This article has been written by Nandita Lal, pursuing the Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.
Table of Contents
Introduction
The Judiciary holds a respectable position in the minds of the people seeking justice. People with utmost faith and respect come before the Judiciary to get the justice that is fair and without any discrimination. In return, the Judiciary has to maintain high standards while providing justice to the people coming before it. Both the sides must be heard and there shall be no obstacles while providing justice. So, in order to avoid hindrances of any kind and to ensure full satisfaction to the party seeking justice, the provision of transfer petition has been made available.
Meaning of transfer petition
Transfer Petition is a petition filed before the court for the purpose of transferring their case from one court to another court. The party who intends to get his/her case transferred must file a transfer petition to the court and the court decides whether or not the case is transferable based on relevant grounds.
When is transfer petition filed
The first and foremost object of every procedural law is to provide justice that is fair and unbiased. In India, both the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973 contains the provisions of transfer of cases. Sections 22 to 25 of the Code of Civil Procedure, contains the law regarding the transfer and withdrawal of suits, appeals and other proceedings from one court to another. Sections 406 to 408 of the Code of Criminal Procedure, contains the law regarding the transfer of cases and appeals.
Transfer petition when filed under the Code of Civil Procedure
When there is an inconvenience on the part of the plaintiff
Generally, the plaintiff has the right to choose his/her own forum where a suit can be filed in more than one court. This right of the plaintiff cannot be curtailed or interfered but this right can be controlled by the superior courts. In the case of Jagatguru Shri Shankaracharya v. Ramji Tripathi, AIR 1979 MP 50, it was observed by the Madhya Pradesh High Court:
“The plaintiff, as arbiter litis, has a right to choose his own forum and that right should not be interfered with except on very strong grounds.”
Therefore, it is of utmost importance that the plaintiff chooses his own forum according to his convenience. A court may transfer any suit keeping in view relevant considerations after the transfer petition is presented before the court by the plaintiff. The court will allow the transfer as per the convenience of the plaintiff if the grounds specified by the plaintiff for such transfer appears to the court to be of extreme importance for the fair and impartial trial.
When there is an inconvenience on the part of the defendant
According to section 22 of the Code of Civil Procedure, 1908, the defendant can also make an application for the transfer of the suit where a suit may be instituted in more than one court. The defendant may after giving notice to the other party/parties at the earliest opportunity possible apply, in all cases where issues are settled, at or before the settlement of issues for the suit to be transferred to another court. The court where such application is made by the defendant shall, after considering the objections if made by the other party/parties determine in which court the suit shall proceed.
When there is a reasonable apprehension in the mind of the litigant that he/she might not get justice in that particular court where the suit is pending
It is of paramount importance that the party before the court seeking justice must get satisfactory judgment and also it is important for the litigant to show appropriate grounds which would form a strong base for the transfer of a case. If and only if the grounds specified by the litigant as to why there is an apprehension in his/her mind is reasonable and sound then only the court shall approve the transfer petition so filed.
Where transfer would avoid unnecessary expenses and delay
The transfer petition filed by the party can also specify the grounds that such a transfer would lead to avoidance of unnecessary expenses and delay to the parties involved. This generally happens in the case where matrimonial matters are involved. In divorce cases where the wife leaves her husband’s house and starts residing in her parental house in a different place or city or state and the wife is unable to travel all alone or she can’t leave her child alone or where she lacks money for the suit can apply for transfer petition on such ground for the speedy trial in less expense.
When important questions of law are involved or a considerable section of the public is interested in the litigation
There are several cases where some important questions of law are involved and in such cases the litigant can file a transfer petition specifying such questions highlighting their importance as a ground for transfer to the other court. Also, there are certain cases where not only two or three parties are involved but a considerable section of the public is interested in the litigation, in such cases the court can take into account the necessity of the case to be transferred to another court.
Transfer petition when filed under the Code of Criminal Procedure
When transfer becomes necessary to ensure fair and impartial trial
The accused person has reasonable grounds to believe that he/she may not get a fair trial at the hands of a particular judge, then the accused shall have the right to get his/her case transferred in another court. This principle is widely recognized and is considered as unobjectionable. The petitioner is required to show circumstances that give rise to the apprehension in his/her mind regarding the unfair trial.
