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Transfer Petition: No Longer A Conundrum

The relief sought in a 'Transfer Petition' is essentially transfer of case either from one subordinate court to another subordinate court within a particular state or from one state to another, i.e., interstate transfer.

Sections under Civil Procedure Code, 1908 (hereinafter referred to as the "Code":
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 for transfer 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. Section 25 confers very wide, plenary, and extensive powers on the Supreme Court to transfer any suit, appeal, or other proceeding from one High Court to another High Court or from one civil court in one state to another civil court in another state.[1]

Transfer under Civil Procedure Code
Scope of Transfer under the Code
It is pertinent to note that the adjudicating court to which a transfer application / petition is made, must be 'competent' which essentially means that the court should possess the requisite territorial jurisdiction.

1977 Amendment
Prior to enactment of 1977 Amendment, there was ambiguity due to the lack of specific provisions dealing with the High Court's jurisdiction over interstate transfer. As a result, a Legal Commission was established to submit proposals and suggest changes to Parliament as necessary. Subsequently, as per the Judiciary Committee's 150th report, the amendments were carried out, introducing Section 25 in the Code to confer powers of interstate transfers on the Supreme Court, needless to mention, subject to satisfaction of the court on merits.

Object and reasons
Due to the ambiguity in the Code, various High Courts of the country had ruled differently while adjudicating interstate transfer petitions. The amended Section 25 was to clarify whether the High Court has the power to authorize interstate transfer civil cases.

Jurisprudence
Pre 1977
Prior to the 1977 amendment, the High Court interpreted the Code according to the facts and circumstances each case while adjudicating transfer petitions. Some High Courts held that since Section 24 is comprehensive in nature the High Courts have the power to exercise jurisdiction to allow interstate transfer, whereas certain High Courts have taken a contrary stand.

1977 to 2008
Though post the 1977 amendment to the code, conferring powers on Supreme Court to transfer any suit, appeal, or proceedings from one state to another, yet the High Courts continued to assume power and exercise jurisdiction allowing the transfer of suit, appeal, or proceedings from a subordinate court in its territorial jurisdiction to a subordinate court in other state under Article 226 and 227 of the Indian Constitution.

Case laws prior to 2008 chronologically
The Bombay High Court in Priyavari Mehta v. Priyanathi Mehta [2] (1979) was of the view that although the 1977 amendment introduced Section 25 thereby conferring the Supreme Court with the power to permit interstate transfer it did not repeal Section 23(3) of the Code. Section 23 of the Code enables a defendant to apply for transfer of a suit.

The Supreme Court in Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry (1981),[3] held that mere introduction of Section 25 does not make Section 23(3) of the Code redundant.

The Andhra Pradesh High Court in Mamta Gupta v. Mukund Kumar (2000) [4], the petitioner wife filed a transfer petition, seeking for transfer of the dispute from Hyderabad to Indore. The Andhra Pradesh High Court held that even though Section 25 confers powers on Supreme Court to transfer cases from one state to another, powers of the High Court conferred by the legislature under Sec 21A (3) of the Hindu Marriage Act[5], to transfer such cases are not seized nor have been declared as ineffective post the introduction of Section 25 to the code by the 1977 amendment. Therefore, the High Court allowed the transfer of case from Hyderabad to Indore.

Post 2008
The Supreme Court in the case of Durgesh Sharma v. Jayshree (2008) [6], held that the power of the High Court did not possess the powers / jurisdiction to entertain/ allow interstate transfers.

Analysis of the Durgesh Sharma Judgement
Facts in brief:
The wife had filed an appeal to transfer the proceedings instituted by the husband at Ujjain, Madhya Pradesh to Nashik, Maharashtra, which was allowed by the Madhya Pradesh High Court, which was under challenge before the Hon'ble Apex Court.

Issue:
  • Whether the High Court has the power, authority and jurisdiction to transfer a pending suit, appeal, other proceedings from one court subordinate to it to another court subordinate to another High Court.

Ratio Decidendi
The Supreme Court thus held that S23 of Code is merely procedural in nature and not substantive, i.e., it provides for the mode, method, manner, in approaching the court for making an application. Furthermore, it does not empower the High Court to allow/entertain interstate transfers, and that that the High Court holds no power, authority, jurisdiction, to transfer a case, appeal or other proceeding pending in a court subordinate to it to a subordinate court in another High Court under S23(3) of The Code, and it is only this court (Supreme Court) that has the power to exercise such intra-state transfer of cases.

Views and conclusions:
Transferring a civil case from one state to another, especially a civil matrimonial dispute is sensitive in nature. Any such transfer must be entertained with the utmost accuracy and after considering all the facts and circumstances of the case. Therefore, we believe that the power to approve interstate transfers need only be conferred upon the Apex Court only as the High Courts lack the territorial jurisdiction to entertain transfer petitions praying for interstate transfers as rightly held in the Durgesh Sharma judgment.

End-Notes:
  1. Justice CK Thakker (Takwani), Mrs MC Thakkar, Civil Procedure 702, (Eastern Book Company, Lucknow, 2007
  2. 1979 SCC OnLine Bom 140
  3. (1981) 2 SCC 646
  4. 2000 (2) A.P.L.J. 435 (HC)
  5. Section 21A - Power to transfer petitions in certain cases
  6. 2008 SCC OnLine SC 1464
Written By:
  1. Adv Tanmay Karmarkar, Bombay High Court
  2. Falgu Mukati (Final Year Law Student at Mumbai University)
Also Read:
  1. Transfer of Petition in India
  2. Transfer Petition in Supreme Court of India-All about
  3. Withdrawal and Transfer of Suits


Award Winning Article Is Written By: Ms.Falgu Mukati
Awarded certificate of Excellence
Authentication No: SP42356754160-28-0922

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