Dr.

Ram Manohar Lohiya National Law University,

Lucknow

ACADEMIC SESSION: 2016-17

CIVIL PROCEDURE CORE,1908
PROVISION RELATING TO THE TRANSFER OF CASE
SUBMITTED TO: SUBMITTED BY:

Dr. RADHESHYAM PRASAD NAYANIKA RAWAT

ASST. PROFESSOR (LAW) B.A LL.B (Hons.)
DR. RAM MANOHAR LOHIYA 4th SEMESTER
NATIONAL LAW UNIVERSITY. ROLL NO: 89

1
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ................................................................................................................. 3
LIST OF AUTHORITIES....................................................................................................................... 4
INTRODUCTION .................................................................................................................................. 5
OBJECT AND NATURE OF PROVISIONS FOR THE TRASFER OF SUIT ..................................... 8
APPLICATION FOR TRANSFER OF SUIT ........................................................................................ 9
COURT IN WHICH APPLICATION SHOULD LIE ...................................................................... 10
GROUNDS ........................................................................................................................................... 11
POWER AND DUTY OF COURT ...................................................................................................... 15
APPEAL AND REVISION .................................................................................................................. 16
ILLUSTRATIVE CASES ..................................................................................................................... 16
TRANSFER ALLOWED: ................................................................................................................ 16
CONCLUSION ..................................................................................................................................... 18
REFERENCES ..................................................................................................................................... 19

2
LIST OF ABBREVIATIONS
 Pat Patna
 ADJ Additional District Judge
 AIR All India Reporter
 SCC Supreme Court Cases
 Mad. Madras
 SC Supreme Court
 Lah Lahore
 All Allahabad
 v versus
 MP Madhya Pradesh
 Corp. Corporation
 Cri LJ Criminal Law Journal
 Del Delhi

3
LIST OF AUTHORITIES
Cases

Abdul Rahman V. Prasony Bai & Anr.,AIR 2003 SC 718. .................................................................... 8

Anjali Ashok Sadhwani v Ashok Kishinchand Sadhwani, AIR 2009 SC 1374. .................................. 13
Arvee Industries v Ratan Lal, (1977) 4 SCC 363. ................................................................................ 17
Asrumati Debi v Rupendra Deb, AIR 1953 SC 198,200-01 ................................................................. 16
Dasarath Prasad v Bajinath Prasad, AIR 1960 Pat 285. ........................................................................ 16
Durgesh Sharma v Jayshree, (2008) 9 SCC 648 ..................................................................................... 7
Edulji Dinshaw v. Dhanpat Mal Bhagwan Das ,Air 1928 Lah 183. ..................................................... 10
Fatema vs. Jafri Syed Husain v Syed Parvez Jafferi AIR 2009 SC 1773. ............................................ 13
Gulab Chand v. Sher Singh, Air 1916 Lah 95. ....................................................................................... 9
Indian Overseas Bank v Chemical Construction Corp,(1979) 4 SCC 358 ............................................. 7
Kali Charan v Sudha Rani ,(2011) 15 SCC 199. .................................................................................... 14
Lakshmi Narain v ADJ,AIR 1964 SC 489.............................................................................................. 9
Majari Sen v Nirupama Sen ,AIR 1975 Delhi 42 ................................................................................. 10
Manak Lal v Dr. Prem Chand, AIR 1957 SC 425. ............................................................................... 16
Maneka Sanjay Gandhi v Rani Jethmalani,(1979) 4 SCC 167. ............................................................ 17
Manohar Lal Chopra v Seth Harilal ,AIR 1962 SC 527. ...................................................................... 17
Mt. Basanti Devi v. Mt. Sahgdra ,AIR 1935 All 979............................................................................ 10
Mula Naramma v Mula Rengamma ,AIR 1976 Del 184. ..................................................................... 17
Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC
646 ...................................................................................................................................................... 8
Pushpa Devi v Jai Narain, (1992) 2 SCC 676. ........................................................................................ 8
Rajagopala Pandarathar & Ors. V. Tirupathia Pillai & Anr ,AIR 1926 Mad. 421 ..................................... 8
Ranbir Yadav v State of Bihar ,(1995) 4 SCC 392. .............................................................................. 13
Smt. Sudha Sharma vs. Ram Naresh Jaiswal, AIR 1990 MP 320 ........................................................ 11

