Neha Arun Jugadar & Anr vs Kumari Palak Diwan Ji
- SCC(2011) 15 SCC 222
- Neutral2011 INSC 121
- AIRAIR 2011 SC 1164
- SCR[2011] 2 SCR 907
Ratio decidendi
The rule this decision rests on
Where a party alleges that the court in which a case is pending has no jurisdiction to hear it, the appropriate remedy is to apply to that court itself for dismissal on the ground of lack of jurisdiction, not to seek a transfer of the case to another court. A transfer under the applicable transfer jurisdiction can only be granted where both the transferor and transferee courts possess jurisdiction over the matter, and the transfer is sought on grounds of convenience or the availability of witnesses at the alternative forum, not on grounds that the original court has no jurisdiction at all.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
TRANSFER PETITION (CIVIL.) NO(s). 182 OF 2011 NEHA ARUN JUGADAR & ANR. Petitioner(s)
VERSUS
KUMARI PALAK DIWAN JI Respondent(s)
O R D E R
Heard learned counsel for the petitioners.
This Transfer Petition has been filed to transfer case being MACT No. 138 of 2009 pending at the District Judge (MACT Court, Gautam Budh Nagar, U.P.) to the competent Court at Pune, Maharashtra. The petitioners allege in the petition that the MACT Court, Gautam Budh Nagar, U.P. has no jurisdiction in the matter.
An order of transfer of a case can be passed where both the courts, namely, the transferor court as well as the transferee court, have jurisdiction to hear the case and the party seeking transfer of the case alleges that the transferee court would be more convenient because the witnesses are available there or for some other reason it will be convenient for the parties to have the case heard by the transferee court. There is no question of transfer of a case which has been filed in a court which has no jurisdiction at all to hear it.
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In a case where a party alleges that the court where the case is pending has no jurisdiction, he should apply to that court for dismissing it on this ground. There is no question of transfer of such a case.
Hence, the petitioners herein may apply to the District Judge (MACT Court, Gautam Budh Nagar, U.P.) for dismissal of the case pending before it on the ground that there is no jurisdiction in the Court to hear the case, and if they do so, the Court concerned will decide the application as a preliminary ground before proceeding to hear the case on merits.
With these observations, the transfer petition is dismissed.
.........................J.
(MARKANDEY KATJU)
.........................J.
(GYAN SUDHA MISRA)
NEW DELHI;
FEBRUARY 14, 2011.
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