Today we have come a long way from the times when ‘an eye for an eye’ was the norm. We now have established institutions to take care of any conflict or dispute that arises in our society. However, our awareness and education about the due process and procedure of these Courts have not grown proportionately and a major chunk of our population is unaware of their rights and procedures of Courts. This article will try to throw some light on the process behind the transfer of civil suits in India.
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.[i] It is important that the request for transfer of suit is made at the earliest possible instance and after giving notice to the plaintiff.[ii]The 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. [iii]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.[iv] 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.[v] 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.[vi] Mere presumptions or possible apprehension cannot and should not be the basis 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[vii]. 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.[viii] 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.[ix]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.[x]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.[xi]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.
To summarize the relationship between the sections discussed above it may be said that Section 22 can be invoked only by the defendants whereas Section 24 gives either party to a suit the right to get the suit transferred but this transfer sought must be within the state. To get the case transferred from one state to another, one has to approach the Supreme Court and such a transfer is allowed only for very compelling reasons. The ends of justice, fair trial and principles of natural justice are kept in mind while disposing of such applications for transfer of suits.
Procedural law is the backbone of the legal system; it not only facilitates but also ensures that justice is done. The lack of proper and fair procedures can often lead to injustice and chaos. However, we must not let procedures come in the way of substantive laws and justice and one way of doing that is by educating ourselves about the procedures that govern our court system. “A journey of a thousand miles begins with a singe step”- I hope this article will help serve as that single step and help you if you ever find yourself in a predicament when you want to get a lawsuit transferred to a more preferable location.
[i] Shri Seetha Mahalakshmi Rice and groundnut Mill v. Rajesh Trading Code, AIR 1983Bom486;
[ii] Shiv Kumari Devendra Ojha v. Ramojar Shitla Prasad Ojha, AIR 1997 SC 1036
[iii] Jagatguru Shri Shankracharaya Jyotish v. Ramji Tripathi, AIR 1979 M.P. 50
[iv] Mona Aresh Goel v. Aresh Satya Goel, AIR 2000 SC 3512(1)
[v] K. Meenambigai v. Poovanandan, MANU/TN/1193/2008
[vi] Nandini Chatterjee v. Arup Hari Chatterjee, AIR 2001 Cal 26
[vii] Rajkot Cancer Society v. Municipal Corporation, Rajkot, AIR 1988 Guj 63
[viii] Pitamber v. Shantilata, AIR 1987 Ori 45.
[xi] Dr. Subramaniam Swamy v. Ramakrishna Hegde, 1989 SCR Supl. (1) 469