# DURGESH SHARMA v. JAYSHREE

- **Citation:** [2008] 13 S.C.R. 1056
- **Court:** Supreme Court of India
- **Decided:** 2008-09-26
- **Case number:** Civil Appeal No. 5857 of 2008
- **Bench:** C.K. Thakker, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/durgesh-sharma-v-jayshree-23680
- **Pages:** 30

## Headnote

Code of Civil Procedure, 1908:
s. 23 ands. 25 (as substituted by Act 104of1976) rlw ss.
c 22 and 24 - High Court, in purported exercise of its power u/s
23(3), transferring a case pending in a court subordinate to it,
to a court subordinate to another High Court - HELD: A High
Court has no power to transfer a case pending in a court subordinate to it, to any court subordinate to another High Court,
D and it is only the Supreme Court which can exercise the said
-.,. .
authority uls 25 of the Code - s.23 is not a substantive provision but a procedural or machinery provision, which merely
provides forum, mode, method or manner in approaching an
appropriate court to make an application - It does not emE power a court to effect transfer - s. 25 is a 'complete Code'
and comprises substantive as well as procedural law - It allows a party to make an application before the Court and also
empowers the Court to make an order of transfer - s. 23 must
be read subject to s.25 - Decisions of High Courts taking a
F contrary view, overruled - Impugned order of High Court set
t· -
aside.
ss. 22 to 25 and s.151 - Transfer of cases -Applicability
of s.151 - HELD: Since law relating to transfer of cases is
contained in ss. 22 to 25 of the Code and these provisions
G are exhaustive in nature, s.151 has no application.
The appellant-husband filed a petition for dissolution of marriage uls 13 of the Hindu Marriage Act, 1955 in
+
the Family Court at Ujjain (Madhya Pradesh) stating that
H
1056
'j.
DURGESH SHARMA v. JAYSHREE
1057
both the parties lastly lived together at Ujjain as husband A
and wife. lhe respondent-wife in her written statement
denied the averments and contended that the Ujjain court
had no jurisdiction to try and decide the petition. She also
•
-...1.:
filed an application u/s 9 of the Act for restitution of conjugal rights in the court of Civil Judge (Sr. Division), B
Malegaon (Maharashtra). Thereafter, she filed an application u/s 23 of the Code of Civil Procedure, 1908 in the High
Court of Madhya Pradesh for transfer of the petition filed
by her husband in Ujjain court to a court at Malegaon.
The High Court allowed tlie application.
c
In the instant appeal filed by the husband, the submissions of the parties were confined to the power, authority and jurisdiction to transfer suits/appeal/other proceedings by a High Court from one court subordinate to
• 'I'
it to a court subordinate to another High Court:
D
Disposing of the appeal, the Court
HELD: 1.1 A High Court has no power, authority or
jurisdiction to transfer a case, appeal or other proceedings pending in a court subordinate to it, to any court E
subordinate to~anothe_r High Court in purported exercise
of power under'sub-section (3) of Section 23 of the Code
of Civil Procedure, 1908,'and it is only the Supreme Court
which can exercise the said authority under Section 25
·-;
of the Code as substituted by Amendment Act of 1976.
F
[para 8] [1085,C-D]
Guda Vijaya/akshmi v. Guda Sekhara Sastry, (1981) 2
sec 646 - relied on.
1.2 The law relating to transfer of cases (suits, appeals and other proceedings) is well-settled. It is found in
G
Sections 22 to 25 of the Co.de, and these 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 transH
1058
SUPREME COURT REPORTS
[2008] 13 S.C.R.
-\. .
A fer may be made. Section 23 is not a substantive provision vesting power in a particular Court to order transfer.
[para 7] [1081,F-G]
1.3 Where several Courts having jurisdiction are subordinate to one appellate Court, an application for trans-
~ .
B fer 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
c Court transferring a case from one Court subordi

## Text

_Characters 0–39,975 of 60,240. This is a partial read: ask again with offset=39975 for what follows._

[2008] 13 S.C.R. 1056
~·
A
DURGESH SHARMA
v.
