CODE OF CIVIL PROCEDURE

TRANSFER OF CASES

SUBMITTED TO-

MR. UDIT NARAYAN MISHRA

SUBMITTED BY-

AADRIKA GOEL (21BBA002)

BATCH OF 2021-2026.

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 INTRODUCTION

The court must maintain impartiality when dealing with parties involved in a dispute. Therefore,
when a plaintiff initiates a lawsuit in their preferred location, as outlined in the “Code of Civil
Procedure 1908”1, 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 2, 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.

PROVISIONS EXPLAINED

Section 223 of the Code of Civil Procedure contains the substantive provision that empowers the
Civil Court to transfer a lawsuit. This section outlines the two essential conditions that must be
met before a suit transfer can be initiated:
1
“CODE OF CIVIL PROCEDURE 1908”
2
ibid
3
Code Of Civil Procedure 1908 S 22

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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 235 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.

4
AIR 1935 All 979
5
Code Of Civil Procedure 1908 S 23

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Section 246 of the Code of Civil Procedure 7 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

6
Code Of Civil Procedure 1908 S 24

7
ibid

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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 1418 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 259 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.

8
Code Of Civil Procedure 1908 S141
9
Code Of Civil Procedure 1908 S 25

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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.

COMPENSATION

If the application for transfer is dismissed, or if the court determines that the transfer was not
sought for valid or justifiable reasons, it has the authority to order the party who applied for the
transfer to compensate the opposite party. However, the compensation should not exceed Rs
2000 This provision is in place to deter frivolous or unjustified transfer applications and to
compensate the party who may have been inconvenienced by the transfer request.

TRANSFER WHEN ALLOWED AND WHEN NOT ALLOWED

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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.10

2. Balance of Convenience: In cases like Jotendro Nath v. Raj Kristo11, 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.12 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.13”

5. Judge's Interest in One Party: When there is prejudice or reasonable justification, as in

Gujarat Electricity Board & Anr v. Atmaram Sungomal Poshani 14, 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.

10
1963 MPLJ (Notes) 117
11
(1890)116 ILR Cal 771
12
AIR (1938) ILR Mad 745
13
AIR 1953 Ori 46
14
AIR 1989 SC 1433 (1436)
15
AIR 1979 SC 1514
16
AIR 1989 SC 1433 (1436)

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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.17

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.

RELEVANT CASES

 In the case of M.V. Ganesh Prasad v. M.L. Vasudevamurthy19, the court emphasized that
the allegation of bias must be reasonable, proper, and made in good faith by the petitioner
seeking the transfer of a suit. In other words, the petitioner must have a genuine and valid
reason to suspect bias on the part of the judge. If the court finds that the petitioner's claim
of bias is unfounded, speculative, or made with malicious intent, the application for the
transfer of case may be rejected. The court should carefully consider all circumstances
surrounding the case] to maintain the integrity and trustworthiness of the judicial process
when addressing transfer requests to ensure that they are made for legitimate and
justifiable reasons.
 In the case of Durgesh Sharma v. Jayshree20, the Supreme Court clarified the scope of
the power defined in Section 2421 of the Code. The Court's ruling established that the
power granted under Section 24 does not allow a High Court to transfer a suit, appeal, or
any other legal proceeding from a court subordinate to that High Court to a court that is
not subordinate to it, under the provisions of either Section 23(4) or Section 24 of the
CPC.

17
AIR 1962 Mani 42.
18
(1977) 4 SCC 363
19
AIR 2003 Kant 39
20
(2008) 9 SCC 648
21
Code of Civil Procedure 1908 S 24

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  “In the case of Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai
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Banking Corporation ”, the Apex Court clarified that Section 24(5) 23 of the CPC
pertains exclusively to the inter-state transfer of civil suits between civil courts. Such
transfers should only occur in exceptional circumstances when jurisdictional issues
demand it, with the overarching purpose of ensuring justice rather than obstructing it
through procedural rules.
 In the case of Indian Overseas Bank v. Chemical Construction24, 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” Sastry25,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.”26

CONCLUSION

22
(2009) 8 SCC 646
23
Code of Civil Procedure 1908 S24
24
AIR 1979 SC 1514
25
AIR 1981 SC 1143
26
ibid

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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.

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