Author Name:   PRASHANTI UPADHYAY

An Application for transfer of Suit under Section 25 of the Code of Civil Procedure

Transfer Petition in India

An Application for transfer of Suit under Section 25 of the Code of Civil Procedure

Section 25 of the Code of Civil Procedure enables the Supreme Court to transfer any Case, appeal or other proceedings from High Court or other civil court in one State to a High Court or other civil court in any other State. This power may be exercised by the Supreme Court if it is satisfied that an order under this Section is expedient for the ends of justice. Hence wide powers are given to the Supreme Court to order a transfer if it feels that the ends of justice so require.

In Dr. Subramaniam Swamy v. Ramakrishna Hegde, the Court held that:
The paramount consideration for transfer of a case under Section 25 of Code of Civil Procedure must be the requirement of justice. It was held that the mere convenience of the parties or anyone of them may not be enough for the exercise of power, but it should even be shown that trial within the chosen forum can lead to denial of justice. The Court further held that if the ends . of justice so demand and the transfer of the case is imperative, there should be no hesitation to transfer the case. The right of the dominus litis to choose the forum and consideration of plaintiff s convenience etc. cannot eclipse the requirement of justice. Justice must be done at all costs; if necessary by the transfer of the case from” one court to another.

This provision has been most often invoked in matrimonial matters, and usually at the instance of the wife. When the husband and wife are living separately and the husband files -a petition for divorce or institutes other proceedings under the law relating to marriage and divorce at the place where he is residing, which is usually the place where the parties last resided together, the wife, who has often returned to her parental home, moves for transfer either on the ground that she cannot afford to travel or that she cannot leave her child behind or that she faces threats when she goes to defend the proceedings. The Court invariably takes a sympathetic view towards the wife’s plea for transfer, but this is net always the case.

In Kalpana Devi Prakash Thakar Vs. Dev PrakashThakar, the Court disallowed the wife’s plea for transfer of the matrimonial proceedings from Mumbai. to Palanpur, Gujarat taking into account the following considerations:
i. The husband was a medical practitioner and his absence from Mumbai would cause inconvenience to his patients;

ii. His old and ailing mother who. lived with him needed regular medical check-ups and constant care;

iii. The witnesses were principally from Mumbai;

iv. The wife had relatives in Mumbai with whom she could stay. Whenever she went there-for the case;

v. The husband was ready to bear the expenses of travel and also the traveling expenses of the escort.

vi. Palanpur was well connected to Mumbai by train.

In Shiv Kumari Devendra Ojha Vs. Ramesh Shitla Prasad Ojha, the Court disallowed a lady’s application for transfer of an application for grant of a succession certificate, from Gujarat to U.P. Her main plea was that being a lady she was unable to travel from U.P. to Gujarat. The Court disallowed the petition mainly on the ground that the respondent was ready to pay” the traveling expenses. The Court further held. that if the petitioner had any difficulty in engaging a counsel because of financial constraints, she could file an application to recover the amounts paid for the same from the respondents, in the trial court at Gujarat.

A couple of problems have arisen in the context of the power of the Court to order transfer under Section 25 CPC often the Court has felt that the parties would be Well advised to dissolve their marriage by mutual consent, and sometimes .the parties themselves have to come to such an understanding. In such a situation, the court has often permitted the parties to file a petition for divorce by mutual consent.in the supreme Court itself.

However, some Benches have taken the View that this cannot be done and that such a petition can only be filed in the trial court. It is respectfully submitted that the Court is not justified in relegating the parties to the trial court when both the parties are willing to dissolve. the marriage by mutual consent. It is precisely in such situations that the power of the Court under Article 142 of the Constitution can come to the aid of parties, because “complete justice” is then done. The requirement that the petition for divorce by mutual consent should be filed before the Court of District Judge or the Family Court, is at best a procedural matter, and does not touch upon the substantive rights of the parties.

Another problematic situation which arises sometimes is when the transfer of a case is sought from the State of Jammu and Kashmir. Code of Civil Procedure does not apply to the State and therefore the provisions of Section 25 of the Code of Civil Procedure also would not apply.

In Kiran Ramanlal Jani Vs. Gulam kadar, .the petitioner had prayed. for transfer of a motor accident claim from Jammu and Kashmir to Gujarat. The Court allowed the transfer petition in the absence of any objection on behalf of the respondents and their non-appearance even after service. It is, however, submitted that there has to be a sounder legal basis for such transfer. When the party desires a transfer of a case from Gujarat to the State of Jammu and Kashmir, the appropriate course would be to file a petition for special leave under Article 136 against the order directing issue of summons, personal appearance, etc. Once the Court is seized of the matter under Article 136 of the Constitution, it would have power under Article 142 to direct transfer, in order to do complete justice.