JAYSHREE
(Civil Appeal No. 5857 of 2008)
B
SEPTEMBER 26, 2008
~ .
[C.K. THAKKER AND D.K. JAIN, JJ]
Code of Civil Procedure, 1908:
s. 23 ands. 25 (as substituted by Act 104of1976) rlw ss.
c 22 and 24 - High Court, in purported exercise of its power u/s
23(3), transferring a case pending in a court subordinate to it,
to a court subordinate to another High Court - HELD: A High
Court has no power to transfer a case pending in a court subordinate to it, to any court subordinate to another High Court,
D and it is only the Supreme Court which can exercise the said
-.,. .
authority uls 25 of the Code - s.23 is not a substantive provision but a procedural or machinery provision, which merely
provides forum, mode, method or manner in approaching an
appropriate court to make an application - It does not emE power a court to effect transfer - s. 25 is a 'complete Code'
and comprises substantive as well as procedural law - It allows a party to make an application before the Court and also
empowers the Court to make an order of transfer - s. 23 must
be read subject to s.25 - Decisions of High Courts taking a
F contrary view, overruled - Impugned order of High Court set
t· -
aside.
ss. 22 to 25 and s.151 - Transfer of cases -Applicability
of s.151 - HELD: Since law relating to transfer of cases is
contained in ss. 22 to 25 of the Code and these provisions
G are exhaustive in nature, s.151 has no application.
The appellant-husband filed a petition for dissolution of marriage uls 13 of the Hindu Marriage Act, 1955 in
+
the Family Court at Ujjain (Madhya Pradesh) stating that
H
1056
'j.
DURGESH SHARMA v. JAYSHREE
1057
both the parties lastly lived together at Ujjain as husband A
and wife. lhe respondent-wife in her written statement
denied the averments and contended that the Ujjain court
had no jurisdiction to try and decide the petition. She also
•
-...1.:
filed an application u/s 9 of the Act for restitution of conjugal rights in the court of Civil Judge (Sr. Division), B
Malegaon (Maharashtra). Thereafter, she filed an application u/s 23 of the Code of Civil Procedure, 1908 in the High
Court of Madhya Pradesh for transfer of the petition filed
by her husband in Ujjain court to a court at Malegaon.
The High Court allowed tlie application.
c
In the instant appeal filed by the husband, the submissions of the parties were confined to the power, authority and jurisdiction to transfer suits/appeal/other proceedings by a High Court from one court subordinate to
• 'I'
it to a court subordinate to another High Court:
D
Disposing of the appeal, the Court
HELD: 1.1 A High Court has no power, authority or
jurisdiction to transfer a case, appeal or other proceedings pending in a court subordinate to it, to any court E
subordinate to~anothe_r High Court in purported exercise
of power under'sub-section (3) of Section 23 of the Code
of Civil Procedure, 1908,'and it is only the Supreme Court
which can exercise the said authority under Section 25
·-;
of the Code as substituted by Amendment Act of 1976.
F
[para 8] [1085,C-D]
Guda Vijaya/akshmi v. Guda Sekhara Sastry, (1981) 2
sec 646 - relied on.
1.2 The law relating to transfer of cases (suits, appeals and other proceedings) is well-settled. It is found in
G
Sections 22 to 25 of the Co.de, and these 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 transH
1058
SUPREME COURT REPORTS
[2008] 13 S.C.R.
-\. .
A fer may be made. Section 23 is not a substantive provision vesting power in a particular Court to order transfer.
[para 7] [1081,F-G]
1.3 Where several Courts having jurisdiction are subordinate to one appellate Court, an application for trans-
~ .
