The Code of Civil Procedure,1908

TRANSFER OF CASES
SECTION 22, 23, 24 & 25
-NISHA

K AT I YAR

15IP61043
LL.B. (IP HONORS)

Transfer of Cases
Section 22, 23, 24 & 25

CASE 1:
DURGESH SHARMA V. JAYSHREE,
AIR (2008) 9 SCC 648

Facts of the case

Durgesh Sharma
Jayshree Sharma
(Appellant - Husband)
(Respondent - Wife)
May 16, 1989 - marriage was solemnized at Malegaon Nasik, Maharashtra thereafter
parties lived in Ujjain, MP.
In 1991,wife left matrimonial home and gave birth to twins on December 25, 1991.
In 1997, wife came to Ujjain, but after 3-4 months again left matrimonial home and
deserted husband permanently.
Sept 22, 2004 - Husband sends notice to wife to join him, to which she replied after few
days with false allegations.
Oct 27, 2004 - Husband Filed divorce case u/s 13 of HMA in Family Court at Ujjain on
the grounds of desertion and cruelty as both parties have lastly lived together at Ujjain.
Wife filed written statement denying allegations against her. She contended that Ujjain
Court had no Jurisdiction and made prayer to dismiss case with costs.
March 23, 2005 - Wife also filed RCR u/S 9 of HMA in the court of Civil Judge, Senior
Division, Malegaon. Thereafter she filed an application u/s 23 of CPC in MP HC (Indore
bench) for transfer of divorce case filed by husband in Family court Ujjain to a court of
competent jurisdiction at Malegaon, Nasik, Maharashtra.
Jan 25, 2007 - HC allowed the application and transferred the suit.
HC order is challenged in present appeal. Matter was placed for final hearing before SC

On appeal before Supreme Court

Appellant counsel contended
that a High Court does not
possess that power and the
High Court of MP could not
have transferred a case to a
Court subordinate to Bombay
HC. Further, even on merits,
no ground for transfer of case
was made out by the
respondent-wife.

Respondent Counsel submitted

that the order passed by the
High Court is in consonance
with law. If the High Court is
satisfied that a proper case has
been made out for transfer of a
case from a Court subordinate
to the said High Court to a
Court subordinate to different
High Court, in exercise of
power u/s 23 (3) of CPC, such
order can be made.

Regarding relevant provisions of the CPC

General rule - the plaintiff is arbiter litis or dominus litis
Section 22 provides that where a suit may be instituted in one of two
or more Courts and is instituted in one of such Courts by plaintiff, a
defendant may apply to have the suit transferred to another court.
Section 23 provides the forum where such application may be made.
Section 24 contains general power of transfer of any suit, appeal or
other proceeding at any stage on the application of a party or by a
Court suo motu.
Section 25 empowers SC to transfer any suit, appeal or other
proceeding, at any stage, from a High Court or other Civil Court in
one State to a High Court or other Civil Court of another State.

Section 25 amendment as per Amendment Act, 1976

Before amendment
25. Power of State Government to

transfer suits--(1) Where any party

to a suit, appeal or other proceeding
pending in a High Court presided
over by a single Judge objects to its
being heard by him and the Judge is
satisfied that there are reasonable
grounds for the objection, he shall
make a report to the GovernorGeneral in Council, who may, by
notification in the Official Gazette,
transfer such suit, appeal or
proceeding to any other High
Court;

After amendment
25. Power of Supreme Court to

transfer suits, etc (1) On the

application of a party, and after
notice to the parties, and after
hearing such of them as desire to be
heard, the Supreme Court may, at
any stage, if satisfied that an order
under this section is expedient for
the ends of justice, direct that any
suit, appeal or other proceeding be
transferred from a High Court or
other Civil Court in one State to a
High Court or other Civil Court in
any other State.

Statement of objects and reasons by Law Commission on Section

25
Section 25 of the Code empowers the State Government to transfer suits etc. in

certain circumstances from the High Court exercising jurisdiction in the State to
another High Court. This section is very narrow in scope as it provides only for the
transfer of suit, appeal or other proceeding pending in a High Court presided over
by a Single Judge.
Besides, the State Government, does not seem to be an appropriate agency for
exercising the power of transfer.
Section 25 is, therefore, being substituted by a new section which provides for the
transfer to the Supreme Court the existing power vested with the State Government
and to confer on the Supreme Court such wide powers of transfer as it has in
criminal cases under Section 406 of the Code of Criminal Procedure, 1973.
Further, the new section covers transfer of cases from or to the original side of a
High Court to or from any other Civil Court. The new section is thus wider in
scope than Section 406 of the Code of Criminal Procedure, 1973.

Power conferred on High Court and Supreme Court

for transfer of cases
23. To what Court application lies.
(1) Where the several Courts having
jurisdiction are subordinate to the same
Appellate Court, an 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 High Courts, the application
shall be made the High Court within
the local limits of whose jurisdiction
the Court in which the suit is brought is
situate.

25. Power of Supreme Court to

transfer suits, etc
(1) On the application of a party,
and after notice to the parties, and
after hearing such of them as
desire to be heard, the Supreme
Court may, at any stage, if
satisfied that an order under this
section is expedient for the ends of
justice, direct that any suit, appeal
or other proceeding be transferred
from a High Court or other Civil
Court in one State to a High Court
or other Civil Court in any other
State.

