Durgesh Sharma vs Jayshree

2 A short but interesting question of

law has been raised before this Court in the

present appeal as to the power, authority and

jurisdiction to transfer suits/appeals/other

proceedings by a High Court from one Court

subordinate to it to another Court subordinate

to another High Court.

Factual Matrix 2

3. To appreciate the controversy, it is

appropriate to set out facts of the case. The

appellant herein Durgesh Sharma is the husband

of the respondent Smt. Jayshree Sharma.

Marriage of the parties was solemnized at

Malegaon, District Nasik in the State of

Maharashtra on May 16, 1989. It is not in

dispute that after the marriage, both the

parties lived in Ujjain in the State of Madhya

Pradesh.

4. It is the case of the husband that the

wife is quarrelsome. She used to raise disputes

with the husband and his family members on

petty matters. She also threatened the husband

that in case she would be kept at Ujjain

against her wishes, she would consume poison.

It is also the allegation of the appellant-

husband that respondent-wife left matrimonial

home in 1991. She thereafter stayed with her

parents and at parental home, gave birth to

twins - son Mayank and daughter Malvika on

December 25, 1991. She stayed at parental home 3

from 1991 to 1997. In 1997, the respondent-wife

came to Ujjain, but after about 3-4 months, she

again left matrimonial home and deserted the

husband permanently without proper or

sufficient reason, depriving the husband of

matrimonial enjoyment. The husband's prestige

has been badly affected by the conduct of the

wife.

5. The appellant-husband served a notice

through his advocate to the respondent-wife on

September 22, 2004 to join him to which a reply

was sent by the wife through her counsel on

October 08, 2004 wherein false allegations have

been levelled against the husband which clearly

went to show that she was not prepared to stay

with the husband.

6. Since the respondent-wife did not

return matrimonial home, the appellant-husband

instituted a petition under Section 13 of the

Hindu Marriage Act, 1955 (hereinafter referred

to as `the Act') on October 27, 2004 in the

Family Court at Ujjain which was registered as 4

HMA Petition No. 164A of 2004 for dissolution

of marriage on the grounds of (i) desertion;

and (ii) cruelty. The appellant husband has

stated in the petition that both the parties

lastly lived together at Ujjain as husband and

wife. Ujjain Court has, therefore, jurisdiction

to entertain, try and decide the petition.

7. The respondent-wife filed a written

statement controverting facts and denying

allegations levelled against her by the

appellant-husband. It was stated by her that

the appellant-husband had neither provided

maintenance to the respondent-wife nor to the

children. She denied that her conduct towards

her husband and his family members was not

proper and that she did not want to stay with

the family members of the husband. All such

allegations were made only with a view to

taking divorce from the respondent-wife. It was

denied that the wife deserted the husband

without sufficient cause.

5

8. She also refuted the allegation of

having deprived the husband of matrimonial

enjoyment and she had subjected him (husband)

to physical as well as mental cruelty and

torture. She denied that prestige of the

husband had been badly affected in the society

because of the conduct of the respondent-wife.

She stated that her husband took away all the

ornaments, jewellery and garments from her.

Though sufficient amount of dowry was given to

the husband, still he was insisting for

additional amount and other articles.

9. She also stated that she was staying

at Malegaon, District Nasik in Maharashtra

which was at a distance of about 400 kms. from

the city of Ujjain. Parents of the respondent-

wife were very old. Business of her father was

closed. Her brothers had been working

separately and were maintaining their own

families. She had, therefore, to travel at such

a long distance all alone which was very

difficult. She also contended that Ujjain 6

Court had no jurisdiction to entertain, try and

decide the petition. A prayer was, therefore,

made to dismiss HMA with costs.

10. Proceedings were also initiated by the

respondent-wife under Section 125 of the Code

of Criminal Procedure, 1973 at Malegaon for

maintenance as also under Section 24 of the

Hindu Marriage Act at Ujjain. We are, however,

not concerned with those proceedings in the

present case.

11. It may be stated that the respondent-

wife also filed an application under Section 9

of the Act for restitution of conjugal rights

in the Court of Civil Judge, Senior Division,

Malegaon being HMP No. 42 of 2005 on March 23,

2005.

12. Immediately thereafter, the wife

preferred an application under Section 23 of

the Code of Civil Procedure, 1908 (hereinafter

referred to as `the Code') in the High Court of

Madhya Pradesh (Indore Bench) for transfer of

Ujjain case instituted by the husband being HMA 7

Petition No. 164A of 2004 titled Durgesh

Sharma v. Smt. Jayshree Sharma pending in the

Family Court at Ujjain to a Court of competent

jurisdiction at Malegaon, District Nasik in the

State of Maharashtra.