B fer 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
c Court transferring a case from one Court subordinate to it
to any other Court subordinate to that High Court. Where
several Courts having jurisdiction are subordinate to different High Courts, it is only the Supreme Court which may
pass an order of transfer and one High Court has no power,
D jurisdiction or authority to transfer a case pending in any
'I' •
court subordinate to that High Court to a Court subordinate to other High Court. [para 72] [1081,G-H; 1082,A-C]
1.4 Section 25, as originally enacted in the Code of 1908
E
and the decisions prior to Amendment Act of 1976, have no
application after substitution of Section 25 as it stands today. Section 23 has no application to such cases and the
only provision attracted is Section 25. [para 72] [1082,D]
Abu Bakar Abdul Rahiman & Co. v. Rambux, AIR 1916
F Nagpur 31 : 40 IC 393; Ram Kumar v. Tula Ram NathuRam,
t .
AIR 1920 Patna 138 (2) : 56 IC 920; Dr. Rajnath v. L. Vidya
Ram & Ors., AIR 1953 All 772; Firm Kanhaiyalal v. Zumerlal,
AIR 1940 Nag 145: 190 IC 439; P Salayandi Nadar& Ors. v.
Venugopala Chetty & Ors., AIR 1960 Ker 91 : ILR 1959 Ker
G 180; Western UP Electric Power Supply Company Ltd. v.
Hind Lamps Ltd., (1969) 2 SCWR 16: 1969 UJ (SC) 54; and
State Bank of India v. Mis Sakow Industries Faridabad (Pvt.)
Ltd., New Delhi, AIR 1976 P&H 321 - referred to.
-I -
1.5 Sub-section (1) of Section 25 of the Code enacts
H that "On the application of a party'', the Supreme Court may
DURGESH SHARMA v. JAYSHREE
1059
.... )-
pass an appropriate order of transfer. Thus, Section 25 is A
'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. [para 74] [1082,E-F]
~ .......
1.6 Section 23 of the Code is not a substantive proviB
sion authorizing a Court mentioned therein to order trans-
' fer. The said section is merely a procedural one or a 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 c
of the Code is a 'complete Code' dealing with substantive
as well as procedural law. [para 78] [1083,H; 1084,A]
2. After the commencement of the Constitution of
India and establishment of the Supreme Court, Parliament D
.. -.,!
thought it proper to amend Section 25 of the Code and,
accordingly, it was substituted empowering the Supreme
· Court to order transfer from one High Court to another
High Court or from one Civil Court in one State to another
Civil Court in any other State. It is, no doubt, true that even
E
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 neither been deleted nor amended. That,
however, is not relevant. Since Section 23 is merely-a procedural provision, no order of transfer can be made un-
. ~
der the said provision. If the case is covered by Section
F
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.
Section 23, therefore, must be read subject to Section 25
of the Code. Th~ decisions taking a contrary view do not· G
lay down correct law and are, therefore, overruled. Even
if such power was with a High Court earlier, it stood with-
- +·
drawn with effect from January 1, 1977 in view of Section
25 of the Code as amended by Code of Civil Procedure
(Amendment) Act, 1976. [para 79] [1084,8-G]
H
1060
SUPR~ME COURT REPORTS
[2008] 13 S.C.R.
A
Priyavari Mehta v. Priyanath Mehta, AIR 1980 Born 337;
Mamta Gupta v. Mukund Kumar Gupta, AIR 2000 AP 394;
and Lakshmi Nagdev v. Jitendra Kumar Nagdev (2004) 4
MPLJ 310 - overruled.
3. Every Court has its own local or territorial limits
8 beyond which it cannot exercise the jurisdiction. So far
as the Supreme 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
C 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
D be inconsistent with the limitation as to territorial J·urisdiction of the Court. [para 75] [1082,F-H; 1083,A]
4. 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
E 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 these provisions are exhaustive in nature, Section 151 has no application. [para 80] [1085,A-B]
F
G
H
5. The order passed by the High Court is not sustainable and is accordingly set aside. [para 81] [1085 C]
Case Law Reference
AIR 1916 Nagpur 31 : 40
referred to
IC 393
AIR 1920 Patna 138 (2) : 56 referred to
IC 920
AIR 1953 All 772
referred to
para 41
para 43
para 45
.,.. ..
