As a general rule, a plaintiff as arbiter litis or dominus litis has right to choose his own forumwhere a suit can be filed in more than one court. Normally, this right of the plaintiff cannot be curtailed, 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.
Section 22 to 25 of the Code of Civil Procedure, 1908 lay down the provisions relating to transfer of suits from, one court to another as detailed below:
- Power to transfer suits which may be instituted in more than one court (Section 22).
- To what Court application lies (Section 23).
- General power of transfer and withdrawal (Section 24) and
- Power of Supreme Court to transfer suits etc. (Section 25)
The primary and paramount object of every procedural law is to facilitate justice. A fair and an impartial trial is a sine qua non and 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. 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.
NATURE AND SCOPE:
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 any suit, appeal or other proceeding from a court subordinate to that High Court to a court not subordinate to that High Court. Section 25 confers very wide, plenary and extensive powers on Supreme Court to transfer any suit, appeal or other proceedings from one High Court to another Civil Court in another state.
Section 15-20 CPC deals with territorial jurisdiction of a court. As per principles laid down therein, the plaintiff is at liberty to institute a suit by choosing his own forum. Since the provisions relating to transfer of cases interfere with the said right, they should be constructed strictly.
In Jagatguru Shri Shankaracharya v. Ramji Tripathi, it was observed:
“The plaintiff, as arbiter litis, has a right to choose his own forum and that right should not be interfered with except on a very strong ground.”
WHO MAY APPLY! SECTIONS 22-23:
Sections 22 and 23 of the Code deals with right of the defendant to apply for the transfer of a suit. Where the plaintiff has the choice of two or more courts in which he may institute a suit, a defendant, after notice to the other side, may at the earliest opportunity apply to a court to have the suit transferred from the court in which it is filed to another court. In other cases, such application may be filed by any party to the suit, appeal or other proceeding.
Before transfer is ordered under Section 22, two conditions must be satisfied, namely (i) The application must be made at the earliest possible opportunity and in all cases, where issues are settled, at or before the settlement of issues; and (ii) notice must be given to the other side. The provision as to notice is mandatory. Such notice may be given by the party making an application or by the court.
TO WHICH COURT APPLICATION LIES:
The Code specifies the court to which an application for transfer can be made:
- Where several courts having jurisdiction are subordinate to the same appellate court, an application for transfer can be made to that appellate court.
- Where such courts are subordinate to the same High court, an application can be made to that High Court, and
- Where such courts are subordinate to different High Court within the local limits of whose jurisdiction, the court in which the suit is instituted is situate;
- The Supreme Court may transfer any suit, appeal or other proceeding from one High Court, or from one Civil Court in State to another Civil Court in any other State.
An application for transfer may be made by a party seeking transfer of case filing a petition supported by an affidavit setting forth the grounds of transfer. In an appropriate case, however, an affidavit in support of the application may be dispensed with. But no specific formis prescribed by the Code.
(a). General Rule
The plaintiff is dominus litis and as such he has the right to choose his own forum and, normally, this right of the plaintiff cannot be interfered with or curtailed either by the opposite party or by the court.
A court may transfer any suit, appeal or other proceeding keeping in view relevant and germane considerations. There is unanimity of opinion that balance of convenience is of prime consideration for transfer of suit. The expression “balance of convenience” has inspired profound legal thought and has acquired the gloss of many judicial interpretations. Restated in simple terms it is a question of fact in each case. Balance of convenience is neither the convenience of the plaintiff alone nor of the defendant alone but of both. In determining the balance of convenience for the trial of a suit, the court has to take into consideration, (I) convenience or inconvenience of the plaintiff and the right of the plaintiff to choose his own forum; (II) convenience or inconvenience of defendant; (III) convenience or inconvenience of the witnesses required for a proper trial of the suit; (IV) convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the main points involved in the suit and also having regard to the doctrine of “forum conveniens”; and (V) nature of issues in the suit.
APPROACH OF COURT:
The jurisdiction to transfer a case must be exercised with extreme care, caution and circumspection. The search should be for the justice and the court must be satisfied that justice and the court must be satisfied that justice could more likely to be done between the parties by refusing to allow the plaintiff to continue his suit in the forum of his own choice. A mere balance of convenience in favour of the proceedings in another court, albeit a material consideration, may not always be a sure criterion justifying transfer.
When an application for transfer is made under Section 22, notice of such application must be given by the defendant to the other side. The words “after notice to other parties” indicate that notice must be given prior to the making of application. When an application is made by any party to the proceeding under Section 24, notice must be given by the court to the opposite party before making any order of transfer.
