An Insight on Transfer of Suits under Code of Civil Procedure Code, 1908

Introduction

The Code of Civil Procedure, 1908, is one of the institutions that the Constitution established to handle any conflicts that may emerge in society. When someone approaches the legal system to resolve a disagreement that is not of a criminal nature, they must adhere to a set of rules known as civil process. Every disagreement must be resolved through a forum. In every civil dispute, the party who has been injured has the right to select the court that will hear the case, provided that court has the necessary jurisdiction.

Everyone has faith in the judiciary and accords it the respect it deserves, knowing that anyone who appears before it will receive justice. The court should operate impartially and without bias. Justice ought to be administered in a way that preserves the public’s confidence in the judiciary. According to the Code of Criminal Procedure and the Code of Civil Procedure, the court must uphold high moral standards among its members in order for there to be good faith on the court. Only when both parties are present and the court has the authority to transfer cases from one court to another can justice be attained. However, the plaintiff’s right cannot be restricted, restricted, or interfered with. The jurisdiction of a civil court is the fundamental element of any civil lawsuit in civil procedure. It is the main standard by which the civil court can render a decision.

When one party, the plaintiff, files a lawsuit in the court of his or her choosing, the other party, the defendant, has two options: either accept the court’s decision and submit a written statement, or submit an application to have the lawsuit transferred if the defendant is not happy with the court’s decision. The court cannot begin the procedures without the defendant’s approval; nevertheless, the court may reject the application for the same, and the defendant must accept it. The courts have the option to transfer the case without the consent of the parties. While Sections 24 and 25 give specific courts the authority to transfer the matter, Sections 22 and 23 deal with the defendant’s rights to ask for the transfer of a lawsuit.

Nature, scope and objective

The following characteristics define the court’s ability to transfer a case:

When more than one court is qualified to hear a case and the plaintiff filed in one of those courts, the power is limited.
When a plaintiff is litigating over a contract that has a “Forum Shopping Clause,” the power is not available.
Even though there are several defendants, only one defendant may file the application pursuant to Section 22, and that defendant must file the application.
The right to object to the application being transferred is available to all parties to the lawsuit (except from the applicant). The most suitable court to resolve disputes will be decided by the superior court.

According to Section 24(1), any matter may be transferred or withdrawn at any time during the litigation process, including while an appeal is pending. However, when cases are transferred to another court, that court must have the necessary expertise to handle the matter. The High Court has the authority to transfer the matter from one court to another and to remove the case from any court. The matter will fall under the purview of the same high court, whether that appellate court is the same or not, or it may fall under the purview of another high court.

Delivering justice or reaching conclusions on issues that touch on public attitudes are the main motivations driving the transfer of cases. There are several appeal provisions, but doing so will put strain on the judicial system and cause justice to be delayed. However, the law has established a mechanism, such as the court’s hierarchy, to ensure such issues do not arise. The transfer of cases is a clause that supports preserving public confidence in the legal system.

Section 22: Power to transfer suits which may be instituted in more than one court

According to Section 22 of the Code of Civil Procedure, the plaintiff has the right to file a lawsuit in any court that is appropriate. Following this, the defendant has the right to file an application to transfer the lawsuit as soon as possible after informing the plaintiff of the application’s purpose. The plaintiff’s objection, if any, to the suit being transferred from the court where it was first filed may also be taken into consideration by the court. After the objection is overruled, the case will then be sent exclusively to the court that has jurisdiction to hear it.

Sections 22 and 23 are complementary to one another since section 22 grants the defendant the right to request a transfer according to the circumstances set forth therein and section 23 specifies the location of the application for a transfer of suits. The application must be made before the dispute has been resolved, and it must include all necessary requirements because failing to do so may result in its dismissal.

When the issues are framed at, decided upon, or prior to the issue’s resolution, Section 22 of the Civil Procedure Code is applicable. There will be no recourse available to the applicant under CPC regulations if the issues have already been resolved and the petitioner is unable to appear before the Court for case transfer. A plaintiff has the ability to choose the forum of his choice in his capacity as arbitrator. This right is governed by the transfer power, yet it is a right that should not be easily infringed upon. While the husband filed the lawsuit in a court in another location, the wife’s application for custody was still ongoing. The wife filed the transfer application in the same court because the subject of both cases was the same. The husband didn’t imply that the prosecution of the proceeding at the location where the wife’s application was pending was hampered by financial issues. The simple fact that spouse would have to make the trip could not be used to infer prejudice against him.