When transfer causes general convenience to the parties and the witnesses
To ensure fair trial each and every step is important and therefore it is necessary that the witnesses and the parties are present during the trial. If a transfer petition filed before the court is for the benefit and convenience of the parties and the witnesses then the petition can be looked upon by the court.
When it is expedient for the ends of justice
It is of utmost importance for the courts to facilitate justice to the person before it seeking justice. So, whenever it appears to the court that it is expedient for the ends of justice to transfer the case from one court to another, the court approves the transfer petition filed by the party.
What is the procedure to file a transfer petition
Procedure as per the Code of Civil Procedure, 1908
A petition can be filed by a person seeking transfer of a case from one court to another by giving an application supported by an affidavit stating the grounds of transfer. According to section 22 of the Code, when an application of transfer is made by the defendant, then the defendant must give notice of such application to the other side. As per section 24, when an application of transfer is made by any party, a notice must be given by the court to the opposite party before making an order of transfer. Therefore, notice plays an important role and it has been held to be mandatory to give notice to the other side regarding the transfer.
Procedure as per the Code of Criminal Procedure, 1973
- An affidavit in support of an application stating the grounds of transfer must be given to the court by the party seeking transfer and that affidavit should be in accordance with the provisions of section 297 of the Code.
- According to section 407(4), when an application of transfer is made by the accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award as per sub-section(7) of section 407. As per sub-section (5) of section 407, every accused person who is making an application of transfer shall give notice to the Public Prosecutor in writing of the application together with a copy of the grounds on which it is made. Unless at least 24 hours have elapsed, between the giving of such notice and the hearing of the application, no order shall be made on the merits of the application.
Essential pointers to be included in the petition
Grounds of transfer
In a transfer petition where the party is willing to transfer his case from one court to another court must state the grounds of transfer in the petition. Grounds of transfer is essential in the petition because there must be a valid reason for which the party is asking for the transfer and the court must be satisfied by the reason stated in the petition. The party filing a petition must give a reason that shows that there is a need for transfer. The grounds as stated in the petition must appear to the court to be reasonable and of such a nature that if the petition does not get approved would cause a failure of justice. Therefore, in order to get the case transferred, the party filing the petition must be aware that the grounds on which they are asking to transfer is strong enough for the court to approve it.
Illustrative cases where transfer was allowed by the courts:-
The following cases have been held by the courts to be sufficient grounds for transfer of cases-
- To avoid multiplicity of proceedings or conflicting decisions (Case-Indian Overseas Bank v. Chemical Construction Co. AIR 1979 SC 1514)
- There was reasonable apprehension in the mind of the litigant that he/she might not get justice in the court where his/her suit was pending [Case- Kiran Ramanlal v. Gulam Kader, (1995)]
- Where the balance of convenience requires(balance of convenience is a legal expression which includes not only the convenience of plaintiff or defendant alone but of both the parties)[Case- Jagatguru Shri Shankaracharya v. Ramji Tripathi AIR 1979 MP]
- Where the common questions of law and fact arise between the parties in two suits (Bihar State Food & Supplies Corpn. Ltd. v. Godrej Soap Ltd.(1997)]
- Where transfer avoids delay and unnecessary expenses (Shiv Kumari v. Ramajor Shitla Prasad AIR 1997 SC 1036)
- Where important questions of law are involved or where considerable section of public is interested in the litigation (Arvee Industries v. Ratan Lal AIR1977 SC 2429)
Notice
Notice plays a very important role while filing a transfer petition. The party filing a transfer petition must give notice to the other party or to the Public Prosecutor as the case may be, about the same. In both the Codes it is important to give notice to the other party.
Affidivit
An affidavit must be attached with the application of transfer stating the grounds on which the party is seeking the transfer. Under the Code of Criminal Procedure, 1973, every application for an order under sub-section (1) of section 407 shall be made in motion, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
Conclusion
The transfer of cases from one court to another is a very important and valuable provision enshrined in the Indian Laws. The party seeking transfer must use this valuable provision only for the requirement of justice and must show strong, sound and reasonable grounds for attaining the same. The courts, on the other hand, should also exercise this power of transferring the case from one court to the other with great care, caution and in the interest of justice. It is the duty of the court to ensure a fair trial and to render justice. For the ends of justice if the court needs to transfer the case then it should not hesitate to transfer.
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