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Transfer of Suits | Overview
Section 22-25 of the Code of Civil procedure provide the provisions as respect to transfer of Suits and withdrawal of suits, appeals and different procedures starting with one court then onto the next.
Introduction
When in doubt, a plaintiff has an option to pick his very own adjudicating authority as ‘arbiter litis’ or ‘dominus’, where a suit can be instituted. Regularly, this privilege of the plaintiff can’t be reduced, controlled or meddled with. [1] Be that as it may, as the right is constrained by the power entrusted in superior courts than transferring a case pending in one lower court to another or to review the case to the same court for adjudicating and passing a decree.
Section 22-25 of the Code of Civil procedure provide the provisions as respect to transfer and withdrawal of suits, appeals and different procedures starting with one court then onto the next. Section 22 and 23 enable a litigant to apply for transfer of a suit while Sec. 24 and 25 enable any suit, appeals or any other proceedings to be transferred through an application made by any parties to the suit or by the court suo motu.
Scope
As the purview of this sections is limited to cases under Section 16 and 20 of the code. If the defendant pleads want of jurisdiction of Court in which suit has been instituted, he cannot apply under these sections for transfer.[2]
Section 22 enables the litigant to transfer a suit by the filing of an application before the appropriate authority. While section 23 demonstrates the court to which such an application can be made. Section 24 encapsulates general capacity to transfer of any suit, at any stage either through an application by any order or by request of adjudicating court. In any case, High Court has not conferred with the power of transferring any suit, execution, appeals or any other ongoing proceedings from one subordinate court of that High Court to a court not subordinate to that High Court.[3] Section 25 presents wide powers on Supreme Court to transfer any suit, appeal or other proceedings, with one High Court then onto any other High Court, or any civil court in a state to any other civil court of a different state.
Transfer Application
The privilege of a litigant to apply for the transfer of a suit is given under section 22-23 of the code. Where the plaintiff has the decision of at least two courts in which he may institute a suit, a respondent, after notice to the contrary party, may at the most punctual open door applies to the court on its discretion to suit transfer from the court in where it is has been recorded to another court. In different cases, such an application might be filed by a party to the suit.
Conditions
Before the transfer is initiated two conditions must be satisfied under section 22 of the code-
- The application for transfer of suit shall be filed before any settlement of the issues between the parties;
- The opposite parties to be served with a notice, once the application is filed.
Application for Transfer
Section 23 of the code specifies the court to which an application for transfer can be made:
- Wherein various courts failing within the jurisdiction of the same appellate court, then an application can be filed before the appellate court for transfer;
- Wherein corresponding courts are subordinate under the same High Court, an application can be filed before that High Court;
- Wherein corresponding courts are not subordinate to the same High Court, then an application is to be filed before the High Court within the territorial jurisdiction of the court where the proceedings are pending;
- The Supreme Court has been conferred with power “to transfer any suit, appeal or other proceedings from one High Court to another Court, or from one Civil Court in the State to another Civil Court in any other State.”
Grounds for Transfer
Convenience of the parties though is an absolute postulation for acting under Section 22 of the code, but it cannot be the only criteria. Though minimal convenience of the parties may not be enough for the exercise of power, it should be shown that trial in the chosen forum will result in the repulse of justice.[4]
There is uniformity of persuasion that balance of convenience is of paramount consideration for the transfer of a suit.[5] Balance of convenience means neither the convenience of the plaintiff alone nor of the defendant alone but for both. The court has to take consideration of the following for determining the balance of convenience:
- Ease for the plaintiff and the right to choose his own forum;
- Ease for the defendant;
- Convenience of the witness required for a proper trial of the suit;
- Convenience of a particular place of trial having regard to the nature of evidence;
- Complexion of issues in the suit.
In Manjari Sen v. Nirupam Sen[6], it was held by the High Court of Delhi that requirement of prior notice cannot be regarded as mandatory unless it has caused prejudice to the other side. It is, however, submitted that the requirement of giving notice must be held to be mandatory. And an order of transfer without notice to the opposite party should be held to be bad in law being violative of the principles of natural justice.
Duty of The Court
Where Court is of the persuasion that the petitioner or the respondent isn’t probably going to have a “fair trial” in the court from which he wants to transfer the case, it isn’t just the power, yet the obligation of the court to transfer the case.[7]
The court should go into the contents of the transfer application and should prima facie be satisfied that the case is made out for transfer. Only than application granting transfer is valid.[8]
No notice is necessary if the Court acts suo motu. But if an application is made, notice is must and an order for transfer made without notice will be set aside, and so will an ex parte decree made by a Court to which a suit has been transferred without notice to the defendant.
Justice Krishna Iyer, made the following remarks in the landmark judgement of Maneka Sanjay Gandhi v. Rani Jethmalani[9],
“Assurance of a fair trial is the first imperative of the dispensation of justice and the criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal service or 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 to transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case.”