High Court's Order

13. The High Court vide the impugned order

dated January 25, 2007 allowed the application

and transferred HMA 164A of 2004 pending the

Family Court, Ujjain to a competent Court at

Malegaon through District Judge, Nasik. It is

this order which is challenged in the present

appeal.

14. Notice was issued on May 14, 2007 and

further proceedings were stayed. Considering

the nature of litigation, the matter was

ordered to be placed for final hearing and that

is how the matter has been placed before us.

Submissions of counsel

15. We have heard the learned counsel for

the parties.

8

16. The learned counsel for the appellant

contended that the High Court was wholly wrong

in transferring a case pending in a Court

subordinate to the said High Court to a Court

subordinate to another High Court. A High Court

does not possess that power and as such, the

High Court of Madhya Pradesh could not have

transferred a case to a Court subordinate to

the High Court of Bombay. On that ground alone,

the order passed by the High Court deserves to

be set aside. It was also submitted that even

on merits, no ground for transfer of case was

made out by the respondent-wife.

17. The learned counsel for the

respondent, on the other hand, submitted that

the order passed by the High Court is in

consonance with law. It was urged that 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 9

exercise of power under sub-section (3) of

Section 23 of the Code such order can be made.

18. On the facts of the case, it would be

very difficult for the respondent-wife to

travel a distance of about 400 kms. all alone

and hence discretion was exercised by the High

Court. This Court, in the exercise of power

under Article 136 of the Constitution may not

interfere with the said order. It was,

therefore, submitted that the appeal deserves

to be dismissed.

Statutory provisions

19. Before we deal with rival contentions

and case-law on the point, it would be

appropriate if we notice the relevant

provisions of the Code.

20. Sections 22 to 25 enact law as regards

transfer and withdrawal of suits, appeals and

other proceedings from one Court to another

Court.

10

21. As a general rule, the plaintiff as

arbiter litis or dominus litis has a right to

choose his/her own forum where there is more

than one Court in which such suit may be

instituted. Normally, the defendant cannot

insist that instead of Court A, the plaintiff

should file a suit in Court B. But the right of

the plaintiff to choose a forum is not

arbitrary, absolute or uncontrolled and in

appropriate cases, a superior Court may

transfer a case pending in one Court to another

Court.

22. 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, a

defendant may apply to have the suit

transferred to another Court.

23. Section 23 provides the forum where

such application may be made. It is material to

the controversy in question and may be

reproduced;

11

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.

(emphasis supplied)

24. 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 (of its own

motion).

25. Section 24, as originally enacted in

the Code of 1908, read as under:

Section 24 - General power of transfer and withdrawal (1) On the application of any of the parties and after notice to the parties and after hearing such of them 12

as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage--

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under subsection (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section, Courts of Additional and Assistant 13

Judges shall be deemed to be subordinate to the District Court.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

26. There was a cleavage of opinion on the

question whether a case could be transferred

from a Court having no jurisdiction to try it.

Some High Courts have held that the language of

Section 24 was very wide and there was no

restriction on the High Court in exercising the

power of transfer merely because there was a

dispute regarding jurisdiction. Some other High

Courts, however, took a contrary view. The Law

Commission considered the question and

suggested amendment that a suit or proceeding

could be transferred under this section from a

Court which had no jurisdiction to try it.

27. In the Statement of Objects and

Reasons, it was stated;

14

Clause 10--There is a conflict of decisions with regard to the question whether Section 24 applies in relation to a transfer of a suit from a Court which has no jurisdiction to try it. The High Court of Andhra Pradesh has held that the language of Section 24 is very wide and there are no restrictions or impediments in the way of the High Court exercising the power of transfer merely because there is a dispute regarding jurisdiction. Some other High Courts have taken a contrary view. It is being clarified that a case may be transferred from a Court which has no jurisdiction to try it.

28. Parliament considered the recommendation

of the Law Commission and by the Code of Civil

Procedure (Amendment) Act, 1976, the section

was amended in the present form.1 1 Section 24 - General power of transfer and withdrawal--(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage--

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-

section (1), the Court which is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or 15

29. Sub-section (1) of Section 24 as now

stands, enables a High Court (or a District

Court) to transfer or withdraw any suit, appeal

or other proceeding pending before it or in any

Court subordinate to it. Such transfer can be

made by the Court at any stage of the

proceeding either on an application of a party

or suo motu.

