JAMIA MILLIA ISLAMIA

Faculty of Law

Project

POWER OF SUPREME COURT TO

TRANSFER SUITS
Civil Procedure Code, 1908

Civil Procedure Code-I

SUBMITTED TO: - Dr. EAKRAMUDDIN SIR

SUBMITTED BY: - MD AL FAHAD ALI

B.A.LL.B (Self-Finance) 7th Semester

Session: 2020-2021
 ACKNOWLEDGEMENT

I would like to express my heartfelt gratitude and thank my professor, Dr.

EAKRAMUDDIN Sir, for instilling confidence in me and entrusting the task to

carry out a project on POWER OF SUPREME COURT TO TRANSFER SUITS.

It was very difficult task to carry out research work during the pandemic of
COVID-19, but the supportive materials provided by Sir were very useful
during my assignment.

I am indeed privileged having being groomed in a prestigious institution like

Jamia Millia Islamia, New Delhi. I would also like to express my gratitude to
my friends and family for their support and help during this research work.

Thanking You!

Md Al Fahad Ali
 TABLE OF CONTENTS

1. Introduction
2. Section 25
3. Jurisdiction of the Supreme Court under Article 139-A
4. Grounds
5. Justice
6. Transfer allowed
7. Transfer not allowed
8. Conclusion
1. 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.

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.

Constitution has established institutions to take care of any disputes that arise in the society;
one such institution is the Code of Civil Procedure, 1908. Civil procedure is the set of
directions that one must follow when they turn towards the justice system in order to settle a
dispute that is not criminal in nature.

A forum must be approached in order to resolve every dispute. In each civil dispute, the
offended party has the privilege to choose the forum where he/she wishes to establish the suit
given it has the jurisdiction to try the suit. When a suit has been filed by one party that is
plaintiff of his choice, the other party that is the defendant has couple of choices either to

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.
accept the place of suing and file the written statement or to file the application for the
transfer of the suit in case if he is not satisfied with the place of suing.

Without the acceptance of the defendant the court cannot start with the proceedings however,
the court may reject the application for the same and the defendant has to accept it. Apart
from the parties the courts at its discretion have the power to transfer the suit.

Sections 22 and 23 deal with the rights of the defendant to apply for the transfer of a suit,
while Sections 24 and 25 authorize certain courts to transfer the suit.

Section 22:

Power to transfer suits which may be instituted in more than one court:
In Section 22 of Code of Civil Procedure the plaintiff gets right to institute the suit in any
competent court and after this the defendant gets the right to apply for the transfer of the suit
at the earliest of the time after notifying about the purpose of the application to the plaintiff.
The court may also consider the objection, if there any, of the plaintiff in matter of transfer of
the suit from the court where the suit has been instituted to another court. And so further after
clearance of the objection the suit will be transferred to that court only which has jurisdiction
to proceed with that case.
Section 22 and 23 are complementary to each other, as section 22 confers a power on the
defendant to apply for the transfer to the conditions mentioned therein and section 23 dictates
where the application for transfer of suits be made. There must be suitable conditions
mentioned in the application as it may be, further, liable for the dismissal of the application
and this application must be made before the settlement of the issue.4

Stay of Suit:

Section 20 of the code, provided for stay of proceeding to compel the plaintiff to take case to
other court. This provision is further omitted and sufficient provisions have been added in
sections 22 to 24. But the court can stay on a suit if there is abuse of this process. In a suit
filed in the Bombay High Court, the fact that both the parties and the witnesses of the
defendants were residents of Wardha in Central Provinces (Now Madhya Pradesh ) was held
not to justify an order for the stay of the suit.5
4
Rajnath v. Adityanath, AIR 1953 ALL 772
5
Gefferi v. Rukchand (1889) Bom 189.
Section 23:

To what court application lies:

-Where the several courts having the jurisdiction subordinate to the same appellate court then
an application, u/s 22, shall be made to the appellate court.

-Where such courts are subordinate to different appellate courts but to the same High Court
then the application shall be made to the High Court.

-Where such courts are subordinate to different High Courts, the application shall be made to
the High Court within the local limits of whose jurisdiction the court in which the suit is
brought is situated.