In light of these circumstances, the husband’s lawsuit will be transferred. It was decided in the case of Ms. Basanti Devi v. Ms. Sahodra, which involved the interpretation of Section 22 of the CPC, that in an application for transfer made pursuant to Section 22 of the CPC, the convenience of the parties alone should not be taken into account, but rather that the totality of the circumstances should indicate that a lawsuit should proceed in a court other than the court chosen by the plaintiff. Additionally, a case cannot be transferred from one Court to another just because it is more convenient for the side.

Conditions

The suit or other proceeding has to be ongoing in a court with the authority to hear it.
The court issuing the transfer orders must be superior to the transfer court.
The transferee court should have the necessary jurisdiction to hear the case and render a decision, which includes both territorial and financial jurisdiction.

Notice

The period must be mentioned before giving notice of the application, as required by Section 22 of the CPC. All parties pledging in the case, whether plaintiff or defendant, should receive notice, not just the opposing parties. Section 22’s requirements include that notice of the application must be sent to every party to the lawsuit as well as the court where it will be heard. However, it has been decided that a notice included with the application itself could fix the flaw.

To which court application lies

It is addressed in Section 23.

An application under Section 22 must be made to the appellate court in cases where multiple courts with jurisdiction are subordinate to the same appellate court.
The high court must be contacted in cases where such courts are below other appellate courts but the same high court.
Where such Courts are subject to other courts that have local authority over the court where the suit is filed.
Grounds for transfer:
Justice must be delivered in a way that sends a positive message to society as a whole in order for society to preserve its faith in the courts. This is almost the judiciary’s obligation in order to meet the conclusion of justice. The court should be under additional moral pressure to maintain the relationship of trust and confidence.
Having the exclusive decision on a certain controversy is desirable.
When a significant legal issue is involved.
To avoid abuse of legal processes.
To prevent inconvenience and wasteful spending.
Where the judge is partial or solely concerned with one aspect.
When a comparable factual and legal issue pops up in two cases.
When two people filed cases in different courts for the same cause.
To prevent a variety of proceedings or inconsistent rulings.

In Mamta Gupta v. Mukund Kumar Gupta, the petitioner wife requested that both of the suits filed by the respondent husband be transferred to the Family Court in Indore, which is subordinate to the High Court of Madhya Pradesh. The respondent husband had filed both of the suits in Hyderabad, which is a subordinate court to the High Court of Andhra Pradesh. The Western Uttar Pradesh Electric & Power Supply Company Limited sued Hind Lamps Ltd. in the civil court in Mainpuri in the case Western Uttar Pradesh Electronics v. Supreme Court, seeking payment for the electricity used in February and March 1962 as well as the minimum guarantee charges from April 1 to September 30, 1962.

Subordinate Court

No matter what the forum of appeal may be in a given case for the transfer of which an application is made, a subordinate judge is subordinate to the district court. A full bench of the Rangoon High Court ruled that in order to transfer a lawsuit already in progress from one High Court to another, a request must be submitted to the court that has the authority to do so under Section 151 of the Civil Procedure Code.

Different High Courts

If the same parties file a lawsuit in courts under the jurisdiction of two or more high courts, either high court may transfer the lawsuit from the court under its jurisdiction or make the transfer to a court under the jurisdiction of another high court. In a situation where the plaintiff filed his lawsuit in a court below the High Court in Allahabad, abusing his position as dominus litis and disregarding the convenience of both parties, the High Court, acting within its inherent authority, referred the lawsuit to the chief court in Oudh. The learned single judge of the Punjab and Haryana High Court ruled in State Bank of India v. M/s. Sakow Industries Faridabad (Pvt) Ltd., New Delhi, that the High Court could review the powers of transfer under Section 23(3) to uphold the interests of justice and prevent abuse of the court’s process.