,. .
./ -
'"}
DURGESH SHARMA v. JAYSHREE
1061
AIR 1940 Nag 145 : 190
referred to
para 46
A
IC 439
AIR 1960 Ker 91 : ILR
referred to
para 48
1959 Ker 180
.4'
~
(1969) 2 SCWR 16 : 1969
referred to
para 49
UJ (SC) 54
B
AIR 1976 P&H 321
referred to
para 54
AIR 1980 Born 337
overruled
para 58
AIR 2000 AP 394
overruled
para 62
c
(2004) 4 MPLJ 310
overruled
para 65
(1981) 2 sec 646
relied on
para 68
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5857
... _"""'ii,
of 2008
D
From the final Judgment and order dated 25.1.2007 of
the High Court of Madhya Pradesh, bench at lndor_e in Misc.
Civil Case No. 414 of 2005
A. K. Ganguli, Chanchal Kumar Ganguli for the Appellant.
E
Manisha T Karia and Sunil Kumar Verma for the Respondent.
The Judgment of the Court was delivered by
' ·-f
C.K. THAKKER, J. 1. Leave granted.
F
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
Cou_rt subordinate to another High Court.
G
Factual Matrix
-~
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. MarH
1062
SUPREME COURT REPORTS
(2008] 13 S.C.R.
-\ ..
A
riage 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 quarrelt
B
~ i..
some. ·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
c 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 from 1991
to 1997. In 1997, the respondent-wife came to Ujjain, but after
about 3-4 months, she again left matrimonial home and deD serted the husband permanently without proper or sufficient rea-
"' .
son, depriving the husband of matrimonial enjoyment. The
husband's prestige has been badly affected by the conduct of
the wife.
E
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
o.ctober 08, 2004 wherein false allegations have been levelled
against the husband which clearly went to show that she was
F
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
G which was registered as 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
H decide the petition.
-
· , 'OURGESH SHARMA v. JAYSHREE
1063
. ).
[C.K. THAKKER, J.]
,
/.
I
;7 .. The respondent-wife filed a written statement contro-· A
verting facts and denying allegations levelled (!gainst her by the
appellant-husband. It was stated by her that the appellant-husbaiid tfad neither.provided maintenance to the respondent-wife
')1
,
I
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!
.
.
.
·~
nor to the children. She denied that her conduct towards her
·.
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husband and his family members was not proper and that she
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dkl,~ot wc;int to st,ay with ,the f§lmily members of the h~sband. All
such allegations were made only with a view to taking divorce
t
from me rekp6naent-wife. It was denied that the wife' deserted.
the li'usb1in9 wjt~~ut;__sufficient cause.
. .
. -
..
~
.
.
,'.1
8. She also refuted the allegation of having deprived the c
r
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
, -f
stated that her husband took away all the ornaments, jewellery D
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 ~t Malegaon, DisE
trict 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 brot.hers
had been working separately and were maintaining their own
f?milies: .She had, therefore, to travel at such along distance all
• -f
F
;
alone which was very difficult She also contended that Ujjain
I
Court had no jurisdiction to entertain, try and decide the peti-
~
tion, A prayer was, therefore, made to dismiss HMA with costs.
,
-· '' 11 O:·Proceedings were also initiated by the respondentI
~
wife under Section 125 of the Code of Criminal Procedure
...
' G
.
1973 at Malegaon for maintenance as also under Section 24
of the, Hindu Marriage Act at Ujjain. We are, however, not con-
- t
cerned 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
H
1064
SUPREME COURT REPORTS
[2008] 13 S.C.R.
' .
A 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
B
(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 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.
c
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
D 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
E
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.
F
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
G could not have transferred a case to a Court sub.ordinate 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.
H
17. The learned counsel for the respondent, on the other
DURGESH SHARMA v. JAYSHREE
[C.K. THAKKER, J.]