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INTRODUCTION
In every civil dispute, the plaintiff has the right to decide the forum where he/she wishes to
institute the suit provided it has the jurisdiction to try the suit. However, in such cases where
more than one forum is available and even otherwise, this right of the plaintiff is limited by
the power of superior Courts to transfer or withdraw the case from a subordinate Court to
another Court. Sections 22 to 25 of the Civil Procedure Code, 1908 deal with the law relating
to transfer of civil suits.

Section 22 of the Civil Procedure Code (CPC) interferes with the right of the plaintiff to
choose the forum of his choice where more than one Court has jurisdiction to try the suit. It
gives the defendant the option to get the forum changed if the forum chosen is causing great
hardship and inconvenience to the defendant. The main factor to be considered is the balance
of convenience. It is important that the request for transfer of suit is made at the earliest
possible instance and after giving notice to the plaintiff. he Courts exercise discretion in these
transfer applications and the burden lies upon the applicant to show to the Court that
predominantly the balance of convenience is on his side. It is the prime consideration for
transferring the suit. ]Generally in matrimonial disputes where the wife is unable to bear the
expenses of travel and other ancillary costs of the suit, the Courts have transferred the case to
the wife’s place of stay. Section 22 has to be read along with section 23 of CPC, which
provides for the forum wherein the applications under section 22 have to be moved. The
application has to be made to the Appellate Court to which both the Court where the suit is
pending and to where the suit is sought to be transferred are subordinate. In cases where, the
two Courts are subordinate to different Appellate Courts but the same High Court, the
application has to be made to the High Court. In all other situations the application is made to
the High Court within whose jurisdiction lies the Court where the suit is pending.

Section 24 of CPC extends the option of getting the forum changed to either party to a suit
and gives them the option to move an application for transfer of suit to another Court. This
section also empowers the High Court to suo moto (on its own motion) withdraw any case
from a subordinate Court and adjudicate on it or transfer it to another Court. The High Court
exercises its powers under this section keeping in mind the interest of justice and convenience
of the parties. It is to be ensured that unnecessary inconvenience is not caused to any
party. Some other grounds for seeking the transfer of suit are prejudicial approach of the
Court from which transfer is sought. However this apprehension of prejudice must be
reasonable. Mere presumptions or possible apprehension cannot and should not be the basis

5
of transferring a case from one Court to another. The power of transfer of a case from one
Court to another has to be exercised with due care and caution bearing in mind that there
should be no unnecessary, improper or unjustifiable stigma or slur on the Court from which
the case is transferred. Sometimes a transfer is sought when two or more related cases, with
similar parties and subject matter are being tried individually so that they are clubbed
together and tried or adjudicated upon in one Court. However, the power of the High Court
under Section 24 does not give it the power to transfer cases from Courts in one state to
another. This limits the power to transfer cases within its jurisdiction.

Section 25 gives the Supreme Court the power to transfer a case from any Court in the
country to any other Court in any state whether or not the Court has jurisdiction to try the
suit. This power is however exercised very sparingly where it is expedient for the ends of
justice. The section mandates that every application under it is supported by an affidavit and
it may be dismissed with cost if found to be vexatious and frivolous. The law, which governs
the suit that has been transferred to another Court, is the law that the Court where the suit was
initially instituted would have applied. The exercise of discretion under this section cannot be
for reasons like balance of convenience, it can only be exercised when it is necessary for
justice or else there would be denial of justice. What ‘justice’ means is very subjective and no
clear cut definition of it is possible. It is to be seen on a case-to-case basis.

