Transfer Case

 

Transfer of Cases

Statute

1. Criminal
1. 177 CrPC
2. 406 CrPC
3. 407 CrPC
2. Civil
1. Section 23 of CPC
2. Section 25 of CPC
3. Section 24 of CPC
4. Section 151 of CPC
5. Section 21A of Hindu Marriage Act

Section 151 CPC - inherent jurisdiction to pass any order to meet the ends of Justice

1. Inherent power may be exercised EX DEBITO JUSTITIAE  ( as a matter of Right )
2. in those cases, where there is NO Express provision in the Code.
3. Inherent power cannot be exercised in contravention or in conflict of or ignoring express and specific powers of law.

Application of 151 CPC in Transfer Petition

1. Law relating to transfer is contained in Section 22-25 CPC 
2. and they are exhaustive in nature
3. 151 CPC has no application - Contention cannot be taken 

Section 22 of CPC

1. Where a suit may be instituted in one of two or more courts and is instituted in one of such courts, a defendant may apply to have the suit transferred to another court.

Section 23 of CPC - Forum where such application may be made

1. Where the several courts have  Jurisdiction are subordinate to the same appellate court, the application under Section 22 shall be made to the appellate court
2. Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court
3. Where such Courts are subordinate to different Hight Courts, the application shall be made to High Court within the local limits of whose Jurisdiction the court in which the suit is brought is situated.

Section 24 of CPC - General power of transfer of any suit, appeal or other proceeding at any stage of the application of a party or by a court suo motu 

1. Application by any of the parties
2. After Notice to the parties
3. After hearing such of them as desired to be heard or its Own motion without such notice HC/ District Court may at any Stage
1. Transfer any suit, appeal or other proceeding pending in any court subordinate to it  and competent to try or dispose of the same
2. Withdraw any suit , appeal or other proceeding pending in any court subordinate to it 
3. Try or dispose of the same
4. Transfer the same for trail or disposeal to any court subordinate to it and competent to try or dispose of the same
5. Retransfer the same for trail or disposal to the court which it was withdrawn.

Section 25 - Very Wide scope - empowers the SC to transfer any suit, appeal or other proceedinf from one HC to another HC or from one Civil Court in a state to other civil court in another state throughout the country - Plenary and extensive powers are conferred on SC

    Plenary - wide ranging, limitless for all pratical purposes

                 - power granted in absolute terms, no review or limitation on exercise of the power

Section 177 CrPC - Ordinary place of inquiry and trail - Chapter XIII

Every offense shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. 

General Rule 

1. Having regard to the size of the state, the distance of courts from the place of crime and difficulties of transport in the interior, it would seem expedient and desirable that the equiry or trial in respect of any offense should ordinarily take place in that court which is nearest to the place of crime.
2. if Trail is conducted in immediate vicinity of crime, witness will be readily available and it could be convenient for both the prosecution and the defense. 
3. If the place of trial is highly inconvenient to the accused person and causes various impediments in preparation of defence, the trail at such a place cannot be considered as fair trail
4. the plaintiff as arbiter litis or dominus litis ( Person who is affected by decision of the suit) has RIGHT to choose his/her own forum where there is more than one Court in which suit may be instituted.
5. Defendant CANNOT insist that instead of Court A, plaintiff should file in Court B
6. But the RIGHT of the plaintiff to choose a forum is NOT arbitrary, absolute or uncontrolled and in appropriate cases - Superior Court transfer a case pending to other court.
7. Discritionary Power of transfer of cases cannot be imprisoned withing a Strait-Jacket of any cast iron formula unamimously applicable to all situations
8. Power of transfer must be exercised with DUE Care, caution & Circumspection.
9. Favor of Transfer
1. Convenience of wife is preferred over Husband
2. Wife not independent income and no one to accompany her
10. Un favourable to transfer
1. in matrimonial case provide transport & Stay for wife and one helper 
2. Failure to appear during Transfer proceedings - which will be considered as no-objection
3. transfer to different place than the place seeked by wife 
1. a Netural place
4. Only convenience of one party NOT good ground for transfer
5. apprehension of threat of life is not a sufficient ground to transfer a case without lodging a complaint or substantiating the said ground