Hearing of objections

According to CPC Section 21, no appellate or revisional court shall grant a jurisdictional objection unless the objection was raised in the court of first instance at the earliest opportunity, in all cases where issues are resolved at or prior to such settlement, and unless there has been a consequent failure of justice.

The power to transfer lawsuits that may be filed in more than one court is provided by Section 22 of the Civil Procedure Code. When a lawsuit is filed in one of these courts, any defendant may, after giving notice to the other parties, at the very least, have the opportunity and, in all cases where issues are settled at or before such settlement, apply to have the lawsuit transferred to another court, and the court to which the application is made, after consideration, grant the defendant’s request.

Withdrawal and Transfer of suits

Section 24 gives the High Court and District Court the authority to transfer or withdraw any pending litigation, appeal, or other procedure from any subordinate court on the request of the party who was wronged, without mentioning any specific grounds in the provisions.

According to Section 24(1), any party may request the transfer or withdrawal of a lawsuit in the High court or District court after giving notice to the parties. This lawsuit could be in any stage, such as pending, on appeal, or in any other action. A lawsuit may be transferred from one court to another, but the new court must have the same level of expertise as the old one. The High Court may exercise its authority under this section while nevertheless upholding the parties’ rights to justice and convenience. Simply making assumptions or potential fears cannot and should not be the basis for moving a matter from one Court to another. The ability to transfer a matter from one Court to another must be used with care and caution to ensure that the Court from which the case is transferred doesn’t suffer unnecessarily, dishonorably, or unjustifiably. When two or more connected lawsuits with comparable parties and subject matters are being attempted solely, a transfer may be sought so they can be combined and tried or decided in a single court. Simply making assumptions or potential fears cannot and should not be the basis for moving a matter from one Court to another. The ability to transfer a matter from one Court to another must be used with care and caution to ensure that the Court from which the case is transferred doesn’t suffer unnecessarily, dishonorably, or unjustifiably. When two or more connected lawsuits with comparable parties and subject matters are being attempted solely, a transfer may be sought so they can be combined and tried or decided in a single court.

The ability to transfer lawsuits from courts in one state to another, however, is not granted by the High Court’s authority under Section 24. This restricts its ability to transfer lawsuits that fall under its purview. The Division Bench must be reluctant to intervene in a case where an appeal has been lodged against an order made under Section 24 by a learned single judge of the High Court, unless the order is clearly unlawful, incorrect, or carries a serious and substantial injustice.

In Alia Subbareddi v. Lanki Reddi Narayanaswatni Reddi and Ors, the court decided that when a request to transfer a lawsuit to the high court is made under Section 24 of the CPC and notice is granted, it takes on the character of an original proceeding as defined by Section 141 of the CPC and the Code’s suit-related procedure is then applicable. In the case of Srirangam Municipality represented by its Executive Authority the Commissioner v. R.V. Palaniswami Pillai, a Division Bench of the Madras High Court composed of Rajamannar, C.J., and Viswanatha Sastri, J., confirmed the aforementioned opinion that proceedings under Section 24 CPC are original proceedings. A Division Bench of this Court ruled in Ouseph v. Pylee that no appeal will be allowed against a single judge’s appointment of a receiver. However, that decision was made during an appeals proceeding.

Convenience of parties

Particularly when parties are needed to approach certain different forums, the convenience of parties is to be recognized as an appropriate cause for acting under Section 24. The matter needs to be transferred to the same court when both lawsuits raise common defences and problems. The Madras and Bombay High Courts were now hearing three lawsuits pertaining to the assertion of distribution rights for a single movie. The Bombay litigation’s further proceedings were ordered to be halted by the Supreme Court, and the Madras suit was ordered to be speedily resolved under the condition that the Bombay suit would not be transferred to Madras.

Suo Moto transfer

According to Section 24 of the Civil Procedure Code, the High Court has jurisdiction over matters involving the transfer of a case, an appeal, or a revision, and the District Court is not bound by any applications submitted by the parties. In the case of suo moto, judges of the High Court and District Courts have discretion. In accordance with Section 24 of the CPC, the High Court may transfer a lawsuit from one court to another upon receiving a request for such action from one of the parties. Despite the fact that Section 24 is silent on the subject, there are some guidelines and criteria that must be met in order to transfer cases from one court to another.