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In civil procedure, the jurisdiction of civil court is at the root of any suit. It is the primary
criterion on the basis of which the civil court can adjudicate upon a dispute. Any decree given
by a court which is lacking jurisdiction in a nullity and the same may be impeached at any
stage.

Civil Procedure Code, 1908 (the CPC) has not defined anywhere the jurisdiction of Civil
Courts. Rather, Section 15 specifies that “Every suit shall be instituted in the Court of
the lowest grade competent to try it”. It only specifies that amongst the competent courts, the
suit must be instituted at the court of the lowest grade Given this general principle of the
CPC, there are some cases where multiple civil courts may have jurisdiction to entertain and
adjudicate upon suit. Section 16 and 19 confers jurisdiction to multiple courts based on the
following criteria:

1. The place where the cause of action has arisen;

2. The place where the defendant resides, or carries on business or works for gain.

3. Again, if there are multiple defendants having different place of residences, or work
places, then with the leave of Court, suit may be instituted at any of such places.

In such case, the choice is available to the plaintiff to file a suit as per his choice. As a
general rule a plaintiff as arbiter litis or dominus litis has a right to choose his own forum
where a suit can be filed in more than one court. This right of the plaintiff cannot be taken
away normally.1 However, in some circumstances this right is 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. Sections 22 to 25 enact the law as regards transfer and
withdrawal of suits, appeals and other proceedings from one court to another. Sections 22 and
23 enable a defendant to apply for transfer any suit while sections 24 and 25 empower certain
courts to transfer any suit, appeal or other proceedings either on application made by any
party or by the court suo motu. The provisions of Sections 22-25 are exhaustive.2

1
Indian Overseas Bank v Chemical Construction Corp,(1979) 4 S.C.C 358.
2
Durgesh Sharma v Jayshree, (2008) 9 S.C.C 648.

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OBJECT AND NATURE OF PROVISIONS FOR THE TRASFER OF
SUIT

The object of every procedural law is to facilitate justice. A fair and an impartial trial is sine
qua non and an 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, a court. 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.3

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 of any suit, appeal or other proceeding at any stage either on an application
of any party or by a court of its own motion. In Durgesh Sharma v Jayshree4 it was held that
this power does not authorise a High Court to transfer any suit , appeal or other proceedings
from a court subordinate to that High Court to a court not subordinate to that High Court. It
was further opined by the judges that Section 25 confers very wide, extensive and plenary
powers on the Supreme Court to transfer any suit, appeal or other proceedings from one High
Court to another High Court or from one civil court in one State to other civil court in another
state.

In Rajagopala Pandarathar & Ors. V. Tirupathia Pillai & Anr5., it was held that Section 24
provides for power for transfer of a case from one court to another. It provides for transfer of
suit, appeal or other proceedings. Other proceedings include the execution proceedings.
Transfer of the proceedings by the High Court before itself on the ground that a party is
abusing the process of the Court or otherwise resorting to the process that other party may not
succeed, stands fully fortified by the judgment of the Hon’ble Supreme Court in Abdul
Rahman V. Prasony Bai & Anr.6 In Nahar Industrial Enterprises Ltd. v. Hong Kong and
Shanghai Banking Corporation7, , the apex court held: “Only civil suits are subject matter of
inter State transfer from one civil court to another civil court. Sub-section (5) of section 24 of
CPC provides that a suit or proceeding may be transferred from a Court which has no

3
Pushpa Devi v Jai Narain, (1992) 2 S.C.C 676.
4
Durgesh Sharma v Jayshree ,(2008) 9 S.C.C 648.
5
Rajagopala Pandarathar & Ors. V. Tirupathia Pillai & Anr ,A.I.R 1926 Mad. 421.
6
Abdul Rahman V. Prasony Bai & Anr.,A.I.R 2003 S.C 718.
7
Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation, (2009) 8 S.C.C 646.