Reason for Transfer

1. The mere factum of expenses / difficulties SHOULD NOT justify transfer of case from one Court to another, UNLESS courts finds that expenses and difficulties in the Court, where it is pending is SO GREATE as to lead injustice to applicant 
2. Meet Ends of Justice and prevent the abuse of process of court 
1. Wide and lot of discretion left with Courts
3. To avoid Delay and unnecessary expenditure
4. To avoid multiplicity of proceedings
5. There should be substantial and grave injustice
6. When it involves substantial Question of law
7. The part having approached the court FIRST however has the RIGHT to apply before the court in which the subsequent suit is instituted for STAY of latter proceedings as Stipulated in Section 10 of CPC.
8. Estranged homemaker having NO INDEPENDENT Income to bring a matrimonial action instituted by the husband to a court within whose Jurisdiction she has taken shelter in her parental home
9. Very difficult for Respondent wife to trave a distance of 400km all alone and hence discretion was exercised - SC u/s A 136  may not interfere with said order
10. Judge is biased and making discrimination.
1. Serious matter, indirectly causes doubt on the integrity and competence of Presiding officer
2. Court has onerous duty where such ground has been substantiated with reasonable certainty or not
3. Mere suspicion will not get justice would not Justify transfer, there must be REASONABLE apprehension to that effect. 
4. Legitimate Judicial Order cannot be made foundation for a transfer of case.
5. Special circumstances - grounds taken, court must find reason exist to transfer 
11. Assurance of Fair Trail is First imperative of the dispensation of justice ( Meneka Gandhi Vs Rani Jekhmali ( 1979) Cri LJ 458 (SC) 
1. Central Criterion
1. NOT the hypersensitivity or relative convenience of a party or easy availability of legal service or like mini grievance
2. Something more substanial, more compelling, more imperiling from point of view of public Justice and attendant eviromnet

Ingredients to be Established for Transfer

1. Grave difficulty / prejudice in prosecuting or defending the case in a forum otherwise having power to adjudicate the case.
2. Grounds
1. Age of wife, distance b/w place of residence where matrimonial proceedings are filed as well as absence of people who would escort her - Considered reasonable justification for directing transfer of case more suitable to her

What are Not good reasons for Transfer

1. Delay in the court
2. Foreign National
3. Overlapping of issues  & Facts in both issues - NOT Ground
1. There is NO Bar in CPC in institution of 2 different suits in 2 courts by same set of parties on same set of facts.
2. The part having approached the court FIRST however has the RIGHT to apply before the court in which the subsequent suit is instituted for STAY of latter proceedings as Stipulated in Section 10 of CPC.
4. Functional Convenience of one the parties in commercial litigation cannot determine exercise of Jurisdiction of the court u/s 25 CrPC
5. Long distance to Travel
6. Claim that the opposite party is an influential man in the locality

Objection of Transfer

1. Existence of property, relative in place of case, Travel by on and off
2. Each day 10-15 transfer petitions are on Board of each court on admission day
1. Lineancy misued by women
3. Medical condition 
4. Each petition now required to be decided on merit.
5. Counter blast to the petitioner case.
6. Bias is rather fanciful
7. Distance  between two places not so far that it will cause inconvenience to wife
8. Requirement is availability of Positive and cogent evidence.
9. Close examination - failure of justice / only camouflage.
10. Not merely say-so of a party have a demoralizing effect on trail courts and unless a very strong case.
11. Number of hearing had already taken place - not proper to transfer the proceedings 
12. Forum Shopping clause 
13. Results in delayed Justice
14. Compensation to the opposite party < Rs2000, when court feels transfer is not made for good reason.
15. She can always apply for exception from appearance and her  application will be undoubtedly be considered on it merit.

Factors to consider in Transfer Petition

1. u/s 25 CPC 
1. is it expedient in the ends of Justice or not
2. Court has to consider the prayer for transfer with an element of equity.

What to when Transfer application fails

1. Section 96 CPC - appeal shall lie in the court from every decree passed by any court in exercise of Original Jurisdiction and court is having authority to hear appeals from decisions of such courts.
2. NO Appeal allowed when order passed with CONSENT of parties.
3. No appeal if value <Rs10000/- EXCEPT on Question of Law
4. Decree can be Challenged on ground of Fraud , misrepresentation.

Power of Hight Court Transfer Case

1. Section 23(3) of CPC HC can transfer case to any other court which is not under its jurisdiction
2. Inherent power of HC u/s 151 CPC
3. Section 23(3) and Section 25 CPC have to be constructed harmoniously
4. Depending upon social, economic status , Option vested with party to either approach HC u/s 23(3) CPC or SC 25 CPC
5. Question
1. Every Court has its own local / territorial limits beyond which it cannot exercise the jurisdiction.
2. If 25 CPC & 23(3) CPC are taken in conflict, it would make 23(3) Nugatory, redundant anf futile. 
3. No court of law will interpret one provision of law which will make another provision superfluous or ineffective. 
4. 23(3) would result in allowing inroad and encroachment on the power of this court
5. Section 23 must be read subject to 25 of the code
6. Durgesh Sharma Vs Jayshee - Civil Appeal 5857 / 2008 - in SLP - HC CANNOT Transfer to courts out of its jurisdiction - Exclusive Domain of SC

