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Transfer of Suits Under the Civil Procedure Code
The court has to be impartial towards the parties to the dispute. So when a suit has been filed by the plaintiff at the place of his choice as per the provisions of the Code of Civil Procedure of 1908, the defendant has to appear before the court and file a written statement raising his objection to the suit filed by the plaintiff. If the defendant raises objections with regard to the jurisdiction of the court based on any of the provisions contained in the Code of Civil Procedure, the court has to first decide the issue of jurisdiction. If the court decides that it has no jurisdiction, then it has to return the suit as per the provisions of the Code of Civil Procedure of 1908. However, if any of the parties, at any stage of the proceedings, finds it difficult to pursue the case at the place of forum where it is pending, it may file a transfer petition before the appropriate court as per the law to get the proceedings transferred to the other place or court of their choice.
Legal Provisions for Transfer of Suit
Sections 22 of the Code of Civil Procedure deal with the rights of the defendant to apply for the transfer of a suit in cases where the suit may be instituted in more than one court. Section 23 provides for the appropriate court to which an application for the transfer of the suit should be made. Section 24 deals with the general power of the high court and district court to transfer and withdraw the case at any stage of proceedings. Section 25 deals with the power of the Supreme Court to transfer suits.
Conditions for the Transfer of a Civil Suit
A civil suit may be transferred if the suit is of such a nature that it may be instituted in more than one court and has actually been instituted in one such court. However, the defendant is not pleased with the place of suing i.e., the place of the sitting of the court, and has raised objections to that effect, and the court has decided those objections in favour of the defendant. In that situation, the defendant has the right to apply before the appropriate court to get the suit transferred to one of the other courts in which it may have been filed. In Section 22 of the Code of Civil Procedure, the defendant gets the right to apply for the transfer of the suit at the earliest stage of the proceedings and in any case before settlement of the issues. If the defendant wants to file a transfer application, he has to give notice to the plaintiff of his intentions before filing the application. The court, to which such an application has been filed, shall consider the objections of the other party (if any) and decide the court before which the suit shall proceed further.
In Basanti Devi v. Sahodra, AIR 1935 All 979, the supreme court laid down that in an application for transfer under Section 22 of the Code of Civil Procedure, the convenience of the parties alone should not be considered, but the totality of the circumstances should indicate that a suit should proceed in a court different from the one chosen by the plaintiff.
In Maneka Sanjay Gandhi and Anr. v. Rani Jethmalani (1979) 4 SCC 167, the Supreme Court held that the mere convenience of the parties is insufficient to transfer a case from one court to another.
To Which Court the Transfer Application can be Made?
Section 23 of the Code of Civil Procedure specifies the court to which an application for transfer can be made. As per the provision of subsection (1) of Section 23, an application under Section 22 for transfer of the suit is to be made to the appellate court having jurisdiction over both the court before which the suit is pending and the court to which the transfer is sought.
There are three cases mentioned in Section 23 that help in deciding the court to which a transfer application can be made.
Case 1 − If all the several courts having jurisdiction over the subject of the suit, are to be subordinate to the same appellate court, then the application is to be filed before the appellant court.
Case 2 − If all such courts are subordinate to different appellate courts but are subordinate to the same High Court, the application shall be made to the High Court.
Case 3 − If such courts are subordinate to different High Courts, then the application shall be made to the High Court within the local limits of whose jurisdiction the court in which the suit is first brought is situated.
General power of the high court and district court to transfer the suit
Section 24 of the Code of Civil Procedure of 1908 empowers the High Court and District Court to transfer any pending suit, appeal, or any proceeding, at any stage, from any subordinate court to the other court competent to try the suit, either suo moto on its own motion or upon the application of the aggrieved party. Under this provision, the suit can be transferred from one court to another; however, the new court should be equally competent to try the suit. Further, if a suit is erroneously filed before a court that has no jurisdiction to try and adjudicate upon it, then under this provision of the Code of Civil Procedure 1908, that suit may be transferred to the court that has jurisdiction and is competent to try and adjudicate.
The provision under this section may be used by the aggrieved party who has reasonable apprehension of being treated prejudicially by the court under the influence of the other party. However In any case, this apprehension of partiality must be reasonable and mere assumptions or wage apprehension can't and ought not to be the ground of transferring a case from one Court to other.
The Power of the Supreme Court to Transfer Suits
Section 25 of the Code of Civil Procedure empowers the Supreme Court to transfer any case from the High Court or another civil court in one state to the High Court or another civil court in any other state.
The Supreme Court is to exercise the power provided under this section only upon the application made to it by the aggrieved party and upon having been satisfied that, for the end of justice, an order of transfer under this section is expedient. The convenience of one party or the inconvenience of the other party shall not be sufficient for the Supreme Court to exercise its power; rather, the necessity of transfer must be demonstrated for the sake of justice.
In Dr. Subramaniam Swamy v. Ramakrishna Hegde, AIR 1990 SC 113, the supreme court held that in the transfer of suits, appeals, and other proceedings, the paramount consideration is that justice according to the law is done, and if the ends of justice so demand, then there ought to be no delay in the transfer of the case.
Legal Provisions for Transferring the Suit or Proceedings
Subsection 5 of Section 25, provides that the law that is applicable to the suit or proceeding originally instituted, shall continue to apply to the suit or proceeding so transferred to the other court situated in the other state. As a result, even after the suit is transferred to another court in another state, the law that was originally applicable to the suit or proceedings will continue to apply.
Jurisdiction of the Supreme Court under Article 139-A of the Indian Constitution
As per the Article 139-A(1) of the Constitution the Supreme Court has the power to call the cases those are pending before the High Courts to be heard by itself.
Further, as per the Article 139-A (2) of the Constitution, the Supreme Court can transfer any case, or other proceedings pending before any High Court to another High Court if the Supreme Court is satisfied, upon the grounds mentioned in the application, that it is expedient for the ends of justice.
Free and fair justice is the fundamental right of every citizen under the Indian constitution. Transferring the case to a court where free and fair justice can be guaranteed is unquestionably a right. However, the courts should exercise the power to transfer very cautiously to meet the ends of justice.
Frequently Asked Questions
Q1. The Supreme Court of India has the authority to transfer cases from one state to another under what provision of the Code of Civil Procedure (1908)?
Ans: The Supreme Court of India has been empowered by the provisions of Section 25 of the Code of Civil Procedure, to transfer any case from one high court to another high court or to any other civil court subordinate to the high court in any other state.
Q2. Under which article of the Constitution, the Supreme Court of India have the power to stay a proceeding pending before the high court involving a question of national importance?
Ans: Article 139-A(1) of the Constitution empowers the Supreme Court to stay the proceedings pending before the high court and call the cases to be heard by itself.
Q3. Under what provision of the Code of Civil Procedure, the high courts have the power to transfer cases from one civil court to another civil court.
Ans: The High Court has been empowered by the provisions of Section 24 of the Code of Civil Procedure, to transfer any civil suit from one district court or another district court within the jurisdiction of the High Court.
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