In Manjari Sen v. Nirupam Sen, it was held by the High Court of Delhi that requirement of prior notice cannot be regarded as mandatory unless it has caused prejudice to the other side.
It is, however, submitted that requirement of giving notice must be held to be mandatory. And an order of transfer without notice to the opposite party must be held to be bad in law being violate of the principles of natural justice and fair play.
But it may also be seated that where a court transfers a case suo motu, non-issuance of notice will not make the order non est.
SUO MOTU TRANSFER:
Over and above an application by a party to the suit, appeal or other proceeding, a High Court has power to transfer a suit, appeal or other proceeding even suo motu.
POWER AND DUTY OF COURT:
The power to transfer a case is in the discretion of the court. This discretion, like every other discretion, has to be exercised judicially, keeping in mind that the law confers a right on the person irritating the proceedings to choose one of the several forums available to him and, as arbiter litis, he has the right to select his own forum. Normally, such a right should not be interfered with or curtailed.
But it cannotreasonably be contended that the plaintiff making an improper choice of forum is immune and his choice cannot be questioned. A court would be justified in inquiring into the circumstances to ascertain whether the right was exercised by the plaintiff mala fide or for some ulterior motive or in abuse of his position as dominus litis. Exercise of discretion being dependent on facts and circumstances of each case precedents would not be of much assistance.
The power of transfer must be exercised with extreme caution and circumspection and in the interests of justice. The court while deciding the question must bear in mind two conflicting interests; (i) as a dominus litis the right of the plaintiff to choose his own forum; and (ii) the power and duty of the court to assure fair trial and proper dispensation of justice. The paramount consideration would be the requirement of justice. And if the end of justice demand transfer of case, the court should not hesitate to act.
Again, while dealing with an application or for prayer of transfer, the court should not enter into merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or other side. At the same time, however, an order of transfer must reflect application of mind by the court and circumstances which weighed in taking the action. Power of transfer cannot be exercised Ipse Dixit.
POWER TO TRANSFER SUITS WHICH MAY BE INSTITUTED IN MORE THAN ONE COURT (SECTION22):
There are certain cases in which the plaintiff will have an opportunity to properly file suit in one of two or more courts competent to try the suit. In such cases, the defendant may apply to have the suit transferred to another court, which also has the jurisdiction to hear/ try the suit. The defendant has to apply for the transfer of the notice of the other parties at the earliest. Section 22 reads as follows:
“Where a suit may be instituted in any one of two or more courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement apply to have the suit transferred to another court, and the Court to which such application is made, after considering the objections of other parties(if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.”
TO WHAT COURT APPLICATION LIES (SECTION 23):
Section 23 speaks about, to what court defendant has to apply for transfer of suit instituted by the plaintiff under Section 22. According to Section 23, such application for transfer of suit shall be made-
- To the appellate Court where the several Courts having jurisdiction are under same Court of appeal.
- To the same High Court when such Courts are subordinate to different Appellate Courts and
- To the High Court within the local limits of, which jurisdiction the Court in which the suit is brought is situate where such courts are subordinate to different appellate courts.
Section 23 reads as follows:
- “When the several Courts having jurisdiction are subordinate to the same appellate court, an application under Section 22 shall be made to the appellate court.
- Where such courts are subordinate to different appellate Courts but to the same High Court, the application shall be made to said 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 situate.
GENERAL POWER OF TRANSFER AND WITHDRAWALSECTION 24:
- On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or its own motion without such notice, the High Court or the District Court may at any stage-
- Transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
- Withdrawal any suit, appeal or other proceeding pending in any Court subordinate to it, and-
- Try or dispose of the same; or
- Transfer the same for trial or disposal to any Court subordinate to it and competent to try to dispose of the same; or
- Retransfer the same for trial or disposal to the Court from which it was withdrawn
- Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the court which (is thereafter to try or dispose of such suit or proceeding) may, subject to any special direction in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
- For the purpose of this section, –
- Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
- “proceeding” includes a proceeding for the execution of a decree or order.
- The court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
- A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.
Sec. 24 lays down the general power of transfer and withdrawal by the High Court or the District Court. The section provides a power to retransfer of the suit for trial or disposal to the court from where the same was withdrawn. This power can be exercised at any stage, Suo motu by the court without application. Sec 24 has undergone some changes by the C.P Code Amendment Act of 1976. Prior to this Amendment there was conflict of judicial decisions over the application of this section. By introducing sub Sec.3(b), it has now been specifically provided that the power of transfer also applies to an execution proceeding. Later Sub-section (5) introduced by the Amending Act of 1976 specifically provided that a suit or a proceeding may be transferred from a court which has no jurisdiction to try it.