1065
hand, submitted that the order passed by the High Court is in·"- A-_
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 J:-iigh Court to a Court
subordinate to different High Court, in exercise 9f power under
sub-section (3) of Section 23 of the Code such order cah be
B
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 C
Constitution may not interfere with the said order. It was, therefore, submitted that the appeal deserves to be dismissed.
$fatutory provisions
• _,
19. Before we deal with rival contentions and case-law on
D
. i
. 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
E
Court to another Court.
·
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
F
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 instiG
tuted in one of two or more Courts and is institμted 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 H
1066
SUPREME COURT REPORTS
[2008] 13S.C.R.
A
may be made. It is material to the controversy in question and
may be reproduced;
C ..
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
~Eurt in which the suit is brought i~ situate.
Vf
(emphasis supplied)
24. Section 24 contains general power of transfer of any
suit, appeal or other proceeding at any stage on the applicaE ~ tion of a party or by a Court suo motu (of its own motion).
F 1
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,th.e partie$ and after hearing such of them as desired
to t>e 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
G ·
~-
before it for trial or disposal to any Court subordinate
J
to it and competent to try or dispose of the same, or
,. .
(b)
withdraw any suit, appeal or other proceeding
-f -
pending in any Court subordinate to it, and
. '
H
··~
(i)
try or dispose of the same; or
DURGESH SHARMA v. JAYSHREE ·
[C.K. THAKKER, J.]
1067
(ii)
transfer the same ·for trial or disposal to any A
Court subordinate to it and competent to try or
dispose of the same;· or · ·
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(iii) retransfer the same. for trial o.r disposal to the
Court froni' which it was withdrawn.
·
(2),Where any suit or proceeqing has been transferred or
., , • withdrawn under subsection (1)·. the Couriwhich thereafter
tries such s'uit may, subject to any special directions in the
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• ... .
. •
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.
..... ·h\
case of an order of transfer, either retry 1t or proceed from
B
._;.the poiht at which it was transferred orwithdrawn. .
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{. ·•. v.(3) For the purp~~es 'of thi~ sectici~'.. Courts ofA'ddidJtria1
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and Assistant Judges shall be deemed.to be subordiria.te
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(4) The Court trying any suit transferred or withdrawmunder 0
. . . this section from a Court of Small Causes shall,-for the
- c purposes of such suit, be deemed to'be a' Court0· oi'sma11
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26. There was a cleavage of opinion on the·1questiori
whether a "case could .be transferred from a Court .having no
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·:1'.•r~
I(,
jurisdiction to try it. Some High Courts have held.that the lan1 •
.
·1l_l1i
i<'j\_·~
1·~.f!
guage of Section 24 was very wide and there was no" restriction on the High Court in exercising the power oftranSfe(merely
because there was a dispute regarding jurisdiction:· Some·other
High Courts, however, took a contraryview. The~LawGommis" R
sion ·considered the question and suggested)arriendmehhthat
a suit or proceeding could be transferred under.this section.from
a Court which had no jurisdiction to try it.
b
1
;
J
JD S ¥.. 'w\'$1·, ....,(.,
r · 27. In the Statement of Objects and Reasdns~itwas:stated~;
Clause 10-There is a conflict of decisions with !e~g
1
rd 'f6 e
the question whether Section 24 applies dn :relation to a
.transfer of a suit from a Court which¢1as no:jurisaiction:to
try it. The High Court of Andhra P.radesh has held thatthe
language of Section 24 is veryJwide:rand~tbere~,c!lfe na H
1068
SUPREME COURT REPORTS
[2008] 13 S.C.R.
-\-
~
"
A
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
B
to try it.
~ 4
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
c
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
D 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.
E
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 subordinate to the District Court.
F 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 jurisdicG tion to try it.
34. Section 25, as originally enacted in the Code of 1908,
enabled the Governor-General in CoL•ncil to transfer, in certain
.+ .
circumstances, a suit, appeal or other proceeding from one High
H Court to another High Court and read thus:
'> >
DURGESH SHARMA v. JAYSHREE
1069
[C.K. THAKKER, J.]