A couple of other cases may now be noticed. On a petition under Section 25 of the Code of Civil Procedure, a civil suit pending in the Court of the Subordinate Judge, Patna was transferred to the Bombay High Court to be tried with another suit pending on the original side of the Bombay High Court. Thereafter the suit in the Bombay High Court was decided and was carried in appeal In Bihar State Food and Supplies Corporation v. Godrej Soaps (P) Ltd. and Sons, a petition under Section 25 CPC was filed for re-transfer of the suit to the Subordinate Judge at Patna on the ground that the purpose of transfer was over since the two cases could not now be tried together. The Court disallowed the petition for transfer and requested the learned Judge on the Original Side to frame the necessary issues in the suit within six weeks and thereafter take evidence on a day-to-day basis. The entire evidence and the record of the suit were thereafter to be transmitted to the Division Bench for consideration along with the earlier suit which had gone in appeal, so that conflicting decisions could be avoided.

In Avtar Singh and Co. Pvt. Ltd. v. S.S. Enterprises, a petition was filed, under Section 25 CPC for transfer of the suit from the Calcutta High Court to the District Court at Kanpur where a suit was already pending. The Court directed the Calcutta suit to be transferred to Kanpur taking into account of fact that Kanpur suit was filed earlier in point of time, and that the suit was filed in Calcutta was in the nature of a cross-suit.

Application For Transfer Under Section 406 Of The Code Of Criminal Procedure

Section 406 of the Code of Criminal Procedure gives power to the Supreme Court to transfer criminal cases and appeals pending in one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal Court of equal or superior jurisdiction subordinate to another High Court.

The Supreme Court can act under the section only on the application of the Attorney General or of a party interested. Where an application under Section 406 Of The Code of Criminal Procedure is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious order the applicant to pay by way of compensation to the respondent such sum not exceeding Rs 1000.

In Maneka Sanjay Gandhi v. Miss Rani Jethmalani, the Supreme Court pointed out as to when the Court can exercise the power of transfer. Justice Krishna Iyer observed as follows:


“Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mine-grievances. Something more substantial more compelling, more imperiling from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer; this is the cardinal principle although the circumstances may be myriad and vary from case to case.

A few recent cases under Section 406 Cr.P.C. may be noticed.

In Abiram Veer v. North Eastern Regional Agricultural Marketing Corporation Ltd, the Supreme Court declined transfer of 10 cases under Section 138 of the Negotiable Instruments Act pending before Courts at Gauhati. The court did not find sufficient reason to order transfer, merely because it was alleged that the cause of action arose at Lucknow and that therefore the Court at Lucknow could exercise jurisdiction. The Court held y that the question of jurisdiction would have to be raised before the Court where the case is pending. The Court did not find the petitioner’s plea that the situation at Gauhati posed a danger to his life, as sufficient ground for ordering transfer, as the same would apply to the other side also. The Court, however, left it open to the petitioner to apply for exemption from personal appearance in cases where he made the first appearance and directed that if such an application was made, the Magistrate concerned would exempt him from personal appearance on the following conditions: -

1) The counsel on his behalf would be present in the court on all days when the cases are taken up.
2) The petitioner will not dispute his identity.
3) The petitioner would be present in court when his presence is imperatively needed, such as, the examination under Section 313 of the Criminal Procedure Code.

But in Neelam Kanwar Vs. Devinder Singh Kanwar, the Court allowed the wife’s petition for transfer of a complaint filed by the husband’s father under Section 500 IPC from Chandigarh to Mumbai. The Court held that’ even if it is assumed that the permanent place of the residence of the respondent was Chandigarh and not Mumbai, though, the petition described him as having a permanent residence at Mumbai, the fact was that the petitioner was a lady, and therefore as a matter of convenience, a transfer to the. place where the lady was residing would be preferred by the Court, unless it was shown that there were special reasons .not to do so.

In Ayyannar Agencies v. Sri Vishnu Cement Ltd, five complaints had been filed by the respondent under Section 138 of the Negotiable Instruments Act before the Court of the Metropolitan Magistrate at Chennai and thereafter one complaint was filed before the Metropolitan Magistrate at Hyderabad against the petitioners in respect of two cheques for the same offences under Section 138 of the Negotiable Instruments Act. Transfer was sought of the Hyderabad case to Chennai on the ground that parties in all cases were the same and the offence is of the same nature though pertaining to different cheques. The Court allowed the petition for transfer holding that the transfer prayed for could only be in the interests of justice and for the convenience of conducting the trial and disposal of all the cases.

However, in Abdul Madani v. State of Tamil Nadu, the Court disallowed the plea for transfer. The petitioners-prayed for transfer of the case pending against them in Tamil Nadu to Kerala alleging that the surcharged communal atmosphere in Tamil Nadu made the conduct of a fair trial impossible. The Court found as a matter of fact that a fair and speedy trial of the case was possible and the accused persons need not have any cause for apprehension. The court observed that the apprehension of not getting a fair and impartial trial is required to be reasonable and not imaginary. The Court observed that no universal or hard and fast rules can be prescribed for deciding the transfer petition, which always had to be decided on the basis of the facts of each case. The Court also observed that the convenience of the parties, including the witnesses to be produced at the trial was a relevant consideration, that convenience of the parties does not necessarily’ mean the convenience of the petitioner alone and that convenience for the purpose of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interests of the, society.

