judge of the court before which the suit is pending is biased or the atmosphere is such that no fair trial is possible the transfer is allowed. 

  • When parties have filed suits in different courts for the same cause of action

Transfer of suits is allowed where multiple suits for the same cause of action have been filed by both the parties at different courts the suits can be transferred to the appropriate court.

  • When suits of same subject matter are filed in different courts 

Transfer of suits is allowed if different courts have trials on same subject matter then such matters should be transferred to the appropriate court to avoid multiplicity of proceedings.

  • When court has no jurisdiction 

Transfer of suits is allowed when the court before which the trial is on has no jurisdiction to entertain it. In the suit Neha Arun Jugadar v. Kumari Palak Diwanjin, it is stated by the Apex Court that when the court where the trial is going on has no jurisdiction the transfer of the suit is allowed without a doubt.

Following are some of the rational grounds wherein transfer of suits is not allowed:

  • When there is mere balance of convenience

Justice Krishna Iyer, in the landmark judgement of Maneka Gandhi vs Rani Jethmalani, made the following remarks that assertion of fair trial is the first bestowal of justice and the dominant criteria to be considered by court for transfer of suit is not the convenience of both the parties but something for generous and captivating for public interest that compel the court to take necessary steps for transfer of suits. Thus, transfer of suits is impossible if there is mere balance of convenience. 

  • When Judges make an erroneous order

In case, in a matter, if there fallacious order passed by the judge in that case transfer of suits is not allowed. In the matter of Madan Lal v. Babul Lal, the court held that the mere fact an erroneous order has been passed is not in itself a ground for transfer as it does not necessarily lead to an inference of bias.

  • When Judges make adverse remarks

In the case of Gujarat Electricity Board & Anr. vs Atmaram Sungomal Poshani,  the court held that no privilege to get a suit transferred to some other bench and can legitimately be asserted simply in light of the fact that the Judges express conclusion on the merits of the suit on the conclusion of hearing.

  • When the opponent is a man of influence

In case if the opponent is an influential person does not make it a rational reason to allow transfer of suits. In the case of Dr. Subramaniam Swamy v. Ramakrishna Hegde, the court held that No prejudice, much less substantial prejudice would be caused to the respondent if the suit is transferred as prayed.

Conclusion 

As stated above, the power to transfer cases should be practiced with great caution and only when it appears that the only way to meet the end of justice is through transfer of case. The court should take into consideration all the relevant facts before approving the transfer of the case. 


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