In Mamta Gupta v. Mukund Kumar Gupta6both the suits filed by the respondent husband
were pending in the file of Family Court at Hyderabad which is subordinate to the High Court
of Andhra Pradesh and the petitioner wife seeks both the suits to be transferred to a
subordinate Court i.e., Family Court, Indore which is subordinate to the High Court of
Madhya Pradesh. In the case before the Supreme Court in Western Uttar Pradesh Electronic's
case7the Western Uttar Pradesh Electric & Power Supply Company Limited filed a suit
against the Hind Lamps Ltd. in the civil Court at Mainpuri claiming amounts towards charges
for the electricity consumed during February and March, 1962 and the minimum guarantee
charges from 1st April to 30lh September 1962.

 SECTION 25:

An Application for transfer of Suit under Section 25:

Section 25 of the Code of Civil Procedure empowers the Supreme Court to transfer any Case,
appeal or other proceedings from High Court or another civil court in one State to a High
Court or other civil court in any other State. This power might be practiced by the Supreme
Court if it thinks that it is fulfilled of the order under this Section is convenient for the end of
the justice. Therefore the wide powers are given to the Supreme Court to order a transfer if
the court thinks the end of the justice is so required.

6
 2000 (3) ALD 285.
7
Western U.P. Electric & Power Supply Company Limited v. State Of U.P. & Anr., 1970 AIR 21.
The vital thought for the transfer of a case under Section 25 of CPC must be the prerequisite
of justice. The insignificant comfort of the parties or anybody of them may not be sufficient
for exercising the power, but rather it ought to try and be demonstrated that trial inside the
chosen forum can prompt denial of justice. The Court held that if the ends of justice so
demanded and the transfer of the suit are basic, there ought to be no delay to transfer the
case.8The privilege of the dominus litis to pick the forum and consideration of plaintiff's
convenience and so on can't obscure the prerequisite of justice. Justice must be done no
matter what; if essential by the transfer of the case from" one court to another.

This provision has been frequently invoked in marital matters, and for the most part at the
occurrence of the spouse. At the point when the couple are living independently and the
husband records - an petition for separation or brings different procedures under the law
identifying the marriage and separation at the place where he is residing, which is normally
the spot where the parties last lived together, the wife, who has regularly come back to her
parental home, moves for transfer either on the ground that she can't stand to travel or that
she can't leave her child or that she confronts dangers when she goes to defend the
proceedings. The Court perpetually takes a thoughtful perspective towards the wife's request
for transfer, yet this is net dependable case. Court dismisses the plea of the wife for the
transfer of the matrimonial proceedings from Mumbai to Palanpur.9

In Shiv Kumari Devendra Ojha v. RamajorShitla Prasad Ojha case10

The court dismissed the transfer of an application for grant of a succession certificate, from
Gujarat to U.P, on a ground that the respondent was ready to pay the expenses of the travel.
The Court further stated that if the petitioner is facing any difficulty in managing in any
counsel due to economical problem then she can file an application to recover the amount
paid for the same from the respondent.

8
Dr. Subramaniam Swamy v. Ramakrishna Hegde, AIR 1990 SC 113.
9
Kalpana Devi Prakash Thakar v. Dev PrakashThakar, AIR 1996.
10
Shiv Kumari Devendra Ojha v. RamajorShitla Prasad Ojha and Ors.. AIR 1997.
JURISDICTION OF THE SUPREME COURT TO WITHDRAW AND TRANSFER
CASES UNDER ARTICLE 139-A OF THE INDIAN CONSTITUTION:

Where cases including the same or considerably the same questions of law are pending in the
Supreme Court and one or more High Courts or, before two more High Courts, and the
Supreme Court is satisfied on its own motion or on an application made by the Attorney
General for India or by a party to any such case, that such questions are significant questions
of general importance Article 139-A(1) of the Constitution empowers the Supreme Court to
"withdraw" the cases pending before the High Courts to itself and discard all the cases
without anyone else's interference. This provision is regularly invoked when the
constitutional validity of a central enactment is tested. Article 139-A (2) empowers the
Supreme Court if it seems that it is convenient so to accomplish the ends of the justice, to
transfer any case, appeal or different proceedings pending before of any High Court to
whatever other High Court.
In Union Carbide Corporation v. Union of India11
The withdrawal of the primary civil suit and criminal proceedings to the Supreme Court was
tested on the ground that the requirements of Article 139 (A) of the Constitution were not
fulfilled. In dismissing the request that the case couldn't have been so withdrawn, the
Supreme Court held that Article-139 did not deplete its power of withdrawal and transfer and
that its power under Article 136 and 142(1) were additionally accessible for the reason.