30. Sub-section (2) empowers the Court

ordering transfer to issue directions for de

novo trial or to proceed with the suit, appeal

or other proceeding from the point at which it

was transferred or withdrawn.

31. Sub-section (3) defines `proceeding'

which includes an `execution proceeding'.

32. It declares that Courts of Additional

and Assistant Judges will be deemed to be

withdrawn (3) For the purposes of this section,-

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) "proceeding" includes a proceeding for the execution of a decree or order. (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.

16

subordinate to the District Court. Sub-section

(4), likewise, states that the expression

"Court of Small Causes" includes courts vested

with the powers of a Court of Small Causes.

33. Newly added sub-section (5) clarifies

that a suit or proceeding can be transferred

from a Court which has no jurisdiction to try

it.

34. Section 25, as originally enacted in

the Code of 1908, enabled the Governor-General

in Council to transfer, in certain

circumstances, a suit, appeal or other

proceeding from one High Court to another High

Court and read thus:

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 Governor-General in Council, who may, by notification in the Official Gazette, transfer such suit, appeal or proceeding to any other High Court;

17 (2) The law applicable to any suit, appeal or proceeding so transferred shall be the law which the Court in which the suit, appeal or proceeding was originally instituted ought to have applied to such case.

35. The section was amended by the

Government of India (Adaptation of Indian Laws)

Order, 1937. In sub-section (1), for the words

"Governor-General in Council" and "who", the

words "State Government" and "which" were

substituted.

36. Proviso to sub-section (1) was

inserted, which read as under;

Provided that no suit, appeal or proceeding shall be transferred to a High Court without the consent of the State Government of the State in which that High Court has its principal seat.

37. Plain reading of the above provision

makes it clear that scope and applicability of

Section 25 was very much limited. It enabled

the State Government (earlier Governor-General

in Council) to exercise power by effecting

transfer from one High Court to any other High 18

Court. The Law Commission considered the

provision as it originally enacted. It felt

that the State Government could not be said to

be an appropriate agency for exercising power

of transfer of suit, appeal or other proceeding

inasmuch as exercise of such power was a

`judicial function'. The Commission also noted

that an analogous provision was made in Section

406 of the Code of Criminal Procedure, 1973

which empowered the Supreme Court to transfer

cases and appeals from one Court to another

Court. It accordingly recommended that such

wide powers of transfer should not be retained

by the State Government but should be conferred

on the Supreme Court.

38. The recommendation was accepted. In

the Statement of Objects and Reasons, it was

stated:

Clause 12.--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 19

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.

39. Accordingly, Section 25 was

substituted in the present form which reads as

under:

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 20

transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.

Case law 21

40. Having considered statutory provisions,

this is now the time to refer to few decisions

on the point. The issue, in our opinion, can

conveniently be discussed in two stages;

(i) position prior to Code of Civil

Procedure (Amendment) Act, 1976, and

(ii) position after the Code of Civil

Procedure (Amendment) Act, 1976.

(i) Position prior to Amendment Act, 1976

41. The first case on the point appears to

be of Abu Bakar Abdul Rahiman & Co. v. Rambux,

AIR 1916 Nagpur 31 : 40 IC 393. The Court of

Judicial Commissioner, Nagpur was called upon

to consider the question whether a High Court

can transfer a case from a Court subordinate to

it to a Court subordinate to another High

Court. In that case, plaintiff R was carrying

on business at Khamgaon in West Berar.

Defendant A was a firm carrying on business in

Bombay. R filed a suit against A in the Court

of Subordinate Judge, Khamgaon for recovery of 22

Rs.5,000. An application was made by A to the

Court of the Judicial Commissioner, Nagpur to

transfer the suit to the High Court of Bombay

on its original side. The application was

purported to have been made under sub-section

(3) of Section 23 of the Code. The contention

of R was that the Court of Judicial

Commissioner, Nagpur could not transfer a case

to a Court subordinate to other High Court or

to the Original Side of the other High Court.

41. The Court considered the relevant

provisions (Sections 22 to 25) of the Code,

upheld the contention and ruled that the Court

of Judicial Commissioner, Nagpur could not

transfer a suit to a Court subordinate to other

High Court or to other High Court on its

Original Side.