Case Study- Seshagiri Rao v. Somasundaramma (AIR 1949 Mad.65) it was observed by the court that the power granted under Sec.24 can be exercised at any stage of the proceeding and even Suo motu by the court even without application.
Justice must not only be done, but also appears to be done.
This section deals with the general power of a High Court or a District Court to either transfer or withdraw any suit etc., on the application of any of the parties. The power may be exercised at any stage. However, no order for the transfer of a suit from one court to another would be passed under this section unless the suit the suit in the first instance was brought in a court of competent jurisdiction.
Case Study-Syamnandan v. Dhanpati Kuer (AIR 1960 Pat.244), the High Court of Allahabad holds that the Court of first instance has no jurisdiction to dispose of the suit, appeal, or proceeding, cannot oust the jurisdiction of the High Court or District Court to transfer the same to a Court competent to try it.
If a suit is retuned to plaintiff for presentation to proper court on grounds of want of jurisdiction, it would not be a case of ‘transfer’ of suit but of lack of jurisdiction of court in which it was earlier filed on presentation and also it would not be treated as continuation of proceedings. If a High Court has not purported to withdraw the suit from the trial court and try the same. It cannot try the issue arising in the suit, in revision against an interlocutory order, even if the parties concede it has no power to decide the issues.
Thus, apart from other provisions there is the general power of transfer and withdrawal vested in the High Court or the District Court which on the application of any parties and after notice to the parties, and after hearing such of them as desired to be heard, or of its own motion without such notice can be either transferred of withdrawn in order to dispose.
The purpose of Section is merely to confer on the court a discretionary power. A court acting under Sec.24 of the code may or may not in its judicial discretion transfer a particular case.
Case Study-Jitendra Singh v. Bhanu Kumari, (AIR 2008 SC 2987), it was held by the court that when an application is made for transfer by a party, the court is required to issue notice to the other side and hear the party before directing transfer.
GROUNDS OF TRANSFER:
As a general rule, the court should not interfere unless the expenses and difficulties of the trial would be so to lead injustice or the suit has been filed in a particular Court for the purpose of working justice.
The mere convenience of the parties may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial justice.
Illustration-‘A’ a landlord files a suit against the tenant ‘B’. The respondent file another suit for permanent injunction at another place against the landlord on the ground that the suit filed by the landlord against the so-called tenant is collusive and they the respondents cannot be joined as party respondents between the landlord and the tenant. In the interest of justice landlord’s suit should be transferred.
In matrimonial proceedings the convenience of wife is looked at and accordingly the suit should be transferred at the wife’s place.
Case Study-Renu Gautham v. Vinod Gautham (AIR 2000 SC 3405), it was observed in peculiar facts and circumstances a divorce petition which is pending in a court can be transferred to another court.
Withdrawal of socially sensitive suits affecting considerable section of the public could not be rejected by exaggerating importance of demeanor of witnessed
A case will not be transferred if both the parties have no objection for change of court and where an application seeks transfer of succession application on ground that no advocate is available at place where the case is pending. Such a ground is not tenable.
The petition for the transfer of writ petition from High Court to Supreme Court are liable to be rejected.
Case Study-State of West Bengal v. Mahurgong & Gulma Tea Estate (AIR 1988 SC 1450), it was observed by the apex court that the petitions for the transfer of writ petitions from High Court to the Supreme Court are to be rejected and same can be disposed by High Court itself.
DUTY OF THE COURT:
Where court feels that the plaintiff or the defendant is not likely to have a ‘fair trial’ in the court from which he seeks to transfer a case, it is not only the power, but duty of the court to transfer the case.
Case Study-Raheja Builders Pvt. Ltd v. Rathi Ferrous Trading P. Ltd (175 (2010) DLT 366 (367-680) (DB)), it was held that no case can be made out where parties were different, cause of action was different and there was no commonality of issues.
No notice is necessary if the court acts under this section Suo motu i.e. of its own motion. But if an application is made, notice is must and an order for transfer made without notice will be set aside, and so will an ex parte decree made by a court to which a suit has been transferred without notice to the defendant.
- High Court can order withdrawal of suit if process is abused.
- High Court can suo moto withdraw any suit.
- There is no question of transfer of case when the applied court lacks jurisdiction.
- A case cannot be transferred from District Court to Special Court.
- An order passed on an application under Section 24 of the Code cannot be made appealable under Section 104 of the code or under any provision of the Code.