In State of Assam vs. Dr. Brojen Gogoi, the Supreme Court while setting aside an order of the Bombay High Court granting anticipatory bail on the ground that the State of Assam was not heard; directed transfer of the application for anticipatory bail to the Gauhati High Court on the ground that the alleged offences could have been committed only within the territorial jurisdiction of the Gauhati High Court and it was that High Court, which was the appropriate forum to deal with an application for anticipatory bail. This case is an authority for the proposition that the Court can act suo motu under Section 406 of CrPC, if it feels the interests of justice so require.”

Jurisdiction of The Supreme Court To Withdraw And Transfer Cases Under Article 139-A Of The Constitution

Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or, before two or more High Courts, and the Supreme Court is satisfied on its own motion or on an application made by the Attorney General for India or by a party to any such case, that such questions are substantial questions of general importance Article 139-A(I) of the Constitution empowers the supreme Court to ‘withdraw’ the matters pending before the High Courts to itself and dispose of all the cases by itself. This provision is often invoked when the constitutional validity. of a central legislation is challenged. Article 139-A(2) empowers the Supreme Court, if it deems it expedient so to do for the ends of justice, to transfer any case, appeal or other proceedings pending before any High Court to any other High Court.

Before going to some illustrative examples of the exercise or refusal to exercise powers under Article 139-A, it is worthwhile to notice the decision of the Supreme Court in Union Carbide Corporation v. Union of India Here, in the context of a challenge to the settlement of the Bhopal gas case [Union Carbide Corporation v. Union of India, (1989) 1 SC 674] the withdrawal of the main civil suit and criminal proceedings to the Supreme Court was challenged on the ground that the requirements of Article 139-A of the Constitution were not satisfied. In rejecting the plea that the case could not have been so withdrawn, the Supreme Court held that Article-139 did not exhaust its power of withdrawal and transfer, and that its power under Article 136 and 142(I) were also available for the purpose.

It is not always that the Court exercises its power to transfer merely because the constitutional validity of a provision is already in question before it Thus in Vinod Chandra Chiman Lal Shah v. Union of India, the Court was asked to transfer certain writ petitions pending in the Gujarat High Court challenging the constitutional validity of the COFEPOSA and SAFEMA on the ground that the said questions were under consideration before a bench of nine Hon’ble Judges of the Supreme Court. Originally, the Supreme Court had stayed the proceedings in the High Court. However, the writ petitioners. before the High Court gave an undertaking that they would give up the ground based on the constitutional validity of the provisions, and the Court accordingly rejected the prayer for transfer.

On the other hand, in Union of India v. Dr. M. Ismail Faruquil the Supreme Court received a reference under Article 143 of the constitution from the President with regard to the Babri Masjiel issue after the demolition of the Masjid. The Central Government had passed an Ordinance for acquisition of the disputed land, which later became an Act. The validity of the Ordinance and the Act were challenged before a larger bench of High Court of Allahabad. In view of the fact that there was a Presidential reference pending in the Supreme Court -and a writ petition had also been filed in the Supreme Court challenging the validity of the Ordinance and Act, the Court withdrew the writ petitions pending in the Allahabad High Court to itself.

But in Central Coat Fields v. State of M.P, the Court rejected the prayer for transfer of petitions pending in various High Courts to itself though the points for determination were the same as those pending before the Supreme Court. The Court held that it was open to the petitioners to apply in the High Court in the pending writ petitions for interim relief in the same manner as was prayed for before the Supreme Court and ordered that further hearings in the writ petiti6n would remain stayed. It appeared that the main reason which weighed with the Court in refusing the transfer was that the Court’s own docket should not get crowded with a large number of cases. It is, however, respectfully submitted that this is not an appropriate course for the Court to adopt because each and every writ petitioner before the various High Courts could still move intervention applications in the matter pending before the Supreme Court on the ground that the decision of the Supreme Court would finally conclude their writ petitions in the High Court.

A better course was adopted in Securities and Exchange Board of India vs. Bombay Stock Exchange Brokers Forum, where the Court while transferring some matters to itself, stayed hearing on other petitions in the High Courts on similar issues, but granted liberty to apply for intervention in the transferred cases; In Delhi Development Authority vs. Skipper Constructions the Supreme Court directed transfer of all cases regarding different properties concerning the Skipper Construction company to itself.

In KV. Venkatapathi v. State a transfer petition was filed, by the petitioner under Article 139A of the Constitution, with an application for’ permission to file the transfer petition. The petitioner who was the ex Advocate General of the State of Tamil Nadu and had been appointed by the High Court as a Special Prosecutor, had averred that he was not provided the necessary papers in the appeals filed by the Chief Minister of Tamil Nadu, Ms J. Jayalalitha. The Supreme Court issued notice and stayed the hearing of the appeals after granting permission to file the transfer petition. By its further order disposing of the transfer petition, the Court ordered rehearing of the matter after all the documents were supplied to the petitioner.

 

ISBN No: 978-81-928510-1-3
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