TRANSFER OF CASES UNDER THE CODE OF CIVIL PROCEDURE 1908

INTRODUCTION

The court must maintain impartiality when dealing with parties involved in a dispute. Therefore, when a plaintiff initiates a suits in their preferred location, as outlined in the “Code of Civil Procedure 1908”, the defendant is required to appear before the court and submit a written statement, presenting objections to the plaintiff’s suit. If the defendant raises concerns related to the court’s jurisdiction based on provisions within the Code of Civil Procedure, the court must initially address the jurisdictional issue. If the court determines that it lacks jurisdiction, it is obligated to transfer the lawsuit, following the guidelines. Nevertheless, if either party encounters difficulties at any point during the legal proceedings and wishes to relocate the case to a different place or court of their choice, they have the remedy to file a transfer petition in the relevant court in accordance with such applicable law.

If the defendant has not consented to the chosen location for the suit, the court cannot commence the proceedings. However, it is within the court’s authority to reject the defendant’s application to transfer the suit, compelling the defendant to proceed with the suit in the original location. In addition to the involved parties, the court, at its discretion, possesses the authority to transfer the suit. This authority is granted to them by the Code of Civil Procedure of 1908, enabling them to address such matters and transfer the suit to another court with the appropriate jurisdiction if the interests of justice necessitate such a move.

Through this research, the author has tried to critically analyze the provisions under the Code of Civil procedure relating to the Transfer of Cases with case laws.

Relevant provisions related to Transfer of Cases

Section 22 of the Code of Civil Procedure contains the substantive provision that empowers the Civil Court to transfer suit. This section outlines the two essential conditions that must be met before a suit transfer can be initiated:

1. The application for transfer must be made to the court before the resolution of the issues between the parties in the case.
2. Once the application for transfer has been submitted by one party, notice of this application should be sent to the opposing party.

The Court, after considering the objections and arguments put forth by both parties, will determine which court has the appropriate jurisdiction and decide the suit in question. It’s important to note that, as established in the case of Ms. Basanti Devi v. Mst. Sahodra ⁴, “when considering an application for the transfer of a suit under Section 22, the court should not only take into account the consent of both parties but should also assess the overall circumstances that suggest whether the case should proceed in a court different from the one where the plaintiff initially filed it. This ensures a comprehensive evaluation of the transfer request.”

“Section 23 of the Code of Civil Procedure specifies the appropriate court to which an application for the transfer of a suit should be submitted based on the jurisdiction of the courts involved”:

1. If multiple courts have jurisdiction that is inferior to the same appellate court, the application for transfer of the suit should be filed before that common appellate court.
2. If the courts in question have jurisdiction inferior to different appellate courts but fall under the jurisdiction of the same High Court, the application for transfer must be filed with that High court.
3. When the courts involved are inferior to different High Courts, the application for transfer must be submitted to the High Court within the local limits of whose jurisdiction the court where the suit was originally filed is located.

These provisions ensure that the application for transfer is directed to the appropriate higher authority, whether it’s the same appellate court, the same high court, or a specific high court with jurisdiction over the area where the suit was originally filed.

Section 24 of the Code of Civil Procedure⁷ deals with the jurisdiction for the transfer of a suit or the handling of appeals or revisions. Importantly, this section allows for the exercise of the power of transfer by the District Judge or High Court suo moto, even in the absence of a formal application for transfer from any party involved in the case. The transfer should be based on valid and justifiable reasons, taking into account both the law and the specific facts of the case. This means that the court should consider the circumstances and merits of the case as a whole when deciding whether a transfer is necessary. Section 24 states that the court has the power to transfer or withdraw cases in specific circumstances, either in response to an application by the parties or Suo moto.

Here are the prevalent powers and procedures associated with the transfer of cases under Section 24 CPC:

1. Transfer of Suits or Proceedings by Application: When the court receives an application for the transfer of a case from the involved parties, it must serve notice of this application to all parties and hear their objections. Following this, “the High Court or the District Court may, at any stage of the suit:”

– Transfer an undecided suit or proceeding to a court inferior to it that is deemed suitable for trial or disposal.

– Withdraw an undecided suit or proceeding from any court inferior to it and either:

– Proceed to try or dispose of the case itself.

– Transfer the case to a court inferior to it that is fit for trial or disposal.

– “Re-transmit the case for trial or disposal to the court from which it was removed.”

2. Retrial or Resuming from a “Transferred Stage: When a suit or proceeding is transferred or withdrawn, the court can either retry it or continue from the stage at which it was transferred or withdrawn.”
3. Judicial Discretion: The court should exercise its discretionary power with respect to the transfer of the case impartially, guided by principles of justice and equity. The court should objectively consider the grounds and reasons for transfer and ensure that the application is not motivated by mala fide intentions. If an application for transfer is found to be frivolous or made with ill intent, the court has the authority to dismiss it.
4. Notice to Parties: When an application is made under Section 24 CPC for the transfer of a case to the High Court and a notice is sent to the parties, it is considered an original proceeding according to Section 141 of the Code of Civil Procedure.
5. Recording Reasons: When applying for the transfer of cases to a higher-level jurisdiction, the court should clearly document the reasons or grounds for the transfer under Section 24 CPC. These reasons should be recorded separately from the main case facts, and the transfer application record should be maintained separately in the court’s records. The original order related to the transfer should be kept in the proceeding record, and a copy should be sent to the relevant court.

In essence, Section 24 empowers the District Judge or High Court to proactively intervene and transfer cases in the interest of justice and efficiency, even if no formal application for transfer has been filed, provided that valid grounds and principles are observed during the transfer process.

