TRANSFER OF CIVIL

SUITS

CODE OF CIVIL PROCEDURE, 1908

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY

LAW

PAVNEEKA PARASHAR

17IP63020

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 INDEX
1. INTRODUCTION 3

2. OBJECTIVE OF TRANSFER OF CIVIL SUITS 4

3. GROUNDS ON WHICH CASES CAN BE TRANSFERRED 4

4. FEATURES OF THE POWER OF COURT TO TRANSFER CASES 5

5. TRANSFER OF SUITS 6

6. COMPETENT COURT TO ISSUE TRANSFER ORDER 7

7. GENERAL POWER OF TRANSFER AND

WITHDRAWAL 7

8. POWER OF SUPREME COURT 8

9. CONCLUSION 9

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1. INTRODUCTION

The Code of Civil Procedure, 1908 (CPC) applies to all proceedings in a court of civil
judicature. Civil cases involve conflicts between people or institutions such as businesses,
typically over money. A civil case usually begins when one person or business (plaintiff)
claims to have been harmed by the actions of another person or business (defendant) and
asks the court for relief by filing a complaint and starting a court case. The plaintiff may
ask the court to award damages (money to compensate the plaintiff for any harm
suffered), or may ask for an injunction to prevent the defendant from doing something or
to require the defendant to do something, or may seek a declaratory judgment in which
the court determines the parties' rights under a contract or statute.

Courts are there to settle the disputes between individual persons and to declare and
establish their rights regarding the matters in dispute. So, whenever persons fail to solve a
dispute among themselves, they approach the court by filing a suit, called institution of
suit. There are various categories of courts. All categories can be classified under Courts
of First Instance and Appellate Courts. As per Section 15 of Code of Civil Procedure,
1908, every suit shall be instituted in the Court of the lowest grade competent to try it.
Every court has specific pecuniary and territorial jurisdiction.

In civil procedure, the jurisdiction of civil court is at the root of any suit. It is the primary
criterion on the basis of which the civil court can adjudicate upon a dispute. Any decree
given by a court which is lacking jurisdiction in a nullity and the same may be impeached
at any stage. Given this general principle of the CPC, there are some cases where multiple
civil courts may have jurisdiction to entertain and adjudicate upon suit. Section 16 and
Section 19 of CPC, 1908, confer jurisdiction to multiple courts based on various criteria.

In every civil dispute, the plaintiff has the right to decide the forum where he/she wishes
to institute the suit provided it has the jurisdiction to try the suit. However, in such cases
where more than one forum is available and even otherwise, this right of the plaintiff is
limited by the power of superior Courts to transfer or withdraw the case from a
subordinate Court to another Court. Sections 22 to 25 of the Civil Procedure Code, 1908
deal with the law relating to transfer of civil suits.

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 2. OBJECTIVE OF TRANSFER OF CIVIL SUITS

The entire judiciary is viewed with utmost respect and with an expectation that the judiciary
would do very fair and equitable justice to the person coming before them or pleading for
genuine redressal of any complaint of grievance. The court should always maintain a fair
view that court should not only do fair justice but the justice should be pronounced in such
a manner that a clear message should be made to everyone that justice is made. The
judiciary is the most sanctified body to deliver justice and has always maintained a very
strict view regarding fairness in trail procedures and trail fairness. So in order to protect the
reputation of the courts and the maintain high order of moral standards between the
members of judiciary the code of Criminal Procedure and the civil procedure code have
enough reasonable grounds to transfer cases from one court to another court.

The main intention of delivering justice or to decide a matter is to address a public sentiment
although there are various provisions regarding appeal. But such practices would impart
tremendous pressure on the mechanism of judiciary and the judiciary would further be
burdened with more pendency and delayed justice to all which may consequently create
more dispassion and unrest about judicial processes. So to address all such burning issue
the statutes already provides certain provisions regarding the transfer of cases from one
court of trail to another court of trail.