25. Power of State Government to transfer suits-(1) A
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,
B
who may, by notification in the Official Gazette, transfer
such suit, appeal or proceeding to any other High Court;
(2) The law applicable to any suit, appeal or proceeding
so transferred shall be the law which the Court in which the
stilt, appeal or proceeding was originally instituted ought C
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 0
"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
E
' Government ofthe State in which that High Court has its
principal seat.
31. Plain reading of the above provision makes it clear
~ ··~
that scope and applicability of Section 25 was very much limF .
ited. It enabled the State Government (earlier Governor-General in Council) to exercise power by effecting transfer from one
High Court to any other High 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 G
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
H
1070
SUPREME COURT REPORTS
[2008] 13 S.C.R.
I..
~
A
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.
B
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
c
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
D
power of transfer. Section 25 is, therefore, being substituted
by a new section which provides for the transfer to the
lo- •
Supreme Court the existing power vested with the State
Government and to confer on th~ Supreme Court such
wide powers of transfer as it has in criminal cases under
Sect!on 406 of the Code of Criminal Procedure, 1973.
E
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
F
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
G
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
4 ' r
H
. other Civil Court in any other State.
51 .) 0 - • 3·_. · DURGESH:SHAHMA v. 'JAYSMREE - "
[C.K. THAKKER, J]
5;'1071
n; n
(2);_ Every appli~ation:Uflder this section shaltbe1made f::A
,~ . · ,. :~u,. by a motion which shall·be supp_0rted:byari:a:ffidayit.
;, I r; ~3) . The Court to which sucii' suil app€aJ'ofotRer7'fO~~dlhg
~, . ·, .~;,i·~ · .~ c: is.!r~n~ferr~d. sh?)!. :;'obi~f\ t.O.'~~Y.~P~.B!'c{difi~;Yfi~n~~n
~·
·' ' 1. "the order of transfer, either retry itor !)rocee~ frorn'ttie
. '.Jil 1 tl ;
, faage gt which 'it was transferred to
0iC1 nn.: I' r,r;.o·:~L.
FB
t. '1 2SV/ f ~'1&~; ~ _,._~ 1:
~I ·' ~f-f 'lJl•0 'J''>
,'-,~
';~/lPH1d .l1 :1:.JOJ
;:'\ ro:l·iU2· In dipmissing .any application under this section/the
.1 .. • u;_ •r 1·$up.reme:.Courhmay, if:: it is1.of .opini.on1.fhat!the
t · ·o J r,
,+ application~,w.as 1ifrivolous or:::iy:exatiousi;;ordendhe
,,,!f 'O r,.<: appliCO!nhto pal{) by way.lot cornpen·sationictocany ~C
person who has opposed the application such ·sum,
not exceeding two thousand rupees, as it considers
•:i2; '~n·)•~appropriate iH fi-i$ circumstat:i1e~i.6f tf1g
1
c9s~.
fGrli tJ'.J,' 1_'
:~;.-·-. .•
'. ''ilJ["°' :11r ,._· ·· 1~ 01~. "°H ~~· '-,.,..Q\)'"J c:,;,: to 1.C ~ O; ~~ tC'O:~
1Fitzn;(5k ,The ;:law· applicable-to any ·suit,1· appeal ocother
1s i•c ct 11, prnceed~ng transferred under this 1section-shall: be (0
the law which the Court;inw~ich.the suit;:appe<!l:'or
other. proceeding was originally instituted ought to
~de rtur::"1, .·;1
q~ ..
· _(:',r'1
~ •.
~
1•1n~ ...
·-I·.'
_,,•," "1u.1c\1_=~
:
-~"-
have applied to such suit, appeal or proceeamg.
') ;V 12'2
Case law
.