Section 25 of the Code confers”the Supreme Court of India with the authority to transfer suits or proceedings from one state to another state’s High Court or Civil Court.”The following are the power and procedure outlined in the given section:

1. Application for Transfer: The power to transfer suits or proceedings under Section 25 CPC can be exercised in response to an application filed by any of the involved parties. This means that any party to the case can apply to the Supreme Court for the transfer of a suit or proceeding from one state to another.
2. Notice and Hearing: Once such an application is filed, the Supreme Court must send notice to all parties involved in the case. After providing an opportunity for both parties to present their arguments and objections, the court shall consider the matter.
3. Grounds for Transfer: The Supreme Court may order the transfer if it is convinced that such an order is necessary and expeditious for the purpose of procuring the ends of justice. This implies that the transfer should concur with the interests of justice and should be in the best interest of a fair and just resolution of the case.
4. Interstate Jurisdiction: The primary purpose of Section 25 CPC is to facilitate the transfer of cases between states within India. It allows for cases to be moved from the jurisdiction of one state’s High Court or Civil Court to another state’s High Court or Civil Court when it is deemed necessary for the ends of justice.

This section ensures that the Supreme Court has the authority to intervene and transfer cases when deemed necessary to uphold the principles of justice and fairness.

EFFECT OF ORDER OF TRANSFER

An order of transfer becomes effective as soon as it is issued by the court. It does not depend on whether the order has been formally conveyed to the subordinate court. Once the order is issued, the case is considered transferred to the designated court

TRANSFER WHEN ALLOWED AND WHEN NOT ALLOWED

TRANSFER WHEN ALLOWED

1. Reasonable Apprehension of Injustice: If a party has a reasonable fear that they may not receive a fair trial in the current court due to bias or a charged atmosphere, the case may be transferred, as established in Raghunandan v. G. H. Chawla.
2. Balance of Convenience: In cases like Jotendro Nath v. Raj Kristo where the convenience of the parties and the location of the property favor a different court, the case may be transferred. In this case, the parties were residents of Calcutta and so the case was transferred.
3. Avoiding Multiplicity and Conflict: To prevent multiple proceedings and conflicting decisions on the same cause of action, as held in Rajulu v. Govindan. Wherein two persons filed suits on same cause of action.
4. “Common Questions of Fact and Law: If multiple suits in different courts involve common questions of fact and law that are interdependent, they may be tried together for efficiency, as in Purna Chandra v. Samantha.
5. Judge’s Interest in One Party: When there is prejudice or reasonable justification, as in Gujarat Electricity Board & Anr v. Atmaram Sungomal Poshani, a case may be transferred to another Bench.

TRANSFER WHEN NOT ALLOWED

1. Mere Convenience: Transfer based solely on the convenience of the applicant may not be a sufficient criterion, as held in Indian Overseas Bank v. Chemical Construction Co.¹⁵
2. Judge’s Remarks on Merits: Judges’ opinions on case merits, as in Gujarat Electricity Board & Anr vs Atmaram Sungomal Poshani¹⁶, do not automatically justify transfer.
3. Erroneous Judge’s Order: An erroneous order does not necessarily imply bias and may not be a ground for transfer, as per Madan Lal v. Babul Lal.
4. Opponent’s Influence: The mere influence of an opponent in the locality, as in Dr. Subramaniam Swamy v. Ramakrishna Hegde, may not warrant transfer.
5. Distance from Applicant’s Residence: The distance from the applicant’s residence, as seen in Arvee Industries v. Rata Lal,¹⁸ is not a strong ground for transfer if the cause of action originates from civil proceedings in the current court.

case laws

• In the case of Indian Overseas Bank v. Chemical Construction, the court ruled that when considering the transfer of a suit, the primary factor to be taken into account is the “balance of convenience.” This balance of convenience should not be limited to the convenience of either the plaintiff or the defendant alone but of both parties involved in the case. In other words, the court should weigh the overall convenience and fairness for all parties concerned when making decisions regarding the transfer of a suit.
• “In the case of Guda Vijayalakshmi v. Guda Ramchandra Sekhara” Sastry, the petitioner, a wife seeking maintenance, initially filed a suit as an indigent person (in forma pauper) in Eluru, Andhra Pradesh. The respondent, her husband, then filed a divorce case against her in Udaipur, Rajasthan. “The petitioner subsequently filed a transfer petition under Section 25 of the CPC, seeking to move the respondent’s divorce case from Udaipur to Eluru. The court determined that, in the interest of justice, it would be convenient to transfer the respondent’s suit from the District Court in Udaipur to the District Court in Eluru so that both cases could be heard together.”

The authority to transfer of suits must be exercised judiciously, with careful consideration and a primary focus on serving the interests of justice. The court’s responsibility is to weigh and resolve conflicting interests in a fair manner. The paramount concern is ensuring that justice is served, and if the pursuit of justice necessitates the transfer of a case, the court should not hesitate to do so.

The primary objective of our judicial system is the dispensation of justice, and if the interests of justice require it, the court should not hesitate to transfer a case. The court bears a moral responsibility to maintain trust and confidence in the justice system. However, there are certain limitations and circumstances under which case transfers can or cannot be allowed, as they can introduce inconvenience and complexity into the legal process. Relevant factors must be taken into account when deciding whether a case should be transferred. These factors may include the location of witnesses and evidence, the convenience of the parties involved the stage of the legal proceedings, and the overall impact on the administration of justice. The objective of the court is to achieve a fair and effective resolution of the dispute while balancing the interests of the parties.

About the Author

Adv. Mukesh Kumar sah (9643655911) Advocate Mukesh Kumar Sah has been practicing and handling cases independently with a result-oriented approach, both professionally and ethically and has now acquired many years of professional experience in providing legal consultancy and advisory services