42. Interpreting Section 23 of the Code,

the Court observed;

"Section 23 indicates under three heads the Court to which an application under Section 22 is to be made. (1) Where the several Courts are Subordinate to the same Appellate 23

Court, the application goes before the latter; (2) where the several Courts are subordinate to different Appellate Courts but to the same High Court, the application must go to the High Court; and (3) where the several Courts having jurisdiction over the suit are subordinate to different High Courts, the application must be made to the High Court having authority over the Court in which the suit has been instituted. In the first two of these cases, the Court empowered to decide under Section 22 also has jurisdiction to transfer under Section 24. But in the third case there is no power of transfer, and the question is whether Section 22, under which the application to be made is one for transfer, can be interpreted to mean that, in a case like the present, the Court to which the application is made, being powerless to transfer, may nevertheless direct that the plaint be returned to the plaintiff for presentation to some Court under another provincial jurisdiction".

(See also Topan Harji & Co. v. Singhai Dalchadn & Anr.; AIR 1924 Nag 152 : 75 IC 548).

43. In Ram Kumar v. Tula Ram Nathu Ram,

AIR 1920 Patna 138 (2) : 56 IC 920, the

question was whether the High Court of Patna

could transfer a suit from Purulia Court

subordinate to the High Court of Patna to a

Court subordinate to the High Court of Bombay. 24

44. Disagreeing with the view in Abu

Bakar, the Court held that such an order could

be passed. "An order of a High Court under

Section 22, that the suit shall proceed in a

Court subordinate to another High Court, will

be final and it will not be open to another

High Court to refuse the suit being tried in

the Court subordinate to it having jurisdiction

to try it".

45. In Dr. Rajnath v. L. Vidya Ram & Ors.,

AIR 1953 All 772, it was observed that Section

23 of the Code is not an independent section.

It is supplemental to Section 22. Section 24 is

a general provision empowering the High Court

or the District Court to transfer a case on the

motion of any other party or on its own motion.

Section 23 merely lays down the forum in which

applications under Section 22 are to be made.

46. In Firm Kanhaiyalal v. Zumerlal, AIR

1940 Nag 145 : 190 IC 439, the Court held that

a High Court can transfer a suit pending in a

Court subordinate to that High Court to a Court 25

subordinate to another High Court. The Court

held that Section 22 confers power on a Court

to transfer a suit pending in a subordinate

Court to a Court subordinate to another High

Court and Section 23 provides forum to which an

application may be made.

47. In that case, a suit was brought in a

Court subordinate to the High Court of Nagpur

and transfer was sought to a Court subordinate

to the High Court of Calcutta by filing an

application in the High Court of Nagpur. The

Court, overruling Abu Bakar held that such a

transfer could be effected.

48. In P. Salayandi Nadar & Ors. v.

Venugopala Chetty & Ors., AIR 1960 Ker 91 : ILR

1959 Ker 180, the High Court of Kerala held

that a High Court has power to transfer a suit

pending in a Court subordinate to it to a Court

subordinate to another High Court.

49. It may, however, be noted that the

Court stated that the competency of the 26

petition was not objected by the opposite

party.

50. In Western U.P. Electric Power Supply

Company Ltd. v. Hind Lamps Ltd., (1969) 2 SCWR

16 : 1969 UJ (SC) 54, A filed a suit in the

Court of Civil Judge at Mainpuri (U.P.) against

B for recovery of amount. B also filed a suit

against A in the Court of Senior Sub Judge,

Delhi for certain amount. B filed an

application in the High Court of Allahabad for

transfer of suit filed by A and pending in the

Court of Civil Judge at Mainpuri to the Court

of Sub-Judge at Delhi. The application was

allowed and the suit was transferred. A applied

for recalling of the order contending that

condition precedent to the application of

Sections 22 and 23 of the Code did not exist

and the High Court had no jurisdiction to

transfer the suit pending in Mainpuri Court to

the Court not subordinate thereto. The High

Court, however, rejected the prayer. A

approached this Court.

27

51. This Court, in the order, expressly

noted that at the hearing before the High

Court, the counsel for A conceded that the High

Court of Allahabad had jurisdiction to transfer

Mainpuri suit to the Court of Special Judge,

Delhi. Taking into account the above

concession before the High Court, this Court

refused to interfere with the order passed by

the High Court transferring a suit from a Court

subordinate to the High Court of Allahabad to a

Court subordinate to a different High Court

(High Court of Delhi).