.
n.irlw ol lluoJ · J ;::os Jr'. 3<:nrU '":..nu,· i<c HtJr1 <~ : n• .::./' ~
:E
sieri'.':49- Having cQnsider:eo statutoryprovisions,:this is now the
,Jime1~qTefer)oJew deci$iOns;on the point:;The ,issue,•tin our
~opir:iion,,c,O!n GQnvenientlybe.discussed~·in two stages;.:J
~11
::··(f)15111:>01iiti0.·11~ :Hho."r".to -c-ode . of. c1.·vJ :
1P-r'o.6edure
ei.i (JJ 0 11 'a'{.a;lri&ndm~h1) A:6i, 1·975: .. and · ''" '· "·1 :· :':. • <0
r
gr;iVGri ;;>J~d~J 1 .-,~·1~~td :.-Jf't't
':.-·~ 0 .-1 (f_., t'n8
•1dt) .. )
n~ic
ng;H t(iik~'ll)'osition- after,dhe, :Code' OfiCivil< P-:rocedu re
twoJ '{'r~ (Ar:nendrrient)Act;:tt976:'•1::;;'1qs e.11
~r. ~ .~.:i
'18"d "(ij'P6sitl6'1l r't}&?to'Ailierldment Ace 1976 2r:·; Sr!
tl • c"' -)r1·
·~'>("·.P ..... ~ r~
,
.... '
.. ,
'""'I
t
~·h, -t. "I.,, ••
,
G
u
~-'
'
'c..-_...-:;: .....
. ..; -·
....
, .....
.
'·
' '
L.i
• .,1J
.....
(.. '
es r c41:-The. first case on the.point appears to be of,AbwBakar
tAP'dul,Rahiman &-co.1V:·Rambux, AIR 1916 Nagpur,3t :40 IC
~3~a11Jhe·Court·of,.Juditial1Gommissioner, Nagpur was::called
'upon to consi~er the question,Whether.a High,Court can transfer1acase. from a-Court subordinate to it to.a Court-subordinate I f;I
1072
SUPREME COURT REPORTS
[2008] 13 S.C.R.
A
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
Rs.5,000. An application was made by A to the Court of the
B 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
c subordinate to other High Court or to the Original Side of the
other High Court.
42. 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
D a suit to a Court subordinate to other High Court or to other
~ •
E
F
G
H
High Court on its Original Side.
4:1. 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
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,
DURGESH SHARMAv. JAYSHREE
1073
~ ,\
[C.K. THAKKER, J.]
in a case like the present, the Court to which the application A
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".
.
...,
B
(See also Topan Harji & Co. v. Singhai Da/chadn & Anr.;
AIR 1924 Nag 152 : 75 IC 548).
44. 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 subordi- c
nate to the High Court of Patna to a Court subordinate to the
High Court of Bombay.
45. 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 subordiD
nate 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".
46. In Or. Rajnath v. L. Vidya Ram & Ors., AIR 1953 All E
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
F
which applications under Section 22 are to be made .
. 47. In Firm Kanhaiyala/ v. Zurtierlal, 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
subordinate to another High Court. The Court held that Section G
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.
48. In that case, a suit was brought in a Court subordinate
H
1074
SUPREME COURT REPORTS
[2008] 13 S.C.R.
(
~
A to the High Court of Nagpur and transfer was sought to a Court
subordinate to the High Court of Calcutta by filing an applica-
!ion in the High Court of Nagpur. The Court, overruling Abu Bakar
held that such a transfer could be effected.
B
49. 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.
,
c
50. It may, however, be noted that the Court stated that the
competency of the. petition was not objected by the opposite
party.
51: In Western UP Electric Power Supply Company Ltd.
v. Hind Lamps Ltd., (1969) 2 SCWR 16: 1969 UJ (SC) 54, A
D 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 amOLint. B filed an
application in the High Court of Allahabad for transfer of suit
filed by Aand pending in the Court of Civil Judge at Mainpuri to
' .
