This Article is written by Abhishek Dubey 2nd Year Student of BBA-LL.B from Sant Vivekanand College of law And Higher Studies and it provides a ‘Detailed Analysis of Transfer of Cases.’ and it also discusses the nature, scope, objectives, grounds, and cases where transfer allowed and not allowed etc.
The whole judiciary is seen with due respect and every person has faith in the judiciary that whoever will come before the judiciary will get justice. The court should practice without discrimination and bias. Justice should be given in such a manner that a clear image of the judiciary has to be maintained in the minds of people. In order to have good faith on the court, the court should maintain high moral standards between the members of the judiciary under the Code of criminal procedure and Civil procedure. Justice can be achieved only when the court deals in presence of both the parties and the court has the power to move cases from one court to another. But the right of the plaintiff cannot be curtailed, controlled or interfered. In civil procedure, the jurisdiction of a civil court is at the root of any civil suit. It is the primary criterion in which the civil court can give the judgement.
Nature, scope and objective
The nature of the transfer of case depends upon the power of transfer suits and cases in civil and criminal law-
The power of the court to transfer suit has the following features-
- The power is limited where more than one court is competent to entertain the suits and plaintiff has filed in one of such courts.
- The power is not available when the plaintiff is suing on a contract which contains “Forum Shopping Clause”.
- The application under Section 22 can be filed only by one defendant and it has to be filed by single defendant even when there are multiple defendants.
- All the parties to the suit (except the applicant) have the right to file objection to transfer the application considering all the objections of the court. The superior court shall determine the most appropriate court for settling disputes.
Scope of Transfer Of Cases Under Civil Procedure Code
Section 24(1) High Court or District Court can transfer and withdraw any case on the application of any of the parties at any stage of the suit whether on pending or appeal proceedings. But the transfer of cases in any court the court in which case is transferred should be competent to deal with that case. The High Court also has the power to withdraw the case from any court and transfer it to any other court. Either within the same appellate court or under a different appellate court the case will be within the scope of the same high court or it can be within the jurisdiction of other High courts.
Objective Of Transfer Of Civil Suits
The main intention behind the transfer of cases is delivering justice or for deciding matters which address public sentiments. There are various provisions regarding appeal but this will create pressure on the mechanism of judiciary and will result in delayed justice. But the statute has created such a system so that the problems do not occur i.e the hierarchy of the court. The transfer of cases is a provision that helps to maintain the faith of the judiciary amongst the general public.
Who may apply?
In Section 22 of CPC, the plaintiff has the right to file a case in any competent court and when the defendant gets to know the purpose of application he may apply for the transfer of the case. The court may also consider the objection if any, made by the plaintiff in relation to such transfer. And further, after the clearance of the objection, the court will transfer the case in a court that is competent to deal with that case.
Section 22 and 23 are related to each other. Section 22 defines the power of the defendant to apply for the cases and section 23 lays down the conditions where the application of transfer can be made.
- The suit or other proceeding must have been pending in a court competent to try it.
- The transfer court must be subordinate to the court making transfer order.
- The transferee court should be competent to try or dispose of the suit, where competency does not only include pecuniary but also territorial competency.
To which court application lies
It is dealt under Section 23.
- Where the several courts having jurisdiction subordinate to the same appellate court then an application u/s 22, shall be made to the appellate court.
- Where such courts are subordinates to different appellate courts but to the same high court then the application shall be made to the high court.
- Where such Courts are subordinate to different courts within the local limits of whose jurisdiction the court in which suit is brought is situated.
- Grounds for transfer:
- To meet the conclusion of justice-it is almost the duty of the judiciary to give away the justice and justice should be delivered in such a way so that good message can be reached, society it should be delivered in such a manner so that faith of court to be maintained.The court should have an extra moral obligation to keep the trust and confidence alive.
- Desirability of having the only adjudication of a particular controversy.
- When there involves a substantial question of law.
- To prevent abuse of proceeding of court
- To avoid delay and unnecessary expenditure
- Where the judge is biased or interested in one part only
- Where a similar question of fact and law arise in two different cases
- When in a similar cause two people filed a case but in different court.
- To avoid multiplicity of proceedings or conflicting decisions.
According to Section 22 of the CPC, it is mandatory to mention the time and then give notice of the application. Notice should be given to all the parties pleading in the suit, whether it is plaintiff or defendant and merely to the opposite parties only. Under the provisions of section 22 notice of the application must be given to each and every party of the suit and to the court before which it is made. But it has been held that the defect could be cured by notice on application itself.
Hearing of objections
Section 21 of CPC no objection to jurisdiction as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.