 GROUNDS:

Right of the Plaintiff:

Plaintiff is Dominus Litis. Dominus Litis is a person to whom the suit belongs and has the
actual and direct interest in the suit. He has the right to choose his own forum and normally
this right of the plaintiff cannot be curtailed either by the court or by the court. It has been
mentioned under section 22. The court in Indian Overseas Bank v. Chemical Construction
Co.[32] held that plaintiff is the dominus litis and as such entitled to institute his suit in any
forum which the court allows. The forum should not be lightly changed and the person cannot
be compelled to go to another court with consequential expand in inconvenience and expense
of prosecuting his suit.

11
Union Carbide Corporation v. Union of India AIR 1989 1 SC 674.
Balance of Convenience:

There is unanimity of opinion that balance of convenience is of prime consideration for

transfer of suit. The expression balance of convenience has inspired deep legal concept and
has obtain the gloss many judicial interpretations. Restated in simple terms it is a question of
fact in case. Balance of convenience is neither the convenience of the plaintiff alone nor of
the defendant alone but of both. In determining the balance of convenience for the trail of a
suit, the court has to take into consideration five issues-

1.Convenience or inconvenience of the plaintiff and right of the plaintiff to choose his own
forum. The inconvenience that could have caused to the defendant if the suit would have
taken place in the forum chosen by the plaintiff may now be caused to the plaintiff if the suit
will get transferred to other forum.
2.Convenience and inconvenience of the defendant.
3.Convenience and inconvenience of the witness that is required for the proper institution of
the suit.
4.Convenience and inconvenience of a particular place of trail having regard to the nature of
the evidence on the main points involved in the suit and also having regard to the doctrine of
forum convenience.
5.Nature of issue in the suit.

In case of Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry12 where the

petitioner (wife) recorded a suit in forma pauper is seeking for maintenance from the
respondent (husband) in the court of, Eluru (Andhra Pradesh). On the receipt of the
notification of the case, the respondent filed a divorce case against the petitioner under
section 13 of the Hindu Marriage Act, 1955 in the court of the, Udaipur (Rajasthan). By the
moment transfer petition filed under section 25 C.P.C., 1908, the petitioner tried to get the
suit at Udaipur exchanged to Eluru. It was held that, on merits, it is convenient for the ends of
justice to exchange the respondent's suit pending in the District Court. Udaipur (Rajasthan) to
the District Court at Eluru (Andhra Pradesh), where both the suits could be attempted
together.

12
Guda Vijayalakshmi v. Guda Ramchandra, (1981) 2 SCC 646 (650)
JUSTICE:

There should be a search for justice and the respective Court must be content that justice
could more likely be done between the parties by not permitting the party to continue his case
in the forum of his own choice. A mere balance of convenience in favour of the trails in other
forum, though a material consideration, may not always be a sure criterion justifying transfer.

In Indian Overseas Bank v. Chemical Construction Co. (1979)13 the court held that only
balance of convenience for proceedings in another Court yet a material consideration may not
generally be a genuine criterion legitimizing the transfer. The power of transfer of a civil
proceedings to another Court gave under Section 25 C.P.C. on the Supreme Court is far more
extensive as is the sufficiency of the expression "convenient in the interests of justice" which
outfits a general rule for the exercise of the power.

Thus the plaintiff asarbiter litishas the right to choose any forum that allows him. And it has
been held that it is a substantive right like a right to appeal. But it subject to control under
sections 22-24. The burden lies on the applicant to make out a strong case for a transfer.
Asmere balance of convenience, in support of the trials in another forum,is not anadequate
ground though it is a significant consideration. As a general rule, the court should not
interfere unless the expenses and difficulties of the trial would be so considerate as to lead to
injustice or the case has been filed in a particular court for the purpose of working injustice.

Transfer allowed:

Transfer of cases from one court to another is a serious matter, because it indirectly casts
doubt on the integrity or competence of the judge from whom the matter gets transferred.
This should not be done without a proper or sufficient cause. If there are sufficient causes for
transferring a case from one court to another, they must be clearly set out.
1.Reasonable apprehension in the sense of the party that he might not get justice in the forum
where the suit is pending “ it was held by the court in
Raghunandan v. G. H. Chawla14 that a case must be exchanged if there is sensible realization
of a party to a suit that he won't not get justice in the forum where the case is pending. This

13
Indian Overseas Bank v. Chemical Construction Co., AIR 1979 SC 1514.
14
Raghunandan v. G. H. Chawla, 1963 MPLJ (Notes) 117.
might be on the grounds that the Judge is biased or on the grounds that there in the"
surcharged atmosphere no just trial is feasible.