E the Court of Sub-Judge at Delhi. The application was allowed
and_ the suH was transferred. A applied for recalling of the order
conten9in9 that condition precedent to the application of Sect1ons 22 ~nd 23 of the Code did not exist and the High Court
had no jur[sdiction to transfer the suit pending in Mainpuri Court
F to the Cou(t not subordinate thereto. The High Court, however,
rejected the prayer. A approached this Court.
t •
52. This Court, in the order, expressly noted that at the
hearing b~fore the High Court, the counsel for A conceded that
the High Court of Allahabad had jurisdiction to transfer Mainpuri
G suit to the ·court of Special Judge, Delhi. Taking into account
r·
the above concession before the High Court, this Court refused
t'o interfere with the order passed by the High Court transferring
a'suit from
1
~ Court subordinate to the High Court of Allahabad
4 -
to a Court subordinate to a different High Court (High Court of
H Delhi),
-·
DURGESH SHARMA v. JAYSHREE; -·~.
1075
[C.K. THAKKER, J.]
53. In para 6, this Court stated;
...... j
•
I ··1.
.
•
• ••• ..;.}~..>A
'.
.·~·
Y'
4 _,,.·"".
"It may be conceded that some other parts of the. evidence , ,
.
,•
I•<
'L'··
f
·~~~ ..)._"!!
. ..;<,_
of the witnesses are inconsistent with.the statement made
•
.
·
·
.
I~
>
0 V•. ~
-,
; ,: t.li ·,I '....
.. .)
by him. The learned Civil Judge.accepted the te~timony ,
and made a report to th~ H}gh Court. th<~t Hin9.~~~P~\td.:~~
!::!
had a place of business in Delhi. At t.he heari~g .Coyn,~~I " 8
, for the Appellant, conceded that the High. Court had .
IJ
•
, L
'
•
•
.....
•
>
•
("~
' ~,'
.,
jurisdiction to transfer the suit. It would be reasonable to
'
.
. '
'
•1
,
•
"·
l)
; ~
,_~ · · 11\_,
.
_,..
infer that the Appellant admitted that because the
~ · respondent·had a branch office in Delhi the Higti Court of
Allahabad had jurisdiction to transfer the Mainpuri suit-in· · C ·
exercise of the power under Section 22 read with-Section ··
23(3) of the Code of Civil procedure. Sitting· in appeal
with Special Leave,· we would not be justified iri 'ignoring '"
the concession made at the bar by Counsel' for 'fhi:f·_
Appellant. We are unable to accept the contention that ou
Counsel merely admitted that jurisdiCtion "under SeCtions
22 and 23(3) was exereisable'by !Jhe •High: Court; but
denied the existence of the conditions precedent tO'the
exercise of the jurisdiction".
--:, '°'•'
" r;;
.. :·
.,1 .. '•,.>'
E-=i
.. ( e,mph~si~.-supplied)
•
"'L.
...
-~,
.....
~
54. In our opinion, the above case does not help the respondent-wife. The'case was'·decii:led cin concession on behalfof the plaintiff that an· order of transfer could be passed by a
High 'Court transferring a 'suit from a· Coui't•subordinate·to the
said'Court to :a Court subordinate to another Hig'h Court. It did
not-lay down':a'propositioh"?of lav./that• uneer.the Code, a High
Court can transfer-a suit, ·appeaf'or-icitfler?proceeding pending
in'a Court slibordirfate:to0that Gb'urt to•a·court•subordinafe to
another ~Hgh Court: Moreover,)tf'ie'.C''cfse h-ad been decided prior
to::.the am-enament in Seetl6ri; 25' of the· Code by the Amendment Act, 1976.•uoJ erli ct.· 1nlcrw ,r ~.
..-_ , ' '•' , ,
.i:...1-
··
('dh;~l'-':1(' r.:·
.... ,..,. r·
·.j,".11'J.C'<1!1C"
.Qrh -,:rf·i 1·
55. In Staie ·Bar;ik.of.lndhi x ,M/s. $akpw; Industries
Faridabad (Pvt.) ud,', New 'OelhtAI Rl!1976 p~fi2-l'321: 'the 'state
Bank of. India 'filed a' 'suit fin:.