3. GROUNDS ON WHICH CASES CAN BE TRANSFERRED

 It is the utmost duty of the court to take all such measures to meet up the ends of justice
and to pronounce the judgment which should also send a good message in the society that
justice was not only done it was done with an impact that it appears that justice is done.
The court is the most trusted and sacred institution. And every person holds a very high
relative position and respect for court and its decisions. So the courts have extra moral
obligation to keep the spirit of trust and confidence alive within this machinery. This
ground to meet the ends of justice have a vide connotation it could be easily understood
that this authority would have high degrees of discretionary powers which could be used
in accordance with the factual quantum to provide justice to all the subject litigants. The

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 factual matrix of every trail weather civil or criminal proceedings is quite different so in
order to ascertain a pre-managed situation for dealing may not ensure a fair trial or may
even end up causing irreparable loss to the interest of the litigants. Therefore, the court
has been vested with such discretionary authority to determine such question regarding
transfer of court.
 The trail court deems it fit to be transferred from its purview or the determination of the
trail may involve such substantial question of law. Determining substantial question of
law far above its jurisdiction would render the complete trail fruitless.
 The transfer order is an exercise of administrative power of the Court. This is based on
the balance of convenience of the parties. As the matter has various connotations, the
Courts are very much circumspect on issuing such orders. Mere apprehension or only
flimsy reasons are not sufficient to have such an order.

4. FEATURES OF THE POWER OF COURT TO

TRANSFER CASES

 This power is a limited power. It is applicable only in respect of the cases where more
than one court is competent to entertain the suit and the plaintiff has filed the suit in one
of such courts.
 This power is not available when the plaintiff is suing on a contract which contains
“Forum Shopping Clause” – conferring the jurisdiction in respect of adjudication of
disputes arising out of the contract on a specified court. In this type of suits, the issue is
not whether one particular court has jurisdiction or not, but rather the defendant could file
the suit in the court in question, in view of the contractual clause.
 The application under Section 22 of the CPC can be filed only by the defendant. If
multiple defendants are there in the suit, then any one defendant can file application under
the section
 The application has to be filed within a specified period of time. Section 22 specifies that
such application has to be filed at the earliest possible opportunities and in all possible
cases at or before settlement of issue. This provision is very important and is strictly
adhered to. The Court cannot relax this by invoking his power under Section 151 of CPC.

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 Before filing transfer application, the defendant has to give notice to all the other
parties. This is a mandatory provision. Without complying with this no transfer
application is entertained.

 All the parties to the suit (except the applicant) have the right to file objections to the

transfer application. Considering all the objections, the Court shall determine the most
appropriate Court to adjudicate upon the suit.

5. TRANSFER OF SUITS

Section 22 (Power to transfer suits which may be instituted in more than one court)
of the CPC, 1908, is concerned with a case where the plaintiff has the choice of two or

more courts in which he may properly institute a suit. It deals with the right of the

defendant to apply to a court to have the case transferred from the court in which it is

filed to another court, and postulate that the several courts concerned shall have

jurisdiction, an order under Section 22 is based on the balance of convenience. However,

the paramount consideration is preserving the interests of justice.

The plaintiff’s right to select his own forum as arbiter litis is controlled by the power of
transfer, but it ought not lightly to be interfered with. If the defendant has pleaded want of

jurisdiction of the court in which the suit has been instituted, he cannot apply under the
section for transfer.

The provisions of the section as to notice and time of application are mandatory. Notice

should be given to all the parties impleaded in the suit, whether as plaintiff or as

defendant and not merely to the parties arrayed on the opposite side and such notice must

be given prior to the making of the application itself. An order of transfer made without

the requisite notice is without jurisdiction. However, where a court acts suo moto, such
notice is not necessary.

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 6. COMPETENT COURT TO ISSUE TRANSFER ORDER

Because of importance on the justice delivery process, the power of transferring any suit from

one court to another is given to the higher courts in the judicial hierarchy. Sections 22 and 23

are complimentary to each other. While Section 22 permits the defendant to apply for a

transfer of the suit subject to the conditions mentioned therein, Section 23 specifies the court

to which the application should be made. An application under Section 23 must, therefore,

fulfil the conditions mentioned in Section 22. A court of a subordinate judge is subordinate to

the district court no matter what the forum of appeal may be in the particular case for the
transfer of which the application has been made.