8
jurisdiction to try it. The power to transfer one case from one court to another or from one
tribunal to another is to be exercised if exceptional situation arises and not otherwise. Rules
of procedures are intended to provide justice and not to defeat it.”

It was held in N.K. Nair & Anr. V. Kavanugalaanattu Radhika8 that Section 25 empowers the
Supreme Court to transfer the case from a competent Court in one State to the Court of
another State. The transfer should not be made when the proceedings in a case has reached
the final stage or are likely to be concluded.

APPLICATION FOR TRANSFER OF SUIT

Section 22 and 23 deal with the right of a defendant to apply for the transfer of suit. Where
the plaintiff has a 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.9 Under section 24 and 25
application can be filed by any party to the suit appeal or other proceedings.10

Two conditions need to be fulfilled before the transfer is ordered under Section 22, 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 the application or the court.

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 the other parties (if any), shall determine in which of the several
Courts having jurisdiction the suit shall proceed.

Broadway, J. in Gulab Chand v. Sher Singh11 and Tek Chand, J. in Edulji Dinshaw v.
Dhanpat Mal Bhagwan Das12, have expressed the view that the giving of a notice prior to the

8
N.K. Nair & Anr. V. Kavanugalaanattu Radhika, (2005) 13 S.C.C 439.
9
Section 22 and 23.
10
Lakshmi Narain v ADJ,A.I.R 1964 S.C 489.
11
Gulab Chand v. Sher Singh, A.I.R 1916 Lah 95.

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flint of the application under sub-section (3) of Section 23 of the Code is mandatory. A
division bench of the Allahabad High Court in Mt. Basanti Devi v. Mt. Sahgdra13. has that
although the section contemplates the giving of a notice prior to the application and such a
notice should as a rule be given, yet there is no indication that the failure to give such notice
is fatal to the application. The learned Judges have also expressed the view that the failure at
an earlier stage to give notice was cured by the issue of a notice on the application itself
because the object seems to be that an order for transfer should not be passed without hearing
the other side and that the other side should not in any way be prejudiced. A single judge
bench of Delhi Court in Majari Sen v Nirupama Sen14 endorsed the view of Allahabad High
Court by opining that one of the principles of justice is that no order should be made-at the
back of the party who is likely to be affected by the order. If an application is made under
sub-section (3) of Section 23 of the Code without giving prior notice but notice of the
application itself is given by the Court and no order is made by the Court to the prejudice of
the other party without notice, justice would have been done. Prior notice does not appear to
serve much of a purpose except to say that no order should be made without hearing the
parties, who are likely to be affected by it. The requirement of prior notice cannot, therefore,
be mandatory because a provision would be mandatory only if non-compliance with it results
in a specified consequence.

COURT IN WHICH APPLICATION SHOULD LIE

The Civil Procedure Code specifies the court where the application should lie:

1. Section 23(1) says where the several courts having jurisdiction are subordinate to the
same appellate court, an application for the transfer can be made to that appellate
court.
2. Section 23(2) says where such courts are subordinate to the same High Court an
application can be made to that High Court
3. Section 23 (3) says where such courts are subordinate to different High Courts, an
application can be made to the High Court within the local limits of whose
jurisdiction, the court in which the suit is instituted is situated. In Durgesh Sharma v
Jayshree15 it was held that if two courts are subordinate to different High Courts, one
High Court has no power, jurisdiction or authority to transfer a case pending in any

12
Edulji Dinshaw v. Dhanpat Mal Bhagwan Das ,A.I.R 1928 Lah 183.
13
Mt. Basanti Devi v. Mt. Sahgdra ,A.I.R 1935 All 979.
14
Majari Sen v Nirupama Sen ,A.I.R 1975 Delhi 42.
15
(2008)9 S.C.C 648.

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 court subordinate to that High Court to a Court subordinate to other High Court. It is
only the Supreme Court which may order the transfer.

4. The Supreme Court may transfer any suit, appeal or other proceeding from one High
Court, or from one Civil Court in the State to another Civil Court in any other State.

