Transfer of Suits in CPC
Transfer of suits in CPC has been provided under sections 22 to 25 of the Code of Civil Procedure Code, 1908. Transfer of case from one district court to another is the main object.
Section 24 gives power to District Court and High Court to hear and decide such transfer applications, whereas, section 25 gives the power of Supreme Court to transfer suits and decide such transfer applications. Therefore, the application for transfer of suits in cpc under section 24 is laid down in District Court or High Court and under section 25 is laid down in Supreme Court. Transfer of suit from one court to another court is the main objective of these provisions under CPC.
Objectives of Transfer of Suits
The main object behind the transfer of suits cpc is to avoid the multiplicity of findings over the same subject matter. When the party files a suit against the defendant and the defendant also files a suit against the plaintiff in another court, then to avoid the different findings over the same matter by the different court, the transfer of cases under cpc sections 24 and 25 can be filed before the District Court or High Court and Supreme Court respectively.
The other object of the transfer of civil suit is to deliver justice or for deciding the matters which address public sentiments. Therefore, the transfer of cases under these provisions of the CPC helps to maintain the faith of the judiciary amongst the general public.
Who can apply?
According to section 22 of the Civil Procedure Code, 1908, it is provided that, “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.
As per this section, the plaintiff has the right to file a case in any competent court and when the defendant gets the knowledge of the suit filed by the plaintiff, then the defendant may apply for the transfer of the case. The court has the power to hear and decide any objections raised by the plaintiff in relation to such a transfer suit and after clearance of the objection raised by the plaintiff the court will transfer the case to any one of the courts that is competent to deal with that case.
Notice to All Parties
Section 22 of CPC dealt with that it is the mandatory provision to mention the time and then give notice of the application for transfer of the suit under sections 24 or 25 of CPC. Notice should be given to all the parties pleading in the suit, whether it is the plaintiff or defendant. Under the provisions of section 22 notice of the application for transfer of case must be given to each and every part of the suit and to the court before which it is made. But it has been held that the defect could be cured by notice on the application itself.
To Which Court Application Lies
Section 23 of CPC deals with the application for the transfer of civil suits.
- Where there are several courts having the jurisdiction subordinate to the same appellate court then the application for transfer of civil suit under section 22, shall be made to the Appellate Court. For example, if the suit is pending in the Civil Judge Junior Division and another suit is pending in Civil Judge Senior Division, then the application under section 22 shall be presented before the District Judge.
- Where such courts are subordinates to different appellate courts but to the same high court then the application shall be made to the High Court. For example, if the suit is pending in one district and another suit is pending in another district then the application under section 22 shall be presented before the High Court.
- Where such Courts are subordinate to different courts within the local limits of whose jurisdiction the court in which the suit is brought is situated.
Grounds for Transfer of Suit
Section 23 of the CPC dealt with the various grounds for the transfer of civil suits from one court to another competent court. These grounds are;
- To meet the conclusion of justice-it is almost the duty of the judiciary to give away justice and justice should be delivered in such a way so that a good message can be reached, society it should be delivered in such a manner so that the faith of the court is maintained. The court should have an extra moral obligation to keep the trust and confidence alive.
- The desirability of having the only adjudication of a particular controversy.
- When there involves a substantial question of law.
- To prevent abuse of proceedings of the court.
- To avoid delay and unnecessary expenditure.
- Where the judge is biased or interested in one part only.
- Where the same question of fact and law come into the picture in two different cases.
- When in a similar cause two people filed a case but in different courts.
- To avoid multiplicity of proceedings or conflicting decisions.
Conditions for Transfer of Suit
There are some conditions laid down where the application for transfer of civil suits can be made. These conditions are;
- The suit or other civil proceeding must have been pending in another competent court to try it.
- The transferring court must be subordinate to the court making the transfer order under sections 24 or 25.
- The transferee court should be competent to try or dispose of the suit, where competency does not only include pecuniary but also territorial competency.
- The applicant should present the application for transfer of the suit as early as possible opportunity and in all cases where issues are settled at or before such settlement.
General Powers and Duties of Court
Under section 24 of CPC, the general powers and duties of the court relating to the transfer and withdrawal of civil suits have been provided.
- On receiving the application of any of the parties and giving notice to parties and even without receiving the application the High Court or District Court at any stage whether trial, proceeding or hearing.
- Transfer any civil case whether pending or decided or at the trial stage to the subordinate court capable of dealing with that matter.
- The District Court or the High Court also has the power to withdraw the case whether pending for proceeding or decided for trial purposes and can transfer it to any court which is subordinate to it but capable of dealing with that matter.
- Where the suit or proceeding is transferred the court can start the proceeding from the point where it is transferred or can start from the beginning.
- For the purpose of this section, courts of additional and assistant judges shall be subordinate to the district court.
- It is the duty of the court when there is an application for transfer of a case, the court must act judicially, guided by a sense of justice, on considering objectivity and not subjectivity. And it should also be in mind that it will not get justice at the hands of the presiding officer.
Section 24 of the Code of Civil Procedure states that jurisdiction is used in the event of a transfer of a suit or in the case of appeal or revision. The power of transfer can even be exercised by the District Judge or High Court suo-motu even if no such application for the same has been filed before the court. The section does not mention any base by which the case can be transferred from one court to another but there are definite principles and grounds which have to be observed. The law and the facts of the case should also be borne into account during the whole process of transfer.
Effect of transfer
Order of transfer becomes effective as soon as made. Its effectiveness will not depend upon its conveyance to the subordinate court.
