In every civil suit, the jurisdiction of the civil court is the core basis of pursuing it. It is the main benchmark by which the civil court can give the verdict. Jurisdiction is of foremost importance because if the court does not possess the legal authority to pronounce the verdict on a case, it does not have jurisdiction over the case. A suit is often transferred to another court due to lack or excess of jurisdiction in many instances. In each and every civil dispute, the affected party has the right to select the court wherein one desires to institute the suit. Put differently, when a suit is filed by the plaintiff, the defendant can either accept the court of suing and submit the written statement or can file the application for transfer of the suit to another court in case if he is not content with the court in which the case was originally filed.
If the defendant has not accepted the place of suing, the court cannot initiate the proceedings, nevertheless the court can reject the application for the transfer of suit filed by the defendant and the defendant has to accept it. Other than the parties to the suit, the court at its own discretion also has the right to transfer the suit. They are given power under the Code of Civil Procedure, 1908 to handle such matters and transfer the suit to another court of proper jurisdiction if the ends of justice insist so.
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Transfer of suit
Section 22 of the Code of Civil Procedure, is the substantive provision which bestows upon the Civil Court with the power to transfer a case. It states the two conditions that must be fulfilled before a suit transfer is initiated. They are:
- The application for transfer should be submitted before the court before resolution of the issues between the parties.
- The opposite party should be sent a notice, once the application has been submitted by the other party.
The Court after considering the objections of both the parties shall decide which court has the competent jurisdiction to try the case at hand. In the case of Mst. Basanti Devi v. Mst. Sahodra [1], it was decided that in an application for transfer of suit under Section 22, not only the consent of both the parties should be taken into consideration, but the entire circumstances should also denote that the case should be proceeded in a court different from the court in which the case was originally filed by the plaintiff.
Next, section 23 of the code mentions about the court to which an application for transfer of suit can be submitted:
- An application for transfer of a suit shall be filed before the appellate court, if several courts are having jurisdiction inferior to the same appellate court.
- The application shall be filed to the high court, if such courts are having jurisdiction inferior to different appellate courts but to a same high court.
- The application shall be filed with the High court within the local limits of whose jurisdiction the court in which the suit was originally filed is located, if such courts are inferior to different High Courts.
Sup-moto Transfer
Section 24 of the Code of Civil Procedure states that jurisdiction is used in the event of transfer of a suit or in the case of appeal or revision. The power of transfer can even be exercised by the District Judge or High Court suo moto even if no such application for the same has been filed before the court. The section does not mention any base by which the case can be transferred from one court to another but there are definite principles and grounds which have to be observed. The law and the facts of the case should also be borne into account during the whole process of transfer.
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Prevalent powers of transfer of the case under section 24 of CPC
When the court receives application for transfer of a case from the parties, after serving notice of the same to the parties and after hearing their objections, or by its own motion without serving such notice to the parties, the High Court or the district Court may at any level of the suit-
- transfer any suit or proceeding undecided before it for trial or disposal to any Court inferior to it and fit to try or discard the same, or
- withdraw any suit or proceeding undecided in any Court inferior to it, and:
- try or discard the same
- transfer the case to any Court inferior to it and fit to try or discard the same;
- re-transmit the case for trial or disposal to the Court from which it was removed.
When any suit or proceeding is transferred or withdrawn, the Court can either retry it or proceed again from the stage at which it was transferred or withdrawn. When a transfer is initiated with regard to an application, the court must strictly act judicially, led by a sense of equity and fairness, and should consider objectivity and not subjectivity. The application for transfer of suit can be submitted notwithstanding the phase of the court proceeding and the court has discretionary power with respect to the transfer of the case. But there must be a proper and good ground for transfer of such case and if there is mala fide intention behind the application for transfer, the court can discard the application. In the case of Alia Subba Reddi v. Lanki Reddi Narayanaswatni Reddi & Ors. [2], the court held that when an application is made under section 24 of the Code of Civil Procedure for transfer of a case to the High Court and a notice is sent to the parties, it falls within the nature of an original proceeding in the meaning of Section 141 of the Code.
Making record of reasons
While submitting an application to a higher-level authority for transfer of cases, the court should write down the reasons or grounds for transfer under section 24 CPC. It should be recorded distinctly from the main case details and the transfer application record should be kept separately in the record room. The original order should be kept in the proceeding record and the copy should be submitted to the concerned court.
Effect of transfer
An order of transfer becomes effectual straight away after it is made by the court. Its efficacy will not be contingent upon its transference to the inferior court.
Power of the Supreme Court to transfer suits – Section 25 of CPC
Consequent to application obtained from any of the parties, after sending notice to both the parties and after hearing them, the Supreme Court may, at any level of the case proceeding, direct or order that any suit or proceeding be transferred from a High Court or other Civil Court situated in one State to a High Court or other Civil Court situated in any other State, if the court is pleased that an order within this section is expeditious for procuring the ends of justice, [3]
Cases where transfer is permitted
Transfer of cases from one court to another is permissible when:-
- There is a reasonable threat in the mind of a party that he or she will not be able to obtain justice if the case remains pending in the court in which the case proceeding is presently being conducted.
- There is a grave insufficient balance of convenience.
- Two different people or parties have filed a case against each other in different courts on the same cause of action.
- Similar questions of facts and law arise in suits undecided in different courts.
- The judge acts prejudicially or arbitrarily.
Cases where transfer is not permitted
Transfer of cases from one court to another is not permissible when:-
- There is only negligible insufficiency in balance of convenience to the applicant.
- Judges give their point of view in advance regarding the judgment of the case.
- The facts are trivial and incorrectly arranged.
- Claim is that the opposite party is a powerful man in the area.
- A claim that the court is located at a distance far away from the accommodation of the applicant.
Conclusion
The paramount objective of our judicial system is dissemination of justice and if the ends of justice demand that a case has to be transferred, the court shall not hesitate. The court should have a moral obligation to keep the trust and confidence alive. Some of the grounds for exercising the power to transfer a case can be summed up as follows:
- A substantial question of law is involved,
- To avert mishandling of court proceedings,
- To steer clear of hold up and avoidable litigation expenses,
- When the judge acts biased or is interested in one part only,
- To avoid multiplicity of proceedings and conflicting decisions.
While exercising the power of transfer, courts must keep in mind to have required caution and attention and must act with the interest of justice.
References
[1] AIR 1935 All 979.
[2] AIR 1949 Mad 283.
[3] CPC Section 25, available at : https://www.latestlaws.com/bare-acts/central-acts-rules/cpc-section-25-power-of-supreme-court-to-transfer-suits-etc-/ (last visited on October 28, 2020).
BY BINOOSHA BENOY | GOVT. LAW COLLEGE ERNAKULAM