Section 23 (To what Court application lies) of the CPC, 1908, makes a classification of
cases based on the transferor and transferee courts:

1. Where the suit is to be transferred from one civil court to another within the same

appellate court;

2. Where the suit is to be transferred from one civil court to another within different

appellate courts but within the same High Court;

3. Where the suit is to be transferred from one civil court to another with the jurisdiction
of different High Courts.

In the first type of case, the transfer application has to be filed to the appellate court to which

both the civil courts are subordinate. In the second type of case, the transfer application has to

be filed to the High Court under whose jurisdiction both the civil courts are subordinate. In

the third type of case, the transfer application has to be filed to the High Court in whose
jurisdiction the transferor civil court is situated.

7. GENERAL POWER OF TRANSFER AND

WITHDRAWAL

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Section 24 (General power of transfer and withdrawal), an application can be made by
any of the parties to a suit, appeal or other proceedings. It deals with the general power of
High Court, or a district court to either transfer or withdraw any suit, etc. It is a special
provision conferring general powers of transfer and withdrawal of cases on superior courts. It
may be exercised at any stage of the proceeding and even suo moto. The power can be
achieved for equal distribution of work among courts.

(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

(i) try to dispose of the same: or

(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or
dispose of the same; or

(iii) re-transfer 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 is thereafter to try or dispose of such Suit or proceeding may, subject to any
special directions in the case of an order of transfer, either retry it or proceed from the point
at which it was transferred or withdrawn. -

(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.

(5) A suit or proceeding may be transferred under this section from a court which has no
jurisdiction to try it.

8. POWER OF SUPREME COURT

Section 25 (Power of Supreme Court to transfer suits, etc.), as it originally stood,

empowered the State Government to transfer a suit, appeal or other proceeding pending in a

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High Court presided over by a single Judge to any other High Court with the consent of the
State Government of that Court.

The old section has, however, been substituted by the new section which confers the power of
transfer a suits, etc. from a High Court or civil court in one State to another High Court or
other civil court in any other State. The Supreme Court has similar power of transfer as it has
in regard to criminal cases under section 406 of the Code of Criminal Procedure, 1973.

There is then the power of the Supreme Court to transfer suits, which is provided in section
25 of the Code. On the application of a party to the hearing of a suit, appeal or other
proceeding pending in a High Court or civil court in one State and after notice to the parties,
and after hearing them, the Supreme Court may, at any stage, if satisfied that an order under
this section is expedient for the ends of justice, direct transfer of such suit, appeal or other
proceeding to another High Court or other civil court in another State.

The Supreme Court’s power to transfer suits is not curtailed or excluded by sections 21 and
21-A of the Hindu Marriage Act. It can transfer suit for judicial separation by the wife and
that by the husband for restitution of conjugal rights filed in two different States to have joint
or consolidated hearing or trial of both the petitions by one and the same Court in order to
avoid conflicting decisions being rendered by two different Courts.

The plaintiff has the right to choose his own forum and burden lies on the applicant to make
out a strong case for transfer. A mere balance of convenience in favour of proceedings in
another court may be a relevant consideration but will not be a sufficient ground for transfer.

As a general rule the court should not interfere unless the expenses and difficulties 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 working injustice. Another valid ground for transfer is the abuse of the process of
the court.

Under this section, the Supreme Court can transfer a case from one High Court to another in
the ends of justice. What is expedient for the ends of justice under this section will have to be
judged upon the totality of facts and circumstances in a given case. The Supreme Court can
even withdraw any suit or petition to itself. The cardinal principle for the exercise of
jurisdiction to transfer a case is that the ends of justice demand a transfer. All High Courts
stand on the same footing so far as the Supreme Court is concerned.

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9. CONCLUSION

To summarize the relationship between the sections discussed above it may be said that
Section 22 can be invoked only by the defendants whereas Section 24 gives either party to
a suit the right to get the suit transferred but this transfer sought must be within the state.
To get the case transferred from one state to another, one has to approach the Supreme
Court and such a transfer is allowed only for very compelling reasons. The ends of justice,
fair trial and principles of natural justice are kept in mind while disposing of such
applications for transfer of suits. Procedural law is the backbone of the legal system; it not
only facilitates but also ensures that justice is done. The lack of proper and fair procedures
can often lead to injustice and chaos.

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