At the point when the party files an application for transfer alleging of bias, prejudice or partiality have been levelled against the Presiding officer of a court, the judge concerned should be called for before making an order of transfer. In such report, the Presiding officer will give his version in respect of averments and allegations made against him.
In Kaushalya Devi v. Mool Raj[10], in a transfer filed by the accused, the Delhi Administration filed an affidavit of the Magistrate against whom the transfer application was made. Over and above, denying the allegations made by the accused, the Magistrate tried to justify his order on merits. The Supreme Court deprecated the action over the “partisan role” of the magistrate and stated:
“A little reflection would have satisfied him of the gross impropriety of his action in making an affidavit like the present. It is an elementary principle of the rule of law that judges who preside over trials, civil or criminal, never enter the arena.”
Lack of Jurisdiction
The Supreme Court in the matter of Neha Arun Jugadar v. Kumari Palak Diwanji[11], held that where a party asserts that the court where the case is pending has no jurisdiction, he ought to apply to that court for dismissing it on this ground. There is no doubt of transfer such a case.
Transfer between Benches of Supreme Court
Where after oral hearing of a case a party wish to transfer the case from one Bench to the other, it cannot be done so unless the Bench is discriminatory or any other reasonable grounds for the same which may prejudice one of the party. No such right can legitimately be claimed merely because the judge expresses an opinion on the merits of the case.[12]
Transfer of Matrimonial Proceedings
In a matrimonial dispute, proceedings can be transferred at a convenient place in favour of a woman with a minor child.[13]
Transfer to Special Court from District Court
The District Court cannot withdraw a suit pending before any other subordinate court and direct the transfer of the same to the special court, as the jurisdiction of the special court and District court are mutually exclusive.[14]
Application for Transfer after Hearing
It is no doubt that the transfer application can be filed at any stage during the proceedings. However, as the discretionary power of transfer of suit, requires to be exercised in the interests of justice, the court may refuse such prayer if it is made mala fide or with a view to obviate an adverse decision after the hearing is over.
In Gujarat Electricity Board v. Atmaram Sungomal Poshami[15], A, an employee of the Electricity Board was transferred, however, he didn’t continue service at the transferred spot. Disciplinary procedures were, in this way, taken and his service was ended. A deprived of his rights filed an appeal before the High Court challenging the original decision, which was allowed by the High Court. The Board moved toward the Supreme Court.
The appeal was posted for hearing and was completely heard. The court was fulfilled that the High Court was a mistake in granting relief to A. The issue was deferred. On the following date of hearing, another advocate stepped in to argue the issue. They did not hear him. Whereby, an application was filed by A for transferring of the suit to some other Bench communicating his “no confidence” in the Bench where the issue of the suit was adjudicated. Depicting the petition as “irregular. Uncalled for and unjustified”, the court turned down the solicitation.
Retransfer
When a suit is transferred for joint trial with another suit which was decreed and an appeal against the decree is pending for adjudication, then an application can be filed for retransfer of the transferred suit.[16]
Conclusion
As stated about over, the intensity of transfer must be practiced with due consideration, alert and in light of a legitimate concern for justice. The court should consistently choose the inquiry in the light of guaranteeing reasonable preliminary and appropriate regulation of equity. What’s more, if the parts of the justice demands transfer of a case, the court ought not to stop for a second to allow the equivalent.
Whereas, mere inconvenience of the party or bare and vague allegations by an interested party about insecurity or even a threat to his life is not sufficient to transfer a case. Want of territorial jurisdiction of the court to which the case is transferred, though a relevant factor, is not conclusive and will not be an impediment to the power of the court ordering the transfer.
[1] Indian Overseas bank v. Chemical Construction, (1979) 4 SCC 358
[2] Krishnaji Rao v. Gokaldas, AIR 1955 Mys 115.
[3] Durgesh Sharma v. Jayshree, (2008) 9 SCC 648
[4] DAV Boys Sr Secondary School v. DAV College Managing Committee, (2010) 8 SCC 401.
[5] Kulwinder Kaur v. Friends education Trust, (2008) 3 SCC 659.
[6] AIR 1975 Del 42
[7] Kulwinder Kaur v. Friends education Trust, (2008) 3 SCC 659.
[8] Ramesh v. Zubeda Begum Abdul Kadar Kazi, AIR 2013 Bom 142.
[9] (1979) 4 SCC 167
[10] (1964) 4 SCR 884
[11] AIR 2011 SC 1164
[12] Gujarat Electricity Board v. Atmaram Sungomal Poshami, (1989) 2 SCC 602
[13] Arti Rani v. Dharmendra Kr Gupta, (2008) 9 SCC 353
[14] V Rajeshwar Rao v. M Yadgiri Reddy, 2007 (1) ALT 306
[15] (1989) 2 SCC 602
[16] Bihar State Food & Supplies Corpn Ltd. V. Godrej Soaps Pvt. Ltd., AIR 1997 SC 3779