52. In para 6, this Court stated;

"It may be conceded that some other parts of the evidence of the witnesses are inconsistent with the statement made by him. The learned Civil Judge accepted the testimony and made a report to the High Court that Hind Lamps Ltd. had a place of business in Delhi. At the hearing Counsel for the Appellant conceded that the High Court had jurisdiction to transfer the suit. It would be reasonable to infer that the Appellant admitted that because the respondent had a branch office in Delhi the High Court of Allahabad had jurisdiction to transfer the Mainpuri suit in exercise of the power under Section 22 read with Section 23(3) of 28

the Code of Civil procedure. Sitting in appeal with Special Leave, we would not be justified in ignoring the concession made at the bar by Counsel for the Appellant. We are unable to accept the contention that Counsel merely admitted that jurisdiction under Sections 22 and 23(3) was exercisable by the High Court, but denied the existence of the conditions precedent to the exercise of the jurisdiction". (emphasis supplied)

53. In our opinion, the above case does

not help the respondent-wife. The case was

decided on concession on behalf of the

plaintiff that an order of transfer could be

passed by a High Court transferring a suit from

a Court subordinate to the said Court to a

Court subordinate to another High Court. It did

not lay down a proposition of law that under

the Code, a High Court can transfer a suit,

appeal or other proceeding pending in a Court

subordinate to that Court to a Court

subordinate to another High Court. Moreover,

the case had been decided prior to the 29

amendment in Section 25 of the Code by the

Amendment Act, 1976.

54. In State Bank of India v. M/s Sakow

Industries Faridabad (Pvt.) Ltd., New Delhi,

AIR 1976 P&H 321, the State Bank of India filed

a suit in the Alipore Court in West Bengal

against the defendant-Company for recovery of

loan amount of Rs.53 lacs. The defendant

Company also filed a suit in the Ballabgarh

Court in Punjab & Haryana for permanent

injunction restraining the petitioner Bank from

interfering with the peaceful possession of its

premises and its estates. Before settlement of

issues in Ballabhgarh suit, the plaintiff Bank

filed an application before the High Court of

Punjab & Haryana under Sections 22, 23 (3) read

with Section 151 of the Code for transfer of

suit from latter (Ballabhgarh) Court to former

(Alipore) Court.

55. Observing that the same questions of law

and fact were involved in both the suits and 30

the parties were also the same, the High Court

ordered transfer of suit from Ballabhgarh Court

to Alipore Court. It was held that such order

could be passed in exercise of power under

Section 23(3) read with Section 151 of the

Code.

56. The Court stated;

"The plain reading of this Section shows that in a situation like the present, High Court can order transfer of the case to some other Court under the different High Court. Moreover, under Section 151 of the Code of Civil Procedure every court has the inherent jurisdiction to pass any order to meet the ends of justice. In Pragji Soorji and Co. of Bombay v. Kalu Mal Shori Mal and Co. of Amritsar, AIR 1924 Lah 306, it has been held that the inherent powers under Section 151 of the Code of Civil Procedure can be used for the purpose of preventing or remedying grave abuses. Same view has been taken in Datt Singh v. Tej-datt Singh, AIR 1934 All 14. In the peculiar circumstances of the present case, as the facts enumerated reveal, it would meet the ends of justice and prevent the abuse of the process of the Court if the case pending in the Ballabgarh Court is transferred to the Court at Calcutta in which the connected matter is pending between the petitioner-Bank and the said Company".

31 [see also Jagatguru Shri Sankaracharya Jyotish Pithadhiswar Shri Swami Swaroopanand v. Ramji Tripathi Lal Bahadur Tripathi, AIR 1979 MP 50].

(ii) Position after Amendment Act, 1976

57. As already stated, the Code was

amended in 1976 with effect from February 1,

1977. Section 25, as originally enacted in the

Code of 1908 and amended by the Government of

India (Adaptation of Indian Laws) Order, 1937

(which was formal in nature), was substituted

by the Amendment Act, 1976. The scope of

amended Section 25 is very wide. It empowers

the Supreme Court (this Court) to transfer any

suit, appeal or other proceeding from one High

Court to another High Court or from one Civil

Court in a State to any other Civil Court in

another State throughout the country. Bare

reading of the section clearly reflects the

legislative intent. Plenary and extensive

powers have been conferred on this Court under

Section 25 as it stands now.

32

58. No case has come up before this Court

interpreting the provisions of sub-section (3)

of Section 23 in juxtaposition of Section 25 of

the Code. There are, however, judicial

pronouncements by some High Courts.

