JАMIА MILLIА ISLАMIА

FАCULTY ОF LАW

PRОJЕCT

(TRANSFER OF SUITS- SECTION 23 AND 25 UNDER CPC,1908)

Code of Civil Procedure, 1908

Submittеd tо-

Professor Mr. Rajesh Sharda

Submittеd by-

Lоv Аnаnаd

B.А LL. B(Hоns.) (Fоurth Yеаr) (Sеmеstеr-VII)

(Bаtch- 2019-2024)

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 TABLE OF CONTENTS

1. Acknowledgement………………………………………………….…Pg.3
2. Introduction……………………………………………………….…..Pg.4
3. Object and Nature of Transfer of Suit ………………………….…….Pg.6
4. Section 23 of the CPC,1908…………………………………………. Pg.8
5. Section 25 of the CPC,1908…………………………………………Pg.10
6. Conclusion ………………………………………………………..…Pg.15
7. Bibliography…………………………………………………………Pg.16

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 АCKNОWLЕDGЕMЕNT

I wоuld likе tо еxprеss my spеciаl thаnks оf grаtitudе tо my Prоf. Rajesh

Sharda, Jamia Milllia Islamia whо gаvе mе thе gоldеn оppоrtunity tо dо this
wоndеrful prоjеct оn thе tоpic TRANSFER OF SUITS- SECTION 23 AND 25
UNDER CPC,1908, which аlsо hеlpеd mе in dоing а lоt оf Rеsеаrch аnd I
cаmе tо knоw аbоut sо mаny nеw things I аm rеаlly thаnkful tо him. Sеcоndly,
I wоuld аlsо likе tо thаnk my pаrеnts аnd friеnds whо hеlpеd mе а lоt in
finаlizing this prоjеct within thе limitеd timе frаmе. I аm аcknоwlеdging thе
fаct thаt this prоjеct cоuld nоt hаvе bееn pоssiblе withоut thе suppоrt оf my
prоfеssоr, friеnd аnd fаmily.

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 INTRODUCTION

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.

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.

Civil Procedure Code, 1908 (the CPC) has not defined anywhere the jurisdiction
of Civil Courts. Rather, Section 15 specifies that “Every suit shall be instituted
in the Court of the lowest grade competent to try it”. It only specifies that
amongst the competent courts, the suit must be instituted at the court of the
lowest grade 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 19 confers jurisdiction to multiple courts based on the
following criteria:

1. The place where the cause of action has arisen;

2. The place where the defendant resides, or carries on business or works for
gain.
3. Again, if there are multiple defendants having different place of
residences, or workplaces, then with the leave of Court, suit may be
instituted at any of such places.

In such case, the choice is available to the plaintiff to file a suit as per his
choice. As a general rule a plaintiff as arbiter litis or dominus litis has a right to
choose his own forum where a suit can be filed in more than one court. This

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right of the plaintiff cannot be taken away normally. However, in some
circumstances this right is controlled by the power vested in superior courts to
transfer a case pending in one inferior court to another or to recall the case to
itself for hearing and disposal. Sections 22 to 25 enact the law as regards
transfer and withdrawal of suits, appeals and other proceedings from one court
to another. Sections 22 and 23 enable a defendant to apply for transfer any suit
while sections 24 and 25 empower certain courts to transfer any suit, appeal or
other proceedings either on application made by any party or by the court suo
motu. The provisions of Sections 22-25 are exhaustive.

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 OBJECT AND NATURE OF THE TRANSFER OF SUIT

The object of every procedural law is to facilitate justice. A fair and an impartial
trial is sine qua non and an essential requirement of dispensation of justice.
Justice can only be achieved if the court deals with both the parties present
before it equally, impartially and even - handedly, a court. Hence, though a
plaintiff has the right to choose his own forum with a view to administer justice
fairly, impartially, and even- handedly, a court may transfer a case from one
court to some other court.3

Section 22 allows the defendant to make an application for transfer of a suit,

whereas section 23 indicates the court to which such an application can be
made. Section 24 embodies general power of transfer of any suit, appeal or
other proceeding at any stage either on an application of any party or by a court
of its own motion. In Durgesh Sharma v Jayshree4 it was held that this power
does not authorise a High Court to transfer any suit, appeal or other proceedings
from a court subordinate to that High Court to a court not subordinate to that
High Court. It was further opined by the judges that Section 25 confers very
wide, extensive and plenary powers on the Supreme Court to transfer any suit,
appeal or other proceedings from one High Court to another High Court or from
one civil court in one State to other civil court in another state.