If the transfer application is dismissed or if the court feels that such transfer of suit is not made for a good reason, or to harras to the other parties then the court may ask to give compensation to the opposition parties but the cost should not exceed rs. 2000/-.
Section 96 of CPC defines that an appeal shall lie in the court from every decree passed by any competent court in the exercise of the original jurisdiction and the court is having authority to hear appeals from the decision and judgment of such courts.
No appeal is allowed when the court passed a decree with the consent of the parties.
No appeal shall lie if the value does not exceed Rs. 10000 in the original suit except on an appeal in the question of law. A party challenging the compromise can file an appeal under sections 96(1) and 96(3) of CPC. A decree can be challenged on the ground of fraud, misrepresentation, etc.
An appeal may lie from the original decree if it is ex-parte.
Section 115 of CPC, it is stated that the high court may call for revision for any case decided by the lower court if such lower court;
- Have exercised their power beyond the statute.
- Did not exercise the jurisdiction which has been stated in the statute.
- When a subordinate court exercises jurisdiction illegally.
Aarvee Industries v. Ratan Lal
In the case of Aarvee Industries v. Ratan Lal, it was said that in cases of transfer of suits extreme care, and caution to serve the ends of justice has to be considered. While deciding these cases, the court must balance between these as follows;
- Assuring fair trial, providing justice
- The right of the plaintiff to choose his/her own forum
Mst. Basanti Devi v. Mst. Sahodra
In this case Mst. Basanti Devi v. Mst. Sahodra, Section 22 of the CPC, was construed, it has been laid down that in an application for transfer under Section22 of the CPC the convenience of the parties alone should not be considered, but the totality of circumstances should indicate that a suit should proceed in a Court different from the Court chosen by the plaintiff. Also, the mere convenience of the party is not enough for the transfer of a case from one Court to another.
Durgesh Sharma vs Jayshree
In the case of Durgesh Sharma v. Jayshree, Where it was held by the Supreme Court that in case of transfer of cases from one state to other, the High courts have no such power. The Supreme court only can take cognizance of such issues & decide accordingly.
By this judgement Section, 23(3) was made redundant though it is explicitly mentioned in the Statute. When compared to other Sections like 22, 24 & 25; Section 23 is only procedural whereas the others are substantive also. So Section 23 has to be always read along with Sections 22, 24 & 25.
M.V. Ganesh Prasad v/s M.L. Vasudev Murthy
In M.V. Ganesh Prasad v. M.L. Vasudevamurthy, it was held by the court that the angst of bias has to be very reasonable, proper & bonafide in the mind of the petitioner who is seeking the transfer of suit. If not then the application made for the transfer of suit may get rejected.
It is very essential here that the court has to examine the reasons & arguments that are put forward in such transfer application by the parties. All the circumstances have to be considered thoroughly in case of transfer of suits
Cases where a transfer is allowed
- The reasonable threat in the mind of the party is that he/she will not get justice when the case is pending in court.
- Balance of convenience.
- When two people filed a suit against each other in different courts on the same cause of action.
- Where there are suits pending in different courts but a similar question of facts and law arises.
- Where the judge is biased and making discrimination.
Cases where a transfer is not allowed
- Where there is a mere balance of convenience for the applicant.
- Where judges give their opinion in advance about the judgment of the case.
- Where there are mere facts of an erroneous order.
- Where a claim is that an opposite party is an influential man in the locality.
- Where a claim that the court is situated at a long distance from the residence of the applicant.
Frequently Asked Questions
Which section deals with the transfer of suits in CPC?
Transfer of suits in CPC has been provided under sections 22 to 25 of the Code of Civil Procedure Code, 1908. Section 24 gives power to District Court and High Court to hear and decide such transfer applications, whereas, section 25 gives power to Supreme Court to hear and decide such transfer applications.
Can a civil suit be transferred?
Such a suit therefore must be held to be legally pending in a court from which it can be transferred to another court under Section 24 of the Code of Civil Procedure, 9. Section 24 of the Code of Civil Procedure is general in its terms, and the power of the superior court is untrammelled by any conditions.
What are the grounds for the transfer of cases?
1. The desirability of having the only adjudication of a particular controversy.
2. When there involves a substantial question of law.
3. To prevent abuse of proceedings of the court.
4. To avoid delay and unnecessary expenditure.
5. Where the judge is biased or interested in one part only.
6. Where the same question of fact and law come into the picture in two different cases.
7. When in a similar cause two people filed a case but in different courts.
8. To avoid multiplicity of proceedings or conflicting decisions.
Transfer of suits in CPC must be exercised with due care and in the interest of justice. The court should decide the conflicting interest. Paramount consideration is justice and if the ends of justice demand the transfer of the case the court shall not hesitate. But there are some limitations where transfer of cases can be done or instances under which it can be done or cannot be done can inconvenience and complexity. Relevant factors have to be considered for the transfer of cases.
- The Code of Civil Procedure, 1908 (C-21) Bare Act with Short Notes
- Code of Civil Procedure with Overview Flowchart Latest Amendments – CPC Bare Act 2021 Edition
- Code of civil procedure C. K. Takwani – 2021
- Civil Procedure With Limitation Act, 1963 – 8/Edition
- Universal’s The Code Of Civil Procedure, 1908 (2020 Edition)
- Code of Civil Procedure & Indian Evidence Act Chart ( CPC chart ) – Laminated Wall Chart