Transfer Of Suits
Sec 24,25 of CPC, 1908
Under section 24 & 25 , an application for transfer can be made by any of the parties to a suit , appeal or other proceedings. Section 24 deals with the General Power of a High Court or a District Court to either transfer or withdraw any suit etc, and Section 25 deals with the power of the Supreme Court to transfer any pending suit etc on the application of any of the parties.
GENERAL POWER OF TRANSFER AND WITHDRAWAL [SECTION 24]
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-
(a)transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-
- try or dispose of the same; or
- transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
- retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which 1[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
2[(3) For the purposes of this section,-
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) “proceeding” includes a proceeding for the execution of a decree or order.]
(4) the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be
deemed to be a Court of Small Causes.
3[(5) A suit or proceeding may be transferred under this section from a
Court which has no jurisdiction to try it.]
Section 24 contemplates general power of High Court and District Court for transfer and withdrawal of civil suits. A suit can be transferred or withdrawn at any stage either on the application of either party after notice to the parties and after hearing as desired to be heard or suo motu, without such notice.
But once a notice is issued , The Court cannot tranfer the case without hearing all the parties to the proceedings.
The court will order for such transfer or withdrawal after notice and hearing of both the parties. The court can transfer any suit, appeal or proceedings pending before it for trial or disposal to subordinate court. 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 can re-transfer the same to the court from where it was transfer or withdrawn.
Grounds Of Transfer
The plaintiff as Dominus Litis has the right to choose any forum , the law allows him. This is substantive right like the right of appeal This right is subject to control under section 22 to 24. The Burden lies on the Applicant to make out a strong case for a transfer. A mere balance of convenience in favour of proceedings in another court is not a sufficient ground through it is a relevant consideration.
As a general rule , the Court should not interfere unless the expenses and dificulties of the trial would be so great as to lead to injustice or the suit has been filed in a particular court for the purpose of causing injustice.
Competency of Court
Sub-Sec (2) of Section 24 says in case of transfer or withdrawal, the court may either re-tried or proceed from the point at it was transfer or withdrawn.
De Novo trial: Fresh trial or start from where it is left i.e. transfer or withdrawn
The proceeding under Section 24 even includes execution proceedings.
Here, transfer may include transfer from a court which has no jurisdiction, i.e. transfer to those court who has no jurisdiction.
The Court to which a suit is transferred must possess pecuniary Jurisdiction but it it is not necessary that it should have territorial jurisdiction.
Power of supreme court to transfer suits, etc.
[SECTION 25]
1[Power of Supreme Court to transfer suits, etc.
(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.
(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.]
Section 25 of the Code , after its amendment in 1976, confers a new power on the Supreme Court in the Wildest terms.
The Supreme Court on the application of a party supported by an affidavit, after notice, and after hearing such of them as desire to be heard may at any stage of the suit, transfer any suit, appeal or other proceedings from one Civil Court or High Court of one state to another Civil Court or High Court of another state if it is expedient for the ends of justice.
The Supreme Court may also dismiss a frivolous or vexatious application and impose penalty of a sum upto Rs. 2000. The transferee court may either retry it or proceed from the stage of transfer of such suit, appeal or proceeding and shall apply the same law which would have been applied by the original court.
The power of transfer must be exercised with extreme caution and circumspection and in the interest of justice. The court while deciding the question must bear in mind two conflicting interests:
(i) As Dominus lLitis the right of the plaintiff to choose his own forum,
(ii) The power and duty of the court to assure fair trial and dispensation of justice
(iii)Transferring a case to meets the ends of justice.
Observation of Supreme Court in the case of Maneka Sanjay Gandhi And Anr vs Rani Jethmalani ,1978 by Justice Krishnaiyer where the apex court faces the question of transfer of criminal proceedings under section 406 CrPC.
Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the Court to consider when motion four transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or the like mini grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment is necessitous, if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. courts must test the petitioner’s grounds on this touch- stone 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.
Section 23(3 ) of CPC 1908 is control by the Section 25 of CPC.
Durgesh Sharma v. Jayshree, 2009
No comment