Sub clause 5 was added to the section 24 after the Code of Civil Procedure (Amendment)
Act, 1976, which says “A suit or proceeding may be transferred under this section from a
Court which has no jurisdiction to try it.”

Sections 22, 24 and 25 deal with power of transfer, Section 23 merely provides forum and
specifies the Court in which an application for transfer may be made. Section 23 is not a
substantive provision vesting power in a particular Court to order transfer.

GROUNDS

The general rule is that the plaintiff, as obiter litis or dominus litis, has a right to choose any
forum, the law allows him. It is a substantive right but of course subject to control by statute
like Sections 22 to 23 of C.P.C.16 It is always necessary to the Court to find out from the
allegations made in transfer application, whether any reasonable ground is made out for
transfer of the case.17

In Kulwinder Kaur @Kulwinder Gurcharan Singh v Kandi Friends Education Trust and
others18 it was held that the discretionary power of transfer of cases cannot be imprisoned
within a straight-jacket of any cast-iron formula unanimously applicable to all situations and
the power to transfer a case must be exercised with due care, caution and circumspection. The
grounds for transfer as laid down by the courts are balance of convenience or inconvenience
to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of
trial having regard to the nature of evidence on the points involved in the suit; issues raised
by the parties; reasonable apprehension in the mind of the litigant that he might not get justice

16
Civil Procedure Code,1908.
17
Smt. Sudha Sharma vs. Ram Naresh Jaiswal, A.I.R 1990 M.P 320.
18
Kulwinder Kaur @Kulwinder Gurcharan Singh v Kandi Friends Education Trust and others ,(2008) 9 S.C.C
359.

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in the court in which the suit is pending; important questions of law involved or a
considerable section of public interested in the litigation; interest of justice demanding for
transfer of suit, appeal or other proceeding, etc. It was further held that these grounds are,
illustrative in nature and not exhaustive. If on the above or other relevant considerations, the
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 the duty of the court to make
such order.

In Maneka Sanjay Gandhi v. Rani Jekhmalani19, the Court said:

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
mini grievances. Something more substantial, more compelling, more imperilling, 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.

Again in the context of power of Supreme Court with regard to transfer of cases under
Section 25 C.P.C. in Subramaniam Swamy Vs. Ramakrishna Hegde20, , the Court said:
"The question of expediency would depend on the facts and circumstances of each case but
the paramount consideration for the exercise of power must be to meet the ends of justice. It
is true that if more than one court has jurisdiction under the Code to try the suit, the plaintiff
as dominus litis has a right to choose the Court and the defendant cannot demand that the suit
be tried in any particular court convenient to him. The mere convenience of the parties or any
one of them 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 of justice. Cases are not unknown where a party
seeking justice chooses a forum most inconvenient to the adversary with a view to depriving
that party of a fair trial. The Parliament has therefore, invested this Court with the discretion
to transfer the case from one Court to another if that is considered expedient to meet the ends
of justice. Words of wide amplitude- for the ends of justice-have been advisedly used to leave
the matter to the discretion of the apex court as it is not possible to conceive of all situations
requiring or justifying the exercise of power. But the paramount consideration must be to see
that justice according to law is done; if for achieving that objective the transfer of the case is

19
Maneka Sanjay Gandhi Vs. Rani Jekhmalani ,(1979) Cri.L.J. 458 (S.C).
20
Subramaniam Swamy Vs. Ramakrishna Hegde, (1990) 1 S.C.C 4.

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imperative, there should be no hesitation to transfer the case even if it is likely to cause some
inconvenience to the plaintiff.

In Indian Overseas Bank v Chemical Construction Co.21 it was held that the mere balance of
convenience in favour of proceedings in another court albeit a material consideration, may
not always be a true criterion justifying the transfer. The power of transfer of a civil
proceeding to another Court conferred under the new Section 25 C.P.C. on the Supreme
Court is far wider and so is the amplitude of the expression "expedient in the interests of
justice" which furnishes a general guideline for the exercise of the power. The paramount
consideration is the interest of justice and when the ends of justice demand transfer of a case,
the court should not hesitate to act.