59. In Priyavari Mehta v. Priyanath Mehta,

AIR 1980 Bom 337, A-wife filed a matrimonial

petition under Section 13 of the Hindu Marriage

Act, 1955 against B-husband in the Court of

Civil Judge at Mussoorie (Dehradun) for divorce

on the ground of cruelty. B appeared in

response to the summons and filed written

statement. B then filed a petition for

restitution of conjugal rights under Section 9

of the Act in the District Court, Nagpur. A

presented an application under sub-section (3)

of Section 23 of the Code in the High Court of

Bombay (Nagpur Bench) for transfer of suit

instituted by B in Nagpur to Mussoorie. The

application was resisted mainly on the ground

that the High Court of Bombay (Nagpur Bench)

had no jurisdiction to transfer a suit 33

instituted in the Court at Mussoorie which was

a Court subordinate to other High Court.

60. The Court considered the provisions of

Sections 22 to 25 as also Section 21A of the

Hindu Marriage Act and held that the Court had

such power under sub-section (3) of Section 23

of the Code. The Court negatived the contention

of B 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.

61. The Court stated;

"Shri Ghatpande, appearing for the non-applicant, argued that in view of the amended Section 25 of the Code the powers of the High Court under Section 23(3) of the Code stand superseded. I see no merit in this submission. Old Section 25 of the Code empowered the State to transfer civil suits etc. in certain circumstances from the High 34

Court exercising jurisdiction in the State to another High Court. That section which was narrow in its scope has been substituted by new Section 25 and it now provides for transfer of suits by the Supreme Court which power was earlier exercised by the Government. The section now confers on the Supreme Court such wide and plenary power of transfer as it has in Criminal cases under Section 406 of the Cr. P. C. irrespective of the fact whether the Court to which transfer is sought has or has no jurisdiction to try the suit, appeal or other proceedings if it is satisfied that it is expedient in the ends of justice so to do. Section 22 of the Code (which as observed above has to be read along with Section 23) applies where a suit in its entirety is cognizable by either of the two Courts, that is, the Court in which the suit is instituted and the Court to which transfer is sought. It cannot, therefore, be said that Section 23(3) of the Code stands superseded or is rendered negatory in view of the amended Section 25 of the Code as submitted by Shri Ghatpande".

(emphasis supplied)

62. In Mamta Gupta v. Mukund Kumar Gupta,

AIR 2000 AP 394, the wife filed an application

in the High Court of Andhra Pradesh to transfer

a case pending in the Family Court, City Civil

Court, Hyderabad to Family Court, Indore 35

(M.P.). The question before the High Court was

whether such a transfer could be effected by

the High Court of Andhra Pradesh by

transferring a case pending in a Court

subordinate to it to a Court subordinate to the

High Court of Madhya Pradesh.

63. Considering the provisions of sub-

section (3) of Section 23 and power of the High

Court to effect transfer as also Section 25 and

power of the Supreme Court (this Court), the

Court held that both the provisions must be

given effect and the power to transfer a case

by a High Court under sub-section (3) of

Section 23 to a Court subordinate to different

High Court must be conceded. If it is not

done, Section 23 (3) would become redundant.

64. Referring to case law on the point,

the High Court observed;

"Therefore, the contention of the learned Counsel for the respondent that the power of High Court under Section 23(3) is deemed to have been impliedly withdrawn consequent on the introduction of new Section 25 of Code of Civil Procedure cannot be accepted.

36 Admittedly, as on date Section 23(3) continue to subsist on the statute books along with Section 25. What is held by the Supreme Court in Guda Vijayalakshmi's case (supra), that it had a wider power of transfer, but at the same time it cannot be construed that Section 23(3) became redundant. So long as the provision subsists, it continues to yield power vested in it. Merely because Section 25 confers the powers on the Supreme Court to transfer the case, it cannot be construed that Section 23 gets deleted. The Legislature would have thought fit to do so, when new Section 25 was enforced. Therefore, Section 23 (3) and Section 25 have to be construed in a harmonious way and by doing so, it can only be interpreted that it is for the party seeking transfer either to choose the Forum under Section 23(3) or 25 depending upon his social, economic status.

Option thus vested with the party.

But, to say that the party is precluded from filing application

under Section 23(3) after 1-2-1977, and that the party has to file an application only before the Supreme Court under Section 25, would amount to emasculating Section 23(3). Both the provisions are independent and option is left to the party approaching the Court for transfer.

(emphasis supplied)

65. Recently, in Lakshmi Nagdev v.

Jitendra Kumar Nagdev, (2004) 4 MPLJ 310, a 37

petition was filed under Section 23(3) of the

Code in the High Court of Madhya Pradesh by the

wife seeking transfer of matrimonial suit filed

by the husband in the Court of III Additional

District Judge, Katni (M.P.) to the Court of

competent jurisdiction in District Durg in the

State of Chhattisgarh. The prayer was objected

on the ground that no such order could be

passed which seeks transfer of a suit from a

Court subordinate to one High Court to a Court

subordinate to other High Court.