In Rajagopala Pandarathar & Ors. V. Tirupathia Pillai & Anr1, it was held that
Section 24 provides for power for transfer of a case from one court to another. It
provides for transfer of suit, appeal or other proceedings. Other proceedings
include the execution proceedings. Transfer of the proceedings by the High
Court before itself on the ground that a party is abusing the process of the Court
or otherwise resorting to the process that other party may not succeed, stands
fully fortified by the judgment of the Hon’ble Supreme Court in Abdul Rahman
1
AIR 1926 Mad. 421

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V. Prasony Bai & Anr.2 In Nahar Industrial Enterprises Ltd. v. Hong Kong and
Shanghai Banking Corporation7, the apex court held: “Only civil suits are
subject matter of inter State transfer from one civil court to another civil court.
Sub-section (5) of section 24 of CPC provides that a suit or proceeding may be
transferred from a Court which has no jurisdiction to try it. The power to
transfer one case from one court to another or from one tribunal to another is to
be exercised if exceptional situation arises and not otherwise. Rules of
procedures are intended to provide justice and not to defeat it.”

It was held in N.K. Nair & Anr. V. Kavanugalaanattu Radhika 3 that Section 25
empowers the Supreme Court to transfer the case from a competent Court in
one State to the Court of another State. The transfer should not be made when
the proceedings in a case has reached the final stage or are likely to be
concluded.

2
2003 AIR SCW 14
3
(2005) 13 SCC 439

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 TO WHAT COURT APPLICATION LIES AS PER THE PROVISIONS
OF SECTION 23 OF CIVIL PROCEDURE CODE, 1908

• 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 Gupta4, both 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 case,the
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.

Subordinate Court:

A subordinate judge is subordinate to the district court no matter what forum of

appeal may be in particular case for the transfer of which application is made.

4
2000 (3) ALD 285

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A full bench of Rangoon High Court has held that for transfer of a suit pending
in a High Court, an application should be made to that court that has power to
transfer u/s 151 of Civil Procedure Code.

Different High Courts:

If a suit between the same parties is filed in courts subordinate to different High
Courts, then either High Court may transfer the suit from the court subordinate
to it or transfer can be made to court subordinate to another High Court. In a
case where the plaintiff in abuse his power as dominus litis and in disregard of
the convenience of both parties filed his suit in a court subordinate to the High
Court at Allahabad, the High Court in its inherent jurisdiction transferred the
suit to the chief court at oudh. In State Bank of India v. M/s. Sakow Industries
Faridabad (Pvt) Ltd., New Delhi5, the learned single Judge of Punjab and
Haryana High Court held that the High Court could examine the powers of
transfer under Section23(3) to meet the ends of justice and to prevent abuse of
the process of the Court.

5
AIR 1976 P H 321.

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 TRANSFER OF APPLICATION AS PER THE PROVISION OF
SECTION 25 OF THE CIVIL PROCEDURE CODE

Section 25 of the Code of Civil Procedure is associate degree enabling provision

that empowers the Supreme Court of India to transfer any case, or different
proceedings from a court or [any different the other Civil Court in one state to a
different court or other Civil Court in the other state.

According to the Code, this power could also be exercised by the Supreme
Court if it’s happy that associate degree order underneath section 25 is
expedient for the ends of justice. Therefore, wide powers are presented on the
Supreme Court to order a transfer of a civil case if the Court feels that the ends
of justice shall be met within the explicit circumstances.

In the majority of cases, this provision is invoked in married matters and

frequently at the instance of the partner once she is clothed as a respondent in
the proceedings initiated by the husband and in cases wherever the parties have
separated for married variations and are living in several states. In these types of
cases, the partner moves for transfer of the proceedings on the bottom of her
inability to defend the proceedings for being not during a position to afford
travelling, being not during a position to not leave her child/children behind and
on the grounds her personal safety and inconvenience besides expenses. The
Court invariably takes a sympathetic read in favor of the partner but, that’s
continuously not the case as in some cases the Supreme Court has control that
the convenience of the petitioner cannot eclipse the necessity of justice.

The invocation of the jurisdiction for transfer of cases is but not restricted or
restricted to married disputes and is feasible for different cases conjointly.

Similarly, Section 406 of the Code of Criminal Procedure empowers the

Supreme Court of India to transfer criminal cases and appeal unfinished in one
court to a different court or from a Judicature subordinate to at least one court to

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a different judicature of equal or superior jurisdiction subordinate to a different
court.

In each sort of cases associate degree application with official document of the
petitioner in conjunction with copy of the case wanted to be transferred is
needed to be filed before the Supreme Court of India with a prayer for the
transfer of the case to a specific Court in another State and a prayer for keep of
the proceedings before the Court below within the case wanted to be
transferred.

It would unremarkably take the Supreme Court of India to make a decision

associate degree Transfer Petition inside an amount of roughly four to six
months’ time once hearing each side on deserves till which era the proceedings
before the Court below stay, will be stayed by an order of the Supreme Court.

Firstly, the Petition for Transfer of case from one state or city to another state or
city was common in the matrimonial matters. The wives have taken many
advantages by taking some important grounds for transferring the petition.