No justification for transferring a case from one court to another may be ordered under Section 24. However, decisions made in situations where a case might be given to a party for their use have advanced some principles. In any case, there is absolutely no restriction on the High Court’s ability to transfer or remove a case Suo moto. After examining the relevant facts and legal precedent, it has been determined that the civil courts that have been designated as the proper courts are subject to the provisions of Section 24 of the CPC, which gives superior courts the authority to transfer and withdraw cases from subordinate courts upon satisfaction of the necessary conditions.

The Madurai Bench of the Madras High Court held in Appukuttan v. Z. Thomas Zakaria that, before the trial even begins, the session court has the full authority to withdraw the case and transfer it to any other court, either through an application or suo motu. Once the trial has started, the session judge has no right to withdraw or transfer the case to any other court of another Additional Judge or Session Judge. As stated by the Allahabad High Court in the case of Dr. Rajnath v. L. Vidya Ram & Ors., the application under Section 24 of the Civil Procedure Code is not maintainable because the issues have already been framed and it has been made after five months of the issues being framed without a prior notice as contemplated under Section 22, which is mandatory in nature.

Power and duty of the court

At any step, whether a trial, procedure, or hearing, the High Court or District Court, after serving notice to all parties and receiving any party’s application.
Any civil case that is still pending, decided, or in the trial phase should be transferred to a lower court that can handle it.
The District Court or the High Court also has the authority to transfer a case to another court that is inferior to it but competent to handle it, whether it is pending for a proceeding or determined for trial purposes.
The court might begin the case or procedure where it has been transferred either at the moment of transfer or from the beginning.
Courts of additional and assistant judges are subordinate to the district court for the purposes of this provision.

The court’s responsibility is to act impartially, in accordance with a sense of justice, and by taking objective rather than subjectivity into consideration when transferring a case based on an application. Additionally, it should keep in mind that the presiding officer cannot deliver justice.

An Application for transfer of Suit under Section 25

The Supreme Court has the authority to transfer any case, appeal, or other process from a High Court or other civil court in one State to a High Court or other civil court in any other State under Section 25 of the Code of Civil Procedure. If the Supreme Court believes that the order issued pursuant to this Section is appropriate for advancing justice, it may exercise this power. Therefore, the Supreme Court is granted broad authority to order a transfer if it determines that doing so is necessary to ensure the end of injustice.

Justice must come first when deciding whether to transfer a matter under Section 25 of the CPC. It should be tried to show that a trial inside the chosen forum can result in the denial of justice rather than relying on the minor comfort of the parties or any one of them to exercise the power. The Court ruled that there shouldn’t be any delay in transferring the case if the interests of justice thus demanded it and it is fundamental.

The right of the dominus litis to choose the venue and the consideration of the plaintiff’s convenience, among other things, cannot override the need for fairness. No matter what, justice must be served; if necessary, this may require moving the case to a different court. This clause has frequently been used in marital disputes, almost always at the spouse’s request. The wife, who has frequently returned to her parental home, moves for transfer on the grounds that she can’t bear to travel, she can’t leave her child, or she is afraid of what might happen if she leaves. At the point when the couple are living independently and the husband files a petition for separation or brings other legal procedures establishing the marriage and separation at the place where he is residing, which is typically the location where the parties last lived together, The wife’s plea for a transfer is always considered carefully by the Court, but this is a situation that can be relied upon. The wife’s request for the relocation of the matrimonial procedures from Mumbai to Palanpur is denied by the court.

In the matter of Shiv Kumari Devendra Ojha v. Ramajor Shitla Prasad Ojha, the court denied the request to relocate a succession certificate application from Gujarat to Uttar Pradesh on the grounds that the respondent was willing to cover the associated travel costs. The Court further remarked that the petitioner may file an application to recover the sum paid for the same from the respondent if she is having trouble managing any counsel owing to financial issues.