2.Where balance of Convenience - In a suit of Jotendro nath v. Raj Kristo15 where in a suit
for partition instituted in the court, the parties were residents of Calcutta and the major
portion of immovable property was also situated in Calcutta, the suit was transferred to the
original side of the High Court of Calcutta on the ground principally, of convenience.

3.To avoid multiplicity of proceedings and conflict of interests – in case of Rajulu v.
Govindan16 where two persons filed suit against each other in different courts on the same
cause of action, the court held desirable that the suits should be tried by one and the same
court.

4.Where common questions of fact and law arises between the party – in case of Purna
Chandra v. Samantha17the court held that where there are suits in different courts which
raise common questions of fact and law, the decisions in which are interdependent, it is
desirable that they should be tried together by the same judge.

5.Where the judge is interested in one party –it was held in Gujarat Electricity Board
&Anr v. Atmaram Sungomal Poshani18 neither of the parties are qualified for get a case
transferred from one Bench to another, unless the Bench is prejudiced or there are some
reasonable justification for the same.

Transfer not allowed:

15
Jotendronath v. Raj Kristo, (1890)116 ILR Cal 771.
16
Rajulu v.Govindan, AIR (1938) ILR Mad 745.
17
Purna Chandra v. Samantha, AIR 1953 Ori 46.
18
Gujarat Electricity Board &Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433 (1436).
1.Mere balance of convenience to the applicant – in “Indian Overseas Bank v.
Chemical Construction Co.19 it was held by the court that the mere balance of convenience
for the trail in another Court though a material thought, may not generally be a genuine
criterion legitimizing the transfer.

2.Judge making adverse remarks regarding merits of the case – in case of Gujarat
Electricity Board & Anr vs Atmaram Sungomal Poshani20 the court held that no privilege
to get a suit transferred to some other Bench, can legitimately be asserted simply in light of
the fact that the Judges express conclusion on the merits of the suit on the conclusion of
hearing.

3.If the judge making an erroneous order – in case of Madan lal v. Babul lal21 the court
held that the mere fact an erroneous order has been passed is not in itself a ground for transfer
as it does not necessarily lead to an inference of bias.

4.Mere fact that the opposite party is a man of influence in the locality – in case of Dr.
Subramaniam Swamy v. Ramakrishna Hegde22 the court held that No prejudice, much less
substantial prejudice would be caused to the respondent if the suit is transferred as prayed.

5.Mere fact that the court is situated at a long distance from the residence of the applicant - in
case of Arvee Industries v. Rata Lal23 the court held that Since the cause of action has
emerged out of the civil proceedings initiated by the respondents in the Delhi Court, it will
add to the convenience of the parties so far as the creation of records.

Conclusion
The power of transfer must be practiced with great caution and attentiveness and in light of a

19
Indian Overseas Bank v. Chemical Construction Co., AIR 1979 SC 1514.
20
Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433 (1436).
21
Madan lal v. Babul Lal, AIR 1962 Mani 42.
22
Dr. Subramaniam Swamy v. Ramakrishna Hegde, (1990) 1 SCC 4: AIR 1990 SC 113.
23
Arvee Industries v. Ratan Lal, (1977) 4 SCC 363: AIR 1977 SC 2429: (1978)1 SCR 418.
legitimate concern for justice. The court while looking at the question must remember three
clashing interests, the offended party has the privilege to pick his own forum, the power and
the obligation of the court to guarantee a reasonable trial and the last agreement of justice.
The principal thought is necessity of justice. And, if the ends of the justice request transfer of
a suit, the court ought not to hesitate to act. At the same instant, simple burden of the party or
exposed or ambiguous affirmations by an interested party about insecurity or even a risk to
his life are not adequate to transfer a case. Need of territorial jurisdiction of the court to
which the suit is transferred, however an applicable element is not definitive and won't
obstacle to the power of the court ordering the transfer.

BIBLIOGRAPHY:
Books:
 M.P Jain, The Code of Civil Procedure, 2nd edition (2007).

Websites:
 https://www.lawctopus.com/academike/arrest-and-detention-under-civil-law/
https://lawtimesjournal.in/arrest-and-detention