Section 22 of CPC gives power to transfer suits which may be instituted in more than one court- where a suit may be instituted in any one of the two or more courts and is instituted in one of such courts, any defendant after notice to the other parties may at least get possible opportunity and in all cases where issues are settled at or before such settlement apply to have the suit was transferred to another court and the court to which the application is made, after considering the objections of the other parties (if any) shall determine in which of the several courts having jurisdiction of the suit will proceed.
Suo Motu transfer
Under Section 24 of Civil Procedure Code, the jurisdiction is exercised in the matter of transfer of a lawsuit, appeal or revision by the High Court and District Court is not bound by any application produced by any of the parties. Judges of the High Court and District Courts have discretionary powers in the matter of suo moto. Under section 24 of the CPC the High Court may, on the application received by any of the parties for the transfer of suit may move the application from one court to another.
Section 24 does not specify any ground in which the case can be moved from one court to another but there are certain principles and grounds which have to be followed for transfer of cases from one court to another.
Consideration of facts and law has to be taken into account for transfer of cases.
Section 24 also empowers High Court to move cases from one court to another.
Power and duty of the court
General power of transfer and withdrawal under section 24 of CPC.
- On receiving application of any of the parties and giving notice to parties and even without receiving the application the High Court or District Court at any stage whether trial, proceeding or hearing.
- Transfer any civil case whether pending or decided or at trial stage to the subordinate court but capable of dealing with that matter.
- The District Court or the High Court also has the power to withdraw the case whether pending for proceeding, or decided for trial purpose and can transfer it to any court which is subordinate to it but capable of dealing with that matter.
- Where the suit or proceeding is transferred the court can start the proceeding from the point where it is transferred or can start from the beginning.
- For the purpose of this section, courts of additional and assistant judges shall be subordinate to the district court.
Duty of the court- When the transfer is made on an application, the court must act judicially, guided by a sense of justice, on considering objectivity and not subjectivity. And it should also be in mind that it will not get justice at the hands of presiding officer.
Calling for remarks
If the party claims that the presiding officer of the court is biased or any other allegation is made by the party in relation to the presiding officer, the officer should be called for the reason regarding the allegation. But the presiding officer will not be giving reasons for the judgment of cases.
Application for transfer after hearing
It is true that application of transfer can be made at limited ground irrespective of the stage of proceeding and the court has discretionary power regarding transfer. But there should be a valid ground for transfer of such case and if there is mala fide intention behind transfer the court may reject the application.
Recording of reasons
In submitting an application to a superior authority for transfer or withdrawal of cases, the court should record a reason under section 24 CPC. It is stated that the court should always record a short statement of the case, with the reason for application.
Application for transfer and their reason should be recorded separately from the main case and record of such transfer application should be kept separately in record room. The original order should be kept in proceeding record and the copy should be given to the concerned court.
Effect of transfer
Order of transfer becomes effective as soon as made. Its effectiveness will not depend upon its conveyance to the subordinate court.
If the application for transfer is dismissed or if the court feels that transfer is not made for a good reason, the court may ask to give compensation to the opposite party but not exceeding Rs 2000.
Section 96 defines that an appeal shall lie in the court from every decree passed by any court in the exercise of original jurisdiction and the court is having authority to hear appeals from the decision of such courts.
No appeal is allowed when the court passed a decree with the consent of the parties.
No appeal shall lie if value does not exceed Rs. 10000 in original suit except on an appeal in question of law. A party challenging the compromise can file an appeal under section 96(1) and 96(3). A decree can be challenged on the ground of fraud, misrepresentation, etc.
An appeal may lie from the original decree if it is ex-parte.
Section 115 of the CPC – The high court may call for revision for any case decided by the court which is subordinate to the high court if such subordinate court
(a) Have exercised their power beyond the statute.
(b) Did not exercise the jurisdiction which has been stated in the statute.
(c) When subordinate court exercises jurisdiction illegally.
Cases where transfer is allowed
Transfer of cases from one court to another is allowed when:-
- Reasonable threat in mind of party that he/she will not get justice where the case is pending in court.
- Balance of convenience.
- When two people filed a suit against each other in different court on the same cause of action.
- Where there are suits pending in different court but similar question of facts and law arises.
- Where the judge is biased and making discrimination.
Cases where transfer is not allowed
1.Where there is mere balance of convenience to the applicant.
2.Where judges give the opinion in advance about the judgment of case.
3.Where there is mere facts of an erroneous order.
4.Where claim is that the opposite party is an influential man in the locality.
5.Where a claim that the court is situated at a long distance from the residence of the applicant.
Power of transfer must be exercised with due care and attention and with the interest of justice. The court should decide the conflicting interest. Paramount consideration is justice and if the ends of justice demands transfer of case the court shall not hesitate. But there are some limitations where transfer of cases can be done or instances under which it can be done or cannot be done can inconvenience and complexity. Relevant factors have to be considered for the transfer of cases.