Leading Cases

1. Kumaon Mandal Vikas Nigam Ltd Vs Girja Shankar Pant
1. if allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence.
2. Multtani Vs State of Karnataka
1. Courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. 
3. Ashish Chandha Vs Asha Kumari
1. Transfers ordered merely on the say-so of a party have a "demoralizing effect" on trail courts and unless a very strong case based on concrete material is made out, such transfers should not be ordered.
4. Chitivalsa Jute Mills 
5. Priyavari Mehta Vs Priyanth mehta AIR 1980 Bom 337
1. A file 13 HMA in Dehradun, B filed 9 HMA in Nagpur
2. A files 23(3) CPC in HC Bombay for transfer of suit institute by B in Nagpur
3. Court considering provision of 22-25 CPC and 21A of HMA transfered the Case
6. Mamta Gupta Vs Mukund Kumar Gupta,  AIR 2000 AP 394
1. Wide power to transfer, but at same time it cannot constured that Section 23(3) became redudant.
2. Section 25 confers the power on SC to transfer case, it cannot be constructed that Section 23 gets deleted
3. Section 23(3) and Section 25 CPC have to be constructed harmoniously
7. Guda Vijayalakshmi Vs Guda Sekhara Sastry ( 1981) 2 SCC 646
1. A filed maintenace suite against B, in AP, B filed Divorce against A in Rajastan
2. A filed transfer u/s Section 25 CPC in SC to transfer divorce suit
8. P. Sadayandi Nadara Vs Venugopal Chetty AIR 1960 Kerala 91
9. Satyasri Fertilisers Vs EID parry Ltd AIR 2003 AP 312
10. Sudha Sharma Vs Ram Naresh Jaiswal AIR 1990 MP 320
1. Necessary to court to find out the allegations made in transfer application whether ANY REASONABLE Ground is made out for Transfer of the case
11. Matrimonial matters - convenience of wife particularly when she has no one in her family to escort her to undertake long journey - good ground to transfer
1. Anjali Ashok Sadhwani Vs Ashok Kishichand Sadwani AIR 2009 SC 1374
2. Fatema Vs Jafri Sayed Hussain AIR 2009 SC 1773
3. Sumita Singh Vs Kumar Sanjay (2000 KHC 1889 )
4. Sailaja VV Vs Koteswara Rao ( 2003 KHC 3105)
5. Rajini Kishor Pardeshi Vs Kishore Babulal Pradeshi ( 2005 12 SCC 237 )
12. 2 person filed suit against each other in different courts on same cause of action, desirable that suits should be tried in by same court
1. G.M Rajulu Vs Rao Bahadur 1938 2 MLJ 249
2. Mt Zabida Kahtoon Vs Md Hayat Khan AIR 1933 Labore 635
3. Majari Sen Vs Nirupam sen AIR 1975 Delhi 42
13. Avoid multiplicity of litigation
1. Purna Chandar mahanty Vs samatna Radhaprasana das, AIR 1953 Orissa 46
14. Judge bias
1. Rajkot Cancer Society Vs Muncipal Corporation Rajkot, AIR 1988 Gujarat 63
2. Paspala Fakrudding Vs Jamia Masque AIR 2003 AP 448
3. Nandini Chatterjee Vs Arup Hari Chatterjee AIR 2001 calcutta 26
15. Neeraja Gupta Vs Dr. Rajesh Gupta , 2002 1 HLR 273
1. Court allowed trassfer applicaiton filed by wife but for Jind to Mansa instead of Jind to Abohar on ground of convenience of wife has to be looked into
16. Boby Rani alis Babita Vs Suresh Kumar 2011 (1) HLR 284
1. 70% handicapped wife - ground of convinence of wife is seen
17. Veena Vs Vinay Kumar 1992 (1) HLR 380
1. transfer u/s 24 CPC - pleaded Only on ground of convenience failed to make out a case for transfer of proceedings 
2. Convineninece of one party to the litigation i.e wife alone Cannot  be accepted as Rule. Balanced view should be taken , some premium in favour of wife.
18. Premlata Singh Vs Rita Singh (2005) 12 SCC 277
1. Court had not transfered but directed the husband to pay fortravelling  lodging and boarding of the wife and person accompanying her 
19. Gana Saraswathi Vs H. Raghu Prasad
1. Principle laid out in Premalata Singh Vs Rita Singh re-iterated
20. Usha George V Koshy George (2000) 10 SCC 95
1. Number of hearing had already taken plance , it is not proper to transfer proceeding to any other court.
21. Anindita Das Vs Srijit Das (2006) 9 SCC 197
1. Leninancy to ladies shown by court in Transfer matter was being often misuesd and taken advantage of by women
2. Each petition should be considered based on merit.
3. Rejected the transfer application 
4. Grandparents were available to look after the 6y old 
22. Neelam Bhatia Vs Satbir Singh Bhatia (2004) 13 SCC 436
1. Case had progressed to the Stage of trail 
2. Disallowed wives transfer
3. Husband to bear travel and incidental expenses of wife & Companion
23. Gayatri Mohapatra Vs Ashit Kumar Panda (2003) 11 SCC 731
1. Wife being director in company, traveled from place to place 
2. Could not be permitted to state that she was incapable of travel 
24. Puneet Dalmia Vs Central Bureau of Investigation (2020) 12 SCC 695
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Source 

1. https://blog.ipleaders.in/transfer-of-cases/