DUTY OF THE COURT

"when transfer is made on an application, Court must act judicially guided

by its sense of justice, on objective consideration and not subjectively.
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on_24_of_Code_of_Civil_Procedure_1908

TRANSFER OF CASES HAD NOT TAKEN PLACE

(FROM HIGH COURT & SUBORDINATE COURTS TO THAT HIGH
COURT TO SUPREME COURT)

 LALITA AWASTHI Vs. VIDYA DEVI & Ors., 24.09.2013, DHC

- Learned counsel for the petitioner states that the said decisions
referred by the other side are distinguishable in view of the
facts of the present case. He states that in those cases the
matters were at the initial stage. However, in the present case,
the matter was at the stage of final argument which is the
undisputed fact between the parties. The said argument of the
learned counsel for the petitioner has not been denied by the
learned counsel for the respondents. The petitioner‟s counsel
also states that each case depends upon its own circumstances.
Therefore, the facts in the present matter are materially
different and a grave hardship would be caused if the order
passed by the learned trial court would be sustained. He
further states that it is undisputed fact that when the
application under Order VII, Rule 10A was decided, the
petitioner‟s application under Section 24 CPC for transfer of the
suit from the Civil Court to the Court of District Judge was
pending which was not allowed as the application under Order
VII, Rule 10A CPC by that time had already been decided. Had
the application under Section 24 CPC been decided prior to the
decision of application under Order VII, Rule 10A then under
the said circumstances, the matter ought to have been tried
from the same stage i.e. final arguments. (Para 10)

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 - The petitioner has assailed the order dated 28 th March, 2012
whereby the application filed by the petitioner for treating the
suit, being Suit No.29/2011 in continuation of the old suit and
hearing the said suit from the stage of final arguments and
adjudicate upon the remaining issues framed in Suit
No.770/2007 was dismissed. (Para 1)
- The purpose of the law is to expedite the conclusion of the
proceedings and not to scuttle the same and in the interest of
justice, the case be tried from the final stage. If the impugned
order is applied the suit proceedings would be retrogative
rather than progressive. There must be harmonious and
constructive interpretation of provisions of procedural laws
and it is necessary for the Court to adopt an approach that
would satisfy the twin objective. The impugned order would
cause serious injustice to the petitioner if the case is tried from
inception. The learned trial court has not considered the present
case from the said angle as mentioned above. Therefore, the
impugned order dated 28th March, 2012 passed by the
Additional District Judge, East District, Karkardooma Courts,
Delhi, in Suit No.29/2011 is set aside. (Para 16)

IMP TO NOTE (PARA 9)

In Vogel Media International GMBH and Anr. v. Jasu Shah & Ors., 115
(2004) DLT 679, after relying the judgment passed by their lordship of
Supreme Court had come to the conclusion that :
(i) The suit which is instituted on the representation of the plaint in the
competent court after its return by the Court which lacked the jurisdiction
is a freshly instituted suit within the meaning of the provisions of the Code
of Civil Procedure and shall be governed by the provision of Order VII
Rule 10 and 10A. Such a suit will be tried denove in accordance with the
provisions of the Code.
(ii) Any proceedings taken up and orders made in the suit during its
pendency before the court which lacked necessary jurisdiction come to an

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end, as soon as, the order for the return of the plaint is made by the said
court.
(iii) If the plaintiff on the return of the suit, consider it necessary that any
interim protection granted to him under the orders of the court which
lacked jurisdiction should be continued, he must approach the competent
court with a fresh application for grant of such a relief and it will be for the
said court to consider the application on its merits.
(iv) The return of the plaint for want of jurisdiction whether pecuniary or
territorial cannot be equated to the transfer of the suit or proceedings either
by virtue of Section 24, CPC or owning, to any other statutory change.

1. Kalpana Devi Prakash Thakar Vs Dev PrakashThakar, 1996

- 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.

2. Shiv Kumari Devendra Ojha Vs Ramesh Shitla Prasad Ojha, Case

number: T.P.(C) No.-000281-000281 / 1996
- 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.

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 - 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.

3. Central Coat Fields v. State of M.P, AIR 1986 MP 33 a

- 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 petition 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.

4. State of Assam vs Dr. Brojen Gogoi, Criminal Appeal No. 1003 of 1997
- 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

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 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."

5. Bihar State Food and Supplies Corporation v. Godrej Soaps (P)

Ltd. and Sons, 1996
- 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.

Imp to NOTE :
- Initially it was transferred from Patna High Court to Bombay
High Court so that the pending suit in Patna and already instituted

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 suit could be tried together or on the basis of clubbing two petitions
together.
- But, the purpose of trying two suits together never met its end
(the end was to arrive on the conclusion and award the
decision/judgement which would be applicable / binding on both of
the cases), it is because the suit already instituted was decided and
was consequently appealed.
- Therefore, Suit, which was initially instituted in Patna HC and
then transferred to Bombay HC, was petitioned to be re-transferred
to Patna HC because of failure of meeting its ends. However, this
time the re-transfer was disallowed and rejected. This was done in
the light to avoid the conflicting decisions.

TRANSFER OF CASES TAKEN PLACE

(FROM HIGH COURT & SUBORDINATE COURTS TO THAT HIGH
COURT TO SUPREME COURT)

1. Union of India v. Dr. M. Ismail Faruquil, AIR 1995 SC 605

- The Supreme Court received a reference under Article 143 of the
constitution from the President with regard to the Babri Masjid
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.

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 Reason for petition for transfer of case from High Court to Supreme Court in
the above case:
1. Supreme Court received a reference under Article 143 of the
constitution from the President,
2. In view of the fact that there was a Presidential reference pending
in the Supreme Court,
3. A writ petition was also being filed before the supreme court
challenging the constitutional validity of the Ordinance and Act.
Therefore, the High Court itself was bound to withdraw all the writ petitions
which were pending in the High Court of Allahabad.

2. Kiran Ramanlal Jani Vs Gulam kadar, Criminal Appeal No. 620 of 1993
- 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.

3. Dr. Subramaniam Swami v. Ramakrishna Hedge , 1990 AIR 113

- 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

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 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.

ADDITIONAL INFORMATION
 The high court in exercise of the power under art. 227 of the
constitution and sec 24 of CPC,1908 has the power to suo moto
transfer the matter from one court to another. Silver Granites V.
Murugan, AIR 1995 Mad 217.

 Under sec 24, the District Judge can transfer the case at any stage, and
this is so, notwithstanding that there was defect in the initial
presentation. Vishwanath Gupta V. Parbati Devi, AIR 1982 All 106.

 In State Bank of India v. M/s. Sakow Industries Faridabad (Pvt) Ltd.,

New Delhi,[14], the learned single Judge of Punjab and Haryana
High Court held that the High Court could examine the powers of
transfer underSection23(3) to meet the ends of justice and to prevent
abuse of the process of the Court.

 Article 139A, The Constitution of India

Transfer of certain cases
(1) 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 an application made
by the Attorney General of India or by a party to any such case that
such questions are substantial questions of general importance, the
Supreme Court may withdraw the case or cases pending before the
High Court or the High Courts and dispose of all the cases itself:
Provided that the Supreme Court may after determining the said
questions of law return any case so withdrawn together with a copy
of its judgment on such questions to the High Court from which the
case has been withdrawn, and the High Court shall on receipt

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 thereof, proceed to dispose of the case in conformity with such
judgment.

(2) The Supreme Court may, if it deems it expedient so to do for the

ends of justice, transfer any case, or other proceedings pending
before any High Court to any other High Court appeal

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