Interpretation of Sec. 23 (3) in juxtaposition of Sec. 25 of CPC

In State Bank of India v. M/s Sakow Industries Faridabad (Pvt.) Ltd., AIR 1976 P&H 321,

the HC ordered transfer of suit from Ballabhgarh Court to Alipore Court. Court held that
such order could be passed in exercise of power under Sec. 23(3) read with Sec. 151 of
CPC. Court held that under Sec.151 of the CPC every court has the inherent jurisdiction to
pass any order to meet the ends of justice.
The Amendment Act, 1976, effective from January 1977, has widened the scope of Section
25.
In Priyavari Mehta v. Priyanath Mehta, AIR 1980 Bom 337, The Court negated the
contention of Respondent that the amended Section 25 of the Code superseded the power of
the High Court under sub-section (3) of Section 23 of the Code. According to the Court, in
spite of amendment in Section 25 of the Code by Amendment Act, 1976, the Legislature did
not think it fit to repeal sub-section (3) of Section 23 of the Code. The Court, therefore,
must interpret both the provisions harmoniously.
In Guda Vijayalakshmi v. Guda Sekhara Sastry, AIR (1981) 2 SCC 646 and Mamta Gupta v.
Mukund Kumar Gupta, AIR 2000 AP 394, it was held that SC had a wider power of transfer
u/s 25, but at the same time it cannot be construed that Section 23(3) became redundant.

CONCLUSION
Sections 22, 24 and 25 deal with power of transfer, whereas Section 23 merely

provides forum and specifies the Court in which an application for transfer may
be made. Section 23 is not a substantive provision vesting power in a particular
Court to order transfer.
With regard to territorial jurisdiction is concerned, HC is limited to territory
within which it exercises jurisdiction and not beyond it. Whereas SC jurisdiction
is not circumscribed by any territorial limitation and it extends over any person
or authority within the territory of India.
Court held that a High Court has no power, authority or jurisdiction to
transfer a case, appeal or other proceeding pending in a Court subordinate
to it to any Court subordinate to another High Court in purported exercise
of power u/S 23 (3) of the Code and it is only Supreme Court which can
exercise the said authority under Section 25 of the Code.
Accordingly the order passed by the High Court deserves to be set aside and is
accordingly set aside.

Transfer of Cases
Section 25

CASE 2:
DR. SUBRAMANIAM SWAMY V.
RAMAKRISHNA HEGDE,
AIR (1990) 1 SCC 4

Rama Krishna Hegde (Ptf) v. Dr. Subramaniam Swamy (Def)

Suit No. 945 of 1989 pending in the Bombay High Court

1. Defamatory statements made by Def at a press

conference in New Delhi.

2. Def further issued written statements containing
allegations against Ptf.
3. Ptf filed defamation suit in Bombay High Court for
damages for injury caused to his reputation.
4. Def accepts publication of allegations as complained.

Original Suit Defamation suit,

Bombay HC

Present suit Transfer of case,

Supreme Court

Rama Krishna Hegde

(Plaintiff)
v.
Dr. Subramaniam Swamy
(Defandant)

Dr. Subramaniam Swamy

(Petitioner)
v.
Ramakrishna Hegde
(Respondent)

Dr. Subramaniam Swamy (Pet) v. Ramakrishna Hegde (Res)

petition u/s 25 of CPC

Petitioner (Def) filed a petition to transfer the suit from

Bombay HC => any civil court Karnataka, preferably
City Civil Court, Bangalore
Alleged acts were committed by Respondent (Ptf) during his tenure as CM

of Karnataka.
Evidence and events that can be used in defence are easily accessible in
Bangalore.
Suit can be expeditiously disposed of in Civil Court Karnataka as Bombay
HC calendars are clogged because of heavy backlog.
Discovery and inspection of documents, evidence will be convenient, as
they are available in Bangalore.
Many witnesses are residents of Karnataka.
People of Karnataka are vitally interested in the outcome of this litigation.

Respondent argument
Suit in the Bombay HC is delayed as the petitioner has

failed to file his written statement to the suit.

If written statement is filed, a summons for directions can be
taken out and a request to expedite the suit can be made to
the HC.
Merely the ground that Bombay HC cannot expeditiously
disposed of doesnot necessitate transfer of suit.
As plaintiff being dominus litis is entitled to choose forum,
no sufficient ground has been made out in the petition to
request transfer of case.

Section 25 of CPC
Confers wide power of transfer on the SC.
SC can at any stage to transfer any suit, appeal or other

proceeding from a High Court or other Civil Court in one

State to a High Court or other Civil Court of another
State.
If it is satisfied that such an order is expedient for the
ends of justice.

Judicial Review by the Court

The question of expediency would depend on the facts and

circumstances of each case but the paramount consideration

for the exercise of power must be to meet the ends of justice.
The mere convenience of the parties or any one of them may
not be enough for the exercise of power but it must also be
shown that trial in the chosen forum will result in denial of
justice.
If the ends of justice so demand, the case may be transferred
under this provision notwithstanding the right of dominus
litis to choose the forum and considerations of plaintiff's
convenience, etc., cannot eclipse the requirement of justice.

Conclusion
Allegations complained of are mainly concerned of the land situated in

Bangalore and other parts of Karnataka.

The oral as well as the documentary evidence regarding the alleged
scandalous deals would be available in Karnataka, more particularly in
Bangalore.
Witnesses will require to travel to Bombay which would incur substantial
expense.
For establishing his defence, Petitioner would require number of evidence
and witnesses to discharge the same.
The ends of justice, therefore, demand that the suit be transferred
from the Bombay HC to the City Civil Court, Bangalore, where most
of the documentary evidence and the majority of the witnesses are
available.