Sometimes transfer of suit has also been justified on the ground of convenience to the parties
or witnesses etc. but in such cases the paramount factor which should be considered is the
convenience of both parties. An exception, however, to some extent, has been made in
matrimonial cases where convenience of wife has been given a dominating factor than
husband, particularly when she has none to escort her or of quite young age or where she has
financial constrained etc.In Anjali Ashok Sadhwani v Ashok Kishinchand Sadhwani,22 and
Fatema vs. Jafri Syed Husain v Syed Parvez Jafferi23 the apex court held that the in the
matrimonial cases the convenience of wife and the fact that there was no one in her family to
escort her to take long journey was held to be the good ground for the transfer of the case.

A ground for transfer of a civil suit from one court to another is that where two suits
raising common questions of facts and law between parties, common to both the suits
are pending in two different Courts, it is generally in the interests of justice to transfer
one of these suits to the other forum to be tried by the same court with consequent avoidance
of multiplicity in the trial of the same issues and the risk of conflicting decisions
thereon.

In Ranbir Yadav v State of Bihar24 it was held that irrespective of the Code, a High Court has
power to transfer a suit, appeal or other proceedings on the administrative grounds.

21
Supra 1 at 359.
22
Anjali Ashok Sadhwani v Ashok Kishinchand Sadhwani, A.I.R 2009 S.C 1374.
23
Fatema v. Jafri Syed Husain v Syed Parvez Jafferi A.I.R 2009 S.C 1773.
24
Ranbir Yadav v State of Bihar ,(1995) 4 S.C.C 392.

13
In Kali Charan v Sudha Rani25 various cases were lying in the different courts and the
Supreme Court , therefore held it would be in the interest of justice to transfer the case.

25
Kali Charan v Sudha Rani ,(2011) 15 SCC 199.

14
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 initiating 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
curtailed. But it cannot be said the plaintiff making wrong 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 litus. Exercise of discretion being dependent on
facts and circumstances of each case ,precedents would not be of much assistance.26

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 (ii) the
power and duty of the court to assure fair trial and proper dispensation of justice.

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 to one or the 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.27

26
Supra note 1 at 359.
27
Supra note 18 at 659.

15
APPEAL AND REVISION
An order of transfer neither affects the merits of the controversy between the parties to the
suit, nor terminates or disposes of the suit on any ground and, therefore, an order of transfer is
not appealable.28 Similarly, an order of a Single Judge of a High Court transferring a suit a
“judgment” within the meaning of Letters Patent and, therefore, no letters patent appeal lies
against such order.29 An order of transfer of a suit, appeal or other proceeding can be said to
be a “case decided” within the meaning of Section 115 of the code and hence is open to
revision if the conditions laid down in that section are satisfied. But if an order of transfer is
passed without issuing a notice to the other side, it is tainted with material irregularity and
can be set aside in revision.30 Similarly, if a court refuses to transfer a suit, appeal or other
proceeding on an erroneous view of law that it has no such power, there is a failure to
exercise jurisdiction vested in the court and the High Court will interfere in revision.31

ILLUSTRATIVE CASES
TRANSFER ALLOWED:
In Union Of India & Anr v Shiromani Gurdwara Prabandhak32in view of the nature of
allegations regarding some of the respondents who have been added there were was
likelihood of strong feeling to be roused in some section of community. In such an
atmosphere to meet the ends of justice it was considered desirable to have the case transferred
to a calmer and quieter atmosphere.. The suit was also considered unusual and sensitive
and. therefore, the Supreme Court transferred the case outside the State of Punjab to meet
the ends of justice. In this case it was also held that if the transfer prevents the abuse of
power of court it should be allowed.