Jurisdiction of the Supreme Court to withdraw and transfer cases under Article 139-A of the Indian Constitution

When cases involving the same or nearly identical legal issues are pending before the Supreme Court, one or more High Courts, or two additional High Courts, and the Supreme Court determines, either on its own initiative or in response to an application made by the Attorney General of India or by a party to any such case, that such issues are significant issues of general importance, it is authorized by Article 139-A (1) of the Constitution to “withdraw” the pending cases. When a central enactment’s constitutionality is questioned, this clause is frequently cited. According to Article 139-A (2), the Supreme Court may transfer any case, appeal, or other procedure that is pending before any High Court to any other High Court if it appears to be practical to do so in order to uphold the interests of justice.

In Union Carbide Corporation v. Union of India, the Supreme Court’s authority to dismiss the main civil lawsuit and related criminal proceedings was challenged on the grounds that Article 139(A) of the Constitution had not been complied with. The Supreme Court ruled that Article-139 did not exhaust its power of withdrawal and transfer, and that its authority under Articles 136 and 142(1) were additionally accessible for the reason in rejecting the argument that the case couldn’t have been withdrawn in this manner.

Calling for remarks

The officer should be called to explain the basis for the allegation if the party asserts that the court’s presiding officer is biased or if the party makes any other allegations regarding the presiding officer. However, the presiding officer won’t be providing justifications for the decisions made in instances.

Application for transfer after hearing

It is true that a transfer application can only be brought under certain circumstances, regardless of the stage of the action, and the court has discretion over transfers. However, there must be a good reason for the transfer of such a case, and the court may deny the application if there is a bad one.

Recording of reasons

The court must document a rationale in accordance with section 24 CPC when submitting a request for the transfer or withdrawal of cases to a superior authority. According to the rule, the court must always keep a brief case summary that includes the application’s justification.

Transfer requests should be documented separately from the primary case, and the record of such requests should be preserved in a separate location in the record room. The original order must be preserved in the case file, and a copy must be provided to the relevant court.

Effect of transfer

As soon as a transfer order is made, it takes effect. Its delivery to the inferior court will not affect its efficacy.

Compensation

The court may ask for compensation from the opposing party up to a maximum of Rs 2000 in the event that the transfer application is denied or the court determines that there is not a good basis for the transfer.

Appeal

According to Section 96, appeals from decisions made by courts exercising original jurisdiction are admissible in court, and the court has the power to hear appeals from those decisions. When the parties consented to the court’s decision, there is no right of appeal. A suit with a value of less than Rs. 10,000 cannot be appealed, with the exception of a legal appeal. Sections 96(1) and 96 allow a party contesting the compromise to do so. On the grounds of fraud, deception, etc., a decree may be contested. The initial decree may be appealed if it was ex parte.

Revision

According to Section 115 of the CPC, if a lower court has utilised its authority in a way that goes against the law, the high court may request a review of the case, did not use the legal authority specified in the Act and when a subordinate court inappropriately assumes jurisdiction.

Cases where transfer is allowed

Cases may be transferred from one court to another if:

There is a plausible fear on the side of the party that justice will not be served in the current court where the case is pending.
Balance of practicality.
When a case involving the same claim was brought by two parties in separate courts.
Where actions are ongoing in another court yet the facts and the law are the same.
The situation where the judge is biased and discriminating.

Cases where transfer is not allowed

If there is only a balance of the applicant’s convenience.
When judges provide their preliminary decision on a matter.
Where there are only false facts in an incorrect order.
It is asserted that the opposing side is a powerful guy in the community.
Whenever it is claimed that the court is located far from the applicant’s home.

Conclusion

Transfer authority must be used fairly, carefully, and in the interests of justice. The opposing interests should be resolved by the court. Justice is the most important factor, and the court must act without hesitation if transferring the case is required to further justice. However, there are some restrictions on the types of cases that can be transferred and the conditions under which it can or cannot be done, which might cause annoyance and complication. The transfer of cases must take into account pertinent criteria.

References

https://blog.ipleaders.in/transfer-of-cases/

https://www.legalserviceindia.com/legal/article-384-withdrawal-and-transfer-of-suits.html

Author: Arryan Mohanty,
Symbiosis Law School, Nagpur/Student