Author: Sivapuram V.L. Thejaswini Student, Alliance University
Introduction :
Section 22-25 of the Civil Procedure Code, 1908 deals with the transfer of suits, appeals and any other proceedings from one court to other court.
In Aarvee Industries v. Ratan Lal, it was said that in cases of transfer of suits an extreme care, caution to serve the ends of justice has to be considered. While deciding these cases, the court must balance between these as follows;
Assuring fair trial, providing justice
The right of the plaintiff to choose his/her own forum[1]
A combined reading of Section 22 along with Section 23 provides for a defendant to make an application to transfer a suit.
Whereas under Section 24 both the District courts & High courts have the power to transfer the suit.
Section 25 enables the Supreme Court to transfer any suit (or) any appeal either through an application made by the parties (or) even by Suo-moto.
Transfer of Suits :
Section 22 of the Code gives the power to transfer suits which may be instituted in more than one court. The application has to be made by the defendant for transfer of suit. A pre-condition is that such transferee court must have concurrent jurisdiction.
Notice is needed to be served to all the parties of a suit.
Application has to be made by the defendant at the earliest possible opportunitye., either at the stage of Written statement (or) before the issues are settled.
After the notice is served to the opposite party, then the court has to hear the objections raised by them even. Only then the court can decide regarding the application of transfer.
The court here determines whether to transfer the case (or) not.
Section 23 of the Code deals with what courts the application of transfer lies. Generally states that in which courts the application can be made.
In case of concurrent jurisdiction, if the courts are subordinate to the same appellate court then an application for transfer can be made in such appellate court under Section 23(1)
In case of concurrent jurisdiction, if the courts are subordinate to different appellate courts but to the same High court then an application for transfer shall be made in such High court under Section 23(2)
In case of concurrent jurisdiction, if the courts are subordinate to different High courts then the First Commencement Rule shall be applied. Then an application shall be made to the High court with in whose local limits of jurisdiction the court where the proceedings first commenced (or) started is situated under Section 23(3)
Whether the High court of one particular state has a binding effect on the High court of other states ?
This issue was solved in the case of Durgesh Sharma v. Jayshree,
Where it was held by the Supreme Court that in case of transfer of cases from one state to other, the High courts has no such power. The Supreme court only can take cognizance of such issues & decide accordingly.
By this judgement Section 23(3) was made redundant though it is explicitly being mentioned in the Statute.
When compared to other Sections like 22, 24 & 25; Section 23 is only procedural where as the others are substantive also.
So this Section 23 has to be always read along with Sections 22, 24 & 25.
Sections 22 – 25 are very exhaustive in nature regarding the transfer of cases[2].
Key points under Section 22 & Section 23 –
Following the Principles of Natural Justice, notice to be served to all the parties in a suit.
Balance of convenience (or) forum convenience to be taken into consideration because in case of concurrent jurisdiction, what is convenient to both the parties is essential.
Section 24 of the Code provides for the general powers of transfer & withdrawal of civil suits by District courts & High courts.
No specific grounds are mentioned here but only empowers the courts to transfer (or) withdraw the suits.
The courts can transfer (or) withdraw suits at any stage of the proceedings. It can be by application made by the parties (or) by suo moto powers.
Sub section (2) of Section 24 states that in case of transfer (or) withdrawal, the court may either retry it (or) proceed from the same point as transferred.
It emphasizes the concept of De Novo trial – that is new/fresh trial to start from the point where it is left either transfer (or) withdrawal.
Even the execution proceedings are also included in this section.
Sub section (5) of Section 24 provides that even the court transferring the case also may not have jurisdiction.
Here the transfer may be from a high court to subordinate court (or) from subordinate court to High court. It is a 2-way transfer.
In M.V. Ganesh Prasad v. M.L. Vasudevamurthy, it was held by the court that the angst of bias has to very reasonable, proper & bonafide in the mind of the petitioner who is seeking for the transfer of suit. If not then the application made for transfer of suit may get rejected.
It is very essential here that the court has to examine the reasons & arguments that are put forward in such of such transfer application by the parties. All the circumstances has to be considered thoroughly in case of transfer of suits[3].
In Nahar Industrial Enterprises ltd. v. Hong Kong and Shanghai Banking Corporation, it was held by the Apex court that in case of inter-state transfer of suits only the civil suits are the subject matter to be transferred from one civil court to the other civil court.
It is also provided under Sub section (5) of Section 24 that any suit can be transferred even from a court that has no jurisdiction to try it.
The powers that are provided under this section for transfer of suits from one court to the other court has to be only exercised in cases of exceptional circumstances.
These rules are generally presumed to follow the Principles of Natural Justice[4].
Main difference between these sections –
Under Section 22 & 23 both the transferor & transferee courts have jurisdiction. But it is different in case of Section 24as the courts may either have jurisdiction (or) not. That means they may be either competent (or) incompetent.
Section 25 of the Code empowers the Supreme Court to transfer suits.
After an application made by the parties, serving of the notice & conduct of hearing if it is in the opinion of the Supreme court to serve the ends of justice then the court shall transfer such suit from High court (or) civil court of one state to the High court (or) civil court of the other state.
An application here shall be made by motion which means that a proper notice to be served to the parties in a suit which is supported by an affidavit.
In case of any false, frivolous (or) vexatious application made by the parties, then the court may impose penalty on such parties up to a sum of Rs. 2,000.
As per Section 25(4), the court can order the applicant to pay compensation to any person who has opposed such application based on circumstances of the case.
Conclusion :
Thus these are the provisions under the Civil Procedure for the transfer of suits. Some of the factors have to be given importance.
Balance of convenience is the prima facie consideration where both the parties have to be convenient. Convenience of witness in a trial, convenience of place of trial particularly are some of the relevant factors[5].
[1] AIR 1977 SC 2429
[2] (2008) 9 SCC 648
[3] AIR 2003 Kant 39
[4] (2009) 8 SCC 646
[5] Indian Overseas Bank v. Chemical Construction, AIR 1979 SC 1514