Detailed study of Transfer of Suits under CPC, 1908, Section 22 to 25

Introduction

In civil suits, Plaintiff is said to be dominus litis (master of the suit) who has right to choose a forum in which his matter is to be decided. Section 22 of CPC provides for transfer of suits, where jurisdiction of the suit lies in two or more Courts and the suit is instituted in one of such Court, the defendant, after giving notice to other parties may apply to have suit transferred to another Court.

Provided that the application to transfer is made at the earliest possible opportunity and in all cases where issues are settled at or before such settlement. The Court in which application is made after considering objections of the other parties shall determine which of several Courts having Jurisdiction shall proceed.

Purpose behind Transfer of Suits

The purpose behind giving the defendant the power to apply for Transfer of Suits is to ensure that defendant is given opportunity to present his side equally. It is considered as a part of a fair trial where both parties are given equal opportunity to represent. It is also covered by maxim ‘audi alteram partem’ which means hear the both parties. So, section 22 of CPC ensures that these rights of defendant are adequately protected.

Further, In Arvee Industries v. Ratan Lal,[1] it was held that court while deciding the question must bear in mind two conflicting interests: 1) The right of the plaintiff to choose the forum and 2) the power and duty of the court to assure fair trial. So, there should be a balance of convenience of both the parties to be keep in mind by the Court deciding the application on Transfer of Suits.[2]

Court in which application for transfer of Suit lies

Section 23 of CPC provides that the Court in which the application lies. It provides three situations:

1. Several Courts having jurisdiction subordinate to same Appellate Court: The Appellate Court.
2. Subordinate to different Appellate Court but same High Court: The High Court.
3. Such Courts are subordinate to different High Courts: The High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

General Power of Court transferring the suit

Section 24 provides general power of transfer and withdrawal. It consists of five sub-sections. Section 24(1) provides that court on application of any of parties and after hearing such of them as desired to be heard, or of its own motion, without such notice, the High Court or the District Court, may at any stage:

1. Transfer any suit, appeal or other proceeding pending before it for trial to any Court subordinate to it and competent to try or dispose of the same; or
2. Withdraw any suit, appeal or other proceeding pending in any Court subordinate to it; and i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

Sub-section (2) to Section 24 provides that where the suit is transferred under Sub-section (1), the Court in which such suit is transferred, either try from beginning or continue from the previous position when suit was transferred, subject to directions by Court which transferred it.

Sub-section (3) to Section 24 provides that for purposes of this section: The court of additional and assistant Judges shall be deemed to be subordinate to the District Court; the proceedings also includes a proceeding for execution of a decree of order.

Sub-section (4) to Section 24 provides that when a suit is transferred or withdrawn from a Court of Small Causes, the court trying the suit shall be deemed to be Court of Small Causes.

Sub-section (5) to Section 24 provides that under this section a suit may be transferred from a Court which has no jurisdiction to try it.

It’s interesting to note that this provision clearly provides that High Court and District Court has suo motu powers to transfer suit.[3] The provision under Section 22 to 25 are exhaustive in nature. The inherent powers under Section 151 of the Code cannot be exercise for transfer of a case.[4]

Power of Supreme Court to transfer of Suits, etc.

Section 25 provides the power of the Supreme Court to transfer suits, etc. Section 25(1) provides that on application of a party and after notice to parties and after hearing such of them as desired to be heard, the Supreme Court at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. Section 25 (2) provides that every application shall be made by a motion which shall be supported by an affidavit.

Section 25(3) provides that the Court to which suit is transferred will either re-try or proceed from the stage from where suit was transferred as per the directions of the Supreme Court. Section 25 (4) provides that if an application was dismissed on the grounds of being frivolous or vexatious in opinion of the Supreme Court, it may order compensation from applicant to any person opposing the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

Section 25 (5) provides that law applicable to any suit, appeal or other proceedings transferred under this section shall be the law of the Court in which it was originally instituted ought to have applied.

Cases in which Transfer of Suit is allowed

1. Reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending: Jagatguru Shri Shankaracharya v. Ramji Tripathi.
2. To avoid multiplicity of proceedings or conflicting decisions: Indian Overseas Bank v. Chemical Construction Co.
3. Where the judge is interested in one party or prejudiced against the other: Cottle v. Cottle.
4. Where common questions of fact and law arise between the parties in two suits: Indian Overseas Bank v. Chemical Construction Co.
5. Where transfer avoids delay and unnecessary expenses: Baselius Mar Thoma Mathews v. Paulose Mar Athanasiu.

Cases in which Transfer of Suits is not allowed

1. Mere fact that the court is situate at a long distance from the residence of the applicant: Manohar Lal Chopra v. Seth Hiralal.
2. Mere fact that the opposite party is a man of influence in the locality: Subramaniam Swamy v. Ramakrishna Hegde.
3. Refusal to grant adjournment: B.K. Ghosh v. R.K. Jousurendera Singh .
4. Judges making adverse remarks regarding merits of the case: Gujarat Electricity Board v. Atmaram Sungomal Poshani.
5. Mere fact that the presiding officer belongs to a community rival to that of the applicant: Gaja Dhar Prasad v. Sohan Lal.