66. Referring to Firm Kanhaiyalal,

Jagatguru Shri Shankaracharya and Mamta Gupta,

the Court held that such a transfer could be

effected.

67. The Court said;

"In the light of aforesaid judgments the objection about maintainability of the petition

deserves to be rejected. Section 23(3) of the CPC empowers the High Court to transfer a suit pending in a subordinate court to a court subordinate to another High Court, Section 21A of the 'Act' do not in any way exclude, affect or curtail the powers of this Court under Section 23 38

(3) of the CPC. The powers of the High Court under Section 23(3) and the Supreme Court under Section 25 of the CPC are to be construed harmoniously and parties are free to choose the forum either under Section 23(3) or under Section 25 of the CPC".

(emphasis supplied)

68. Special reference may be made to a

decision of this Court in Guda Vijayalakshmi

v. Guda Sekhara Sastry, (1981) 2 SCC 646. In

that case, A (wife) filed a suit for

maintenance against B (husband) in a competent

Court in Andhra Pradesh. On receipt of notice,

B filed a divorce petition under the Hindu

Marriage Act, 1955 against A in Rajasthan

Court. A filed a transfer petition under

Section 25 of the Code in this Court (Supreme

Court) for transfer of B's suit from Rajasthan

to Andhra Pradesh.

69. This Court considered the provisions

of Sections 24 and 25 of the Code prior to and

after the Amendment Act of 1976 and also

Sections 21 and 21-A of the Hindu Marriage Act, 39

1955 and held that a transfer petition under

Section 25 of the Code would be maintainable

irrespective of the provisions of Sections 21

and 21A of the Hindu Marriage Act which did not

exclude the jurisdiction of this Court under

the Code. The Court also doubted the

correctness of the decision of the High Court

of Bombay (Nagpur Bench) in Priyavari Mehta.

70. Having considered the scheme of the

Code as amended from time to time, in our

judgment, the law relating to transfer of cases

(suits, appeals and other proceedings) is well-

settled. It is found in Sections 22 to 25 of

the Code and those provisions are exhaustive in

nature. Whereas Sections 22, 24 and 25 deal

with power of transfer, 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.

40

71. In our considered opinion, where

several Courts having jurisdiction are

subordinate to one appellate Court, an

application for transfer may be made to such

appellate Court and the Court may transfer a

case from one Court subordinate to it to

another Court subordinate to it. Likewise,

where such Courts are subordinate to the same

High Court, an application may be made and

action may be taken by the High Court

transferring a case from one Court subordinate

to it to any other Court subordinate to that

High Court. But where such Courts are

subordinate to different High Courts, it is

only the Supreme Court (this Court) which may

pass an order of transfer. In other words, if

two courts are subordinate to different High

Courts, one High Court has no power,

jurisdiction or authority to transfer a case

pending in any court subordinate to that High

Court to a Court subordinate to other High 41

Court. It is only the Supreme Court (this

Court) which may order the transfer.

72. Section 25, as originally enacted in

the Code of 1908 and the decisions prior to

Amendment Act of 1976, have no application

after substitution of Section 25 as it stands

today. To us, Section 23 has no application to

such cases and the only provision attracted is

Section 25.

73. The language of Section 25 also

supports the view which we are inclined to

take. Sub-section (1) of Section 25 of the

Code enacts that "On the application of a

party", this Court may pass an appropriate

order of transfer. Thus, Section 25 is `self-

contained Code' and comprises of substantive as

well as procedural law on the point. It allows

a party to move the Court by making an

application as also it empowers the Court to

make an order of transfer.

42

74. The matter can be examined from

another angle also. Every Court has its own

local or territorial limits beyond which it

cannot exercise the jurisdiction. So far as

this Court is concerned, its jurisdiction is

not circumscribed by any territorial limitation

and it extends over any person or authority

within the territory of India. But, it has no

jurisdiction outside the country. So far as a

High Court is concerned, its jurisdiction is

limited to territory within which it exercises

jurisdiction and not beyond it. On that analogy

also, a High Court cannot pass an order

transferring a case pending in a Court

subordinate to it to a Court subordinate to

another High Court. It would be inconsistent

with the limitation as to territorial

jurisdiction of the Court.