In the case of Jagatguru Shankracharya v Ramji Tripathi33 the reasonable apprehension in

the mind of the litigant the he would not get justice in the court in which the suit was pending
held to be valid ground for the transfer of suit. In Indian Overseas Bank v Chemical
Construction Co34. the ground for transfer of a civil suit from one court to another is that
where two suits raising common questions of facts and law between parties, common to

28
Asrumati Debi v Rupendra Deb, A.I.R 1953 S.C 198,200-01
29
Ibid
30
Dasarath Prasad v Bajinath Prasad, A.I.R 1960 Pat 285.
31
Manak Lal v Dr. Prem Chand, A.I.R 1957 S.C 425.
32
Union Of India & Anr v Shiromani Gurdwara Prabandhak (1986) 3 S.C.C 600.
33
Jagatguru Shankracharya v Ramji Tripathi ,AIR 1979 M.P 50.
34
(1979) 4 S.C.C 358.

16
both the suits are pending in two different courts, it is generally in the interests of justice
to transfer one of these suits to the other forum to be tried by the same court with consequent
avoidance of multiplicity in the trial of the same issues and the risk of conflicting
decisions thereon. In Arvee Industries v Ratan Lal35 it was held that where the balance of
convenience requires e.g. where the property is situated or their witnesses require, was held
to be valid ground for transfer. The fact that considerable section of the public is interested in
the litigation was held to be the valid ground for transfer.

TRANSFER NOT ALLOWED

In Subramaniam Swami v Ramkrishna Hegde36 it was held that the mere fact the opposite
party is a man of influence in the locality cannot be held as the valid ground for transfer. In
Manohar Lal Chopra v Seth Harilal37 it was held that the mere fact that the court is situated
at the long distance from the residence of the applicant cannot be the valid ground for transfer
of the case. The Delhi High Court in the case of Mula Naramma v Mula Rengamma38 held
that fact that judge has decided the same point in a previous case cannot be made a ground for
the transfer of suit.in this case it was further held that prejudice of a judge against a party’s
pleader not likely to affect the party cannot be made ground for the transfer of suit. In
Subramaniam Swamy v Ramkrishna Hegde39 it was held that the mere convenience of the
parties or any one of them may not be enough for the exercise of power by the court to
transfer cases. Allegation of apprehension against fair trial without furnishing particulars was
not held to be valid ground for transfer by the Supreme Court.40

35
Arvee Industries v Ratan Lal, (1977) 4 S.C.C 363.
36
(1990) 1 S.C.C 4.
37
Manohar Lal Chopra v Seth Harilal ,AIR 1962 S.C 527.
38
Mula Naramma v Mula Rengamma ,AIR 1976 Del 184.
39
Subramaniam Swamy v Ramkrishna Hegde (1990) 1 S.C.C 4.
40
Maneka Sanjay Gandhi v Rani Jethmalani,(1979) 4 S.C.C 167.

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CONCLUSION
The plaintiff has the sole right to decide the forum in which he wants to file the suit but this
choice of the plaintiff can be taken away by the courts in the interest of justice. The power of
transfer must be exercised with due care, caution and circumspection and in the interest of
justice. The court while deciding the question should consider two conflicting interests: (a).
as a dominus litis the right of the plaintiff to choose his own forum; and (b). the power and
duty of the court to assure fair trial and proper dispensation of justice. The paramount
consideration would be dispensation of justice. If the ends of justice demand transfer of a
case, the court should not hesitate to act.

Although discretionary power of transfer cannot be imprisoned within a strait jacket of any
cast -iron formula unanimously applicable to all situations, it cannot be denied that power of
transfer of case should be exercised with due care and caution.41

41
Kulwinder kaur v Kandi Friends Education Trust, (2008) 3 S.C.C 363.

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REFERENCES
ACT

 Civil Procedure Code,1908

BOOKS

 Civil Procedure Code by C.S Thakker (Takawani)

WEB SOURCES

 SCC online
 Manupatra
 Westlaw

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