From these examples, it is easy to distinguish the type of cases in which Court transfer the suit.

Conclusion

Section 22 to 25 of CPC deals with various power of Court to transfer the suits from one Court to another. It includes transfer of other proceedings also. The power of transfer is given to the Court in higher position. They can transfer the suits from their subordinate Courts. The topmost power lies with Supreme Court under Section 25. These power are given to Court to ensure that justice of forum is given to parties. As we have seen in examples through cases, in which cases suit can be transferred. This article sums up the concept of transfer of suits thoroughly.

Frequently Asked Questions

1. What are the legal provisions governing the transfer of suits under the Civil Procedure Code (CPC) in India?

The transfer of suits is primarily governed by Sections 22 to 25 of the CPC.

• Section 22 empowers the defendant to apply for a transfer when the suit is filed in one of several courts having jurisdiction. This application must be made at the earliest possible stage and only before any settlement of issues.
• Section 24 gives the High Court or District Court the authority to transfer or withdraw a suit, either on application or on its own initiative, ensuring that the suit is moved to a court competent to try or dispose of the matter.
• Section 25 provides the Supreme Court with the power to transfer a suit from one state to another if it is deemed necessary for the ends of justice.
  This framework balances the plaintiff’s right to choose the forum with the defendant’s right to a fair trial under the principle of audi alteram partem (hear the other side).

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2. Under what circumstances can a party request the transfer of suits to a different court?

A party—usually the defendant—can seek a transfer when:

• Jurisdiction is shared: The suit is filed in one court although jurisdiction is held by multiple courts, potentially impacting the fairness of the proceedings.
• Ensuring impartiality: The defendant may fear bias or prejudice in the originally chosen forum, which might compromise the fairness of the trial.
• Avoiding multiplicity and conflicting decisions: To prevent parallel proceedings or conflicting judgments, as highlighted in case examples like Indian Overseas Bank v. Chemical Construction Co..
• Reducing delays and expenses: Transferring the suit may help avoid unnecessary delays and additional costs, as noted in Baselius Mar Thoma Mathews v. Paulose Mar Athanasiu.
  The application must be made at the earliest stage, preferably before any settlement of the issues in the suit.

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3. Which court is responsible for handling an application for the transfer of suits, and what criteria does it use?

The court responsible for hearing a transfer application is determined by the hierarchy of the courts, as set out in Section 23 of the CPC:

• When multiple courts under the same appellate court have jurisdiction: The appellate court decides on the transfer.
• When the courts are subordinate to different appellate courts but under the same High Court: The High Court takes up the application.
• When the courts fall under different High Courts: The High Court that has jurisdiction over the area where the suit was originally filed is responsible.
  This structure ensures that the transfer application is managed by the court with the most appropriate jurisdictional and local connection to the suit.

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4. How does Section 24 of the CPC outline the procedure for transferring a suit from one court to another?

Section 24 provides a comprehensive procedure for the transfer of suits:

• Initiation of Transfer: The High Court or District Court may transfer a suit either on the application of any party (after hearing their arguments) or on its own motion.
• Modes of Transfer: The court can:
  • Transfer the suit to any subordinate court that is competent to try or dispose of the case.
  • Withdraw the suit from a subordinate court and either try it itself or transfer it to another appropriate court.
• Continuity of Proceedings: Once transferred, the receiving court may either start the trial afresh or continue from the stage where the suit was left off, following the directions provided by the transferring court.
• Additional Clarifications: The section also outlines that courts of additional and assistant judges are considered subordinate to the District Court and that the provisions apply even if the original court lacks proper jurisdiction.
  This procedure ensures that the case is dealt with efficiently while maintaining judicial fairness.

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5. Does the Supreme Court have the authority to transfer suits between states, and if so, under what conditions or sections?

Yes, under Section 25 of the CPC, the Supreme Court holds the authority to transfer suits across state lines:

• Applicability: This power is exercised when an application is made by a party—supported by an affidavit and following due notice to all parties—requesting the transfer of a suit from a High Court or another civil court in one state to a corresponding court in another state.
• Judicial Discretion: The Supreme Court will assess whether such a transfer is expedient for the ends of justice. It considers factors such as the balance of convenience for both parties, ensuring that neither side is unduly prejudiced by the forum.
• Post-Transfer Proceedings: The court receiving the transferred suit may either re-try the case or continue from the point where it was left off, in accordance with the Supreme Court’s directions.
• Deterrent Against Frivolous Applications: If an application is found to be frivolous or vexatious, the Supreme Court may order compensation against the applicant, up to a prescribed limit.
  This power is critical for addressing jurisdictional issues and ensuring that justice is administered effectively across state boundaries.

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[1] AIR 1977 SC 2429.

[2] Indian Overseas Bank v. Chemical Construction, AIR 1979 SC 1514.

[3] Kulwinder Kaur v. Kandi Friends Education Trust, (2008) 3 SCC 659.

[4] Durgesh Sharma v. Jayshree, (2008) 9 SCC 648.