Typical grounds taken by wife in the transfer petitions are below:

• Having a child
• Travel is unsafe being a lady
• Expenses required for travel
• Threat to life at Husband’s place
• Husband is very influential in his place
• Inconvenience to travel long distance.

Some of the landmark cases of transfer of cases in matrimonial matters are:-

In Dr. Subramaniam Swamy v. Ramakrishna Hegde,6 the Court rules that:

6
AIR 1990 SC 113

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The paramount thought for transfer of a case under Section 25 of Code of Civil
Procedure must be the necessity of justice. It was held that the mere
convenience of the parties or anyone of them might not be enough for the
exercise of power, however, it ought to even be shown that trial within the
chosen forum will result in denial of justice. The Court any control that if the
ends of justice therefore demand and also the transfer of the case is imperative,
there ought to be no hesitation to transfer the case. The proper of the dominus
litis to decide on the forum and thought of complainant’s convenience etc.
cannot eclipse the necessity of justice. Justice should be done in any respect
costs; if necessary by the transfer of the case from” one court to a different.

This provision has been most frequently invoked in matrimonial matters, and
usually at the instance of the married woman, once the husband and married
women are living separately and the husband files a petition for divorce or
institutes alternative proceedings under the law concerning wedding and divorce
at the place wherever he is residing, that is sometimes the place wherever the
parties last resided along, the wife, who has typically came to her parental
home, moves for transfer either on the ground that she cannot afford to travel or
that she cannot leave her kid behind or that she faces threats once she goes to
defend the proceedings. The Court invariably takes a sympathetic read towards
the wife’s plea for transfer, however this is not always the case.

In Kalpana devi Prakash Thakar Vs Dev Prakash Thakar7, the Court disallowed
the wife’s plea for transfer of the matrimonial proceedings from Mumbai. to
Palanpur, Gujarat taking into account the subsequent considerations:

• The husband was a health care provider and his absence from Mumbai
would cause inconvenience to his patients;
• His previous and unwell mother who. lived with him required regular
medical check-ups and constant care;

7
AIR 1997 SC 844

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 • The witnesses were mainly from Mumbai;
• The wife had relatives in mumbai with whom she could stay .whenever
she went there for the case;
• The husband was ready to bear the expenses of travel and additionally the
traveling expenses of the escort. Palanpur was well connected to Mumbai
by train.

In Shiv Kumari Devendra Ojha Vs Ramesh Shitla Prasad Ojha8, the Court
disallowed a woman’s application for transfer of an application for grant of a
succession certificate, from Gujarat to U.P. Her main plea was that being a
woman she was unable to travel from U.P. to Gujarat. The Court disallowed the
petition primarily on the ground that the respondent was able to pay” the
traveling expenses. The Court further held, that if the petitioner had any issue in
participating a counsel as a result of monetary constraints, she may file an
application to recover the amounts paid for the same from the respondents, in
the trial court at Gujarat.

A couple of issues have arisen within the context of the power of the Court to
order transfer under Section 25 CPC often the Court has felt that the parties
would be advised to dissolve their marriage by mutual consent, and
sometimes.the parties themselves have to be compelled to come to such an
understanding. In such a situation, the court has usually permissible the parties
to file a petition for divorce by mutual consent.in the Supreme Court itself.

However, some benches have taken the view that this cannot be done and that
such a petition will only be filed in the court. It is respectfully submitted that the
Court is not even in delegation the parties to the court when both the parties are
willing to dissolve. the marriage by mutual consent. It’s exactly in such things
that the ability of the Court beneath Article 142 of the Constitution will return to
the help of parties, as a result of “complete justice” is then done. the need that

8
AIR 1996 SC 245

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the petition for divorce by mutual consent ought to be filed within the Court of
District choose or the court, is at the best a procedural matter and doesn’t alter
the substantive rights of the parties.

Another problematic scenario which arises typically is when the transfer of a

case is sought-after from the State of Jammu and Kashmir. Code of Civil
Procedure doesn’t apply to the State and thus the provisions of Section 25 of the
Code of Civil Procedure additionally wouldn’t apply.

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 CONCLUSION

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

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 BIBLIOGRAPHY

BOOKS

1. Batuk Lal: Law of Evidence in India, Central Law Agency, Central Law
Agency, Allahabad.
2. C. D. Feild: Commentary on Law of Evidence (In India, Pakistan,
Bangladesh, Burma, Ceylon, Malaysia and Singapore), Delhi Law House,
New Delhi.
3. Dr. Avtar Singh: Principles of the Law of Evidence, Central Law Agency,
Allahabad.
4. Dr. Mukund Sarda & Prof. D.S. Chopra: Cases and Materials on
Evidence Law, Thomson Sweet & Maxwell, London.
5. Dr. V. Krishnamachari & Surender K. Gogia: Law of Evidence, S. Gogia
& Co., Hyderabad.

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1. JSTOR Journals

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