75. This can be compared with exercise of

extraordinary jurisdiction by a writ Court

under Article 32 or 226 of the Constitution. It

is well settled that this Court can exercise 43

power by issuing writs, directions or orders to

every authority within the territory of India

(as also those functioning outside the country

provided such authorities are under the control

of Government of India). But the jurisdiction

of a High Court has territorial limitations. It

can exercise the power "throughout the

territories in relation to which it exercises

the jurisdiction", that is to say, the writs

issued by a High Court cannot run beyond the

territory subject to its jurisdiction and the

person or authority to whom the High Court is

empowered to issue such writs must be within

those territories which clearly implies that

they must be amenable to its jurisdiction in

accordance with law.

76. The counsel for the respondent-wife

submitted that provisions of Section 23(3) and

25 of the Code should be harmoniously

construed. Referring to Priyavari Mehta, and

Lakshmi Nagdev, it was submitted that Section

23(3) of the Code did not stand deleted or 44

superseded by Section 25 of the Code. If it is

held that for transfer of a case, appeal or

other proceeding from a Court subordinate to

one High Court to a Court subordinate to

another High Court, only this Court can be

approached, Section 23(3) of the Code will

become nugatory, redundant and futile. No

Court of law will interpret one provision of

law which will make another provision

superfluous or ineffective. It was, therefore,

submitted that it has been rightly held that

the parties must be left "to choose the forum"

either under Section 23(3) or 25 of the Code.

77. We are unable to uphold the

contention. In our considered view, the

fallacy in the argument lies in the fact that

it presumes and presupposes that Section 23 of

the Code is a substantive provision which

authorizes a Court mentioned therein to order

transfer. It is not so. The said section, as

held by us, is merely a procedural one or a 45

machinery provision and provides mode, method

or manner in approaching a Court for making an

application. It does not empower a Court to

effect transfer. Moreover, Section 25 of the

Code is a `complete Code' dealing with

substantive as well as procedural law. Section

23, in our opinion, therefore, cannot be

interpreted in the manner suggested by the

learned counsel appearing for the wife.

78. After the commencement of the

Constitution and establishment of the Supreme

Court (this Court), Parliament thought it

proper to amend Section 25 of the Code and

accordingly, it was substituted by empowering

this Court to order transfer from one High

Court to another High Court or to one Civil

Court in one State to another Civil Court in

any other State. It is, no doubt, true that

even when Section 25 in the present form was

substituted by the Amendment Act of 1976, sub-

section (3) of Section 23 of the Code has 46

neither been deleted nor amended. That,

however, is not relevant. Since in our

considered view, Section 23 is merely a

procedural provision, no order of transfer can

be made under the said provision. If the case

is covered by Section 25 of the Code, it is

only that section which will apply for both the

purposes, namely, for the purpose of making

application and also for the purpose of

effecting transfer. On the contrary, reading of

sub-section (3) of Section 23 of the Code in

the manner suggested by the learned counsel for

the respondent-wife would result in allowing

inroad and encroachment on the power of this

Court not intended by Parliament. Section 23,

therefore, in our considered view, must be read

subject to Section 25 of the Code. The

decisions taking a contrary view do not lay

down correct law. We, therefore, overrule them.

Even if such power was with a High Court

earlier, it stood withdrawn with effect from

January 01, 1977 in view of Section 25 of the 47

Code as amended by Code of Civil Procedure

(Amendment) Act, 1976.

79. We are unable to agree with the view

that in such cases, inherent powers may be

exercised under Section 151 of the Code as held

by the High Court of Punjab & Haryana in State

Bank of India. It is settled law that inherent

powers may be exercised ex debito justitiae in

those cases, where there is no express

provision in the Code. The said power cannot be

exercised in contravention or in conflict of or

ignoring express and specific provision of law.

Since the law relating to transfer is contained

in Sections 22 to 25 of the Code, and they are

exhaustive in nature, Section 151 has no

application. Even that contention, therefore,

cannot take the case of respondent-wife

further.

80. For all these reasons, in our opinion,

the order passed by the High Court is not

sustainable and deserves to be set aside. We 48

hold 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 under sub-

section (3) of Section 23 of the Code and it is

only this Court which can exercise the said

authority under Section 25 of the Code. The

order passed by the High Court, therefore,

deserves to be set aside and is accordingly set

aside.

81. On the facts and in the circumstances

of the case, however, the parties are directed

to bear their own costs.

82. The appeal is disposed of accordingly.

.........................................................J. (C.K. THAKKER)

NEW DELHI, .........................................................J. SEPTEMBER 26, 2008. (D.K. JAIN)