# SHAH NEWAZ KHAN & ORS v. STATE OF NAGALAND & ORS

- **Citation:** [2023] 3 S.C.R. 985
- **Court:** Supreme Court of India
- **Decided:** 2023-02-28
- **Case number:** Civil appeal no. 1497 of 2023
- **Bench:** Hrishikesh Roy, Dipankar Datta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shah-newaz-khan-ors-v-state-of-nagaland-ors-37013
- **Pages:** 29

## Headnote

Code of Civil Procedure, 1908 - ss.24, 25 - Constitution of
India - Arts. 214, 231 - Suit - Transfer of - Appellant-plaintiff
moved an application u/s. 24 of CPC before the Gauhati High Court
(Common High Court for the states of Assam, Nagaland and two
other states) for an order to transfer of a suit filed by appellant in
the court of the District Judge, Dimapur, Nagaland to the court of
the District Judge at Gauhati, Assam - High Court rejected the
transfer application - In appeal before the Supreme Court, issue
was: Is the Supreme Court the sole repository of power in terms of
s. 25 of the CPC to direct transfer of a suit, appeal or other
proceeding from a Civil Court in one State to a Civil Court in another
State? Or, is it open for a High Court, if it is the common High
Court for two or more States, to entertain an application for transfer
u/s. 24 of the CPC and transfer a suit, appeal or other proceeding
from a Civil Court to another Civil Court, both of which are
subordinate to such High Court but situate in different States in
relation to which it exercises jurisdiction, for consideration and
decision - Held: A true and proper interpretation of s.25 of the
CPC leads to conclusion that same applies to inter-State transfer of
a suit, appeal or other proceeding where both States have a High
Court in terms of Art.214 of the Constitution and not to a transfer
where both States have a common High Court under Art. 231 -
Power u/s. 24 of the CPC can be exercised by the High Court even
for inter-State transfer of a suit, appeal or other proceeding, if it is
the common High Court for two or more States under Art. 231 of
the Constitution and both the Civil Courts (transferor and transferee)
are subordinate to it - Judgment of High Court set aside - Gauhati
High Court to now decide the application u/s. 24 of CPC afresh.
Code of Civil Procedure, 1908 - ss.24, 25 - Interpretation of
- Held: A narrow interpretation of s.25 imposing a bar for
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entertainment of an application u/s. 24 for transfer of a suit, appeal
or other proceeding by a common High Court like the Gauhati High
Court inter-se the four States in relation to which it exercises
jurisdiction could place a heavy burden and might pose an
insurmountable obstacle for litigants of the far-flung areas of the
North-East, if they were made to approach Supreme Court for such
transfer on the specious ground that the Civil Court to which the
same is proposed to be transferred is in a State other than the State
in which the suit has been instituted.
Interpretation of Statutes - An interpretation of the law that
seeks to address the mischief, that is consistent with the Constitution
and promotes constitutional objectives and that which responds to
the needs of the nation must be adopted.
Allowing the appeal, the Court
HELD : 1. Section 24 of the CPC is a general power of
'transfer and withdrawal' capable of being invoked by the High
Courts at any stage either suo motu without notice or on the
application of any of the parties after notice, whereas section 25
confers exclusive power on the Supreme Court, on the application
of either of the parties and after notice, to transfer suits, etc.
from the Courts stated therein. While section 24 is part of the
general law, section 25 is the special law. Law is well-settled, and
referring to the decision in Amarendra Pratap Singh vs. Tej
Bahadur Prajapati, that a general law cannot defeat the provisions
of a special law to the extent to which they are in conflict; else, an
effort has to be made at reconciling the two provisions by
homogenous reading. What, therefore, needs to be seen and
appreciated is whether there is any conflict or inconsistency
between the general law (section 24) and the special law (section
25) for the former to yield to the latter, and ascertain whether the
High Court still has the jurisdiction under the general law to order
an inter-State transfer notwithstanding th

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 [2023] 3 S.C.R. 985
985
SHAH NEWAZ KHAN & ORS.
v.
STATE OF NAGALAND & ORS.
(Civil appeal no. 1497 of 2023)
FEBRUARY 28, 2023
[HRISHIKESH ROY AND DIPANKAR DATTA, JJ.]
Code of Civil Procedure, 1908 - ss.24, 25 - Constitution of
India - Arts. 214, 231 - Suit - Transfer of - Appellant-plaintiff
moved an application u/s. 24 of CPC before the Gauhati High Court
(Common High Court for the states of Assam, Nagaland and two
other states) for an order to transfer of a suit filed by appellant in
the court of the District Judge, Dimapur, Nagaland to the court of
the District Judge at Gauhati, Assam - High Court rejected the
transfer application - In appeal before the Supreme Court, issue
was: Is the Supreme Court the sole repository of power in terms of
s. 25 of the CPC to direct transfer of a suit, appeal or other
proceeding from a Civil Court in one State to a Civil Court in another
State? Or, is it open for a High Court, if it is the common High
Court for two or more States, to entertain an application for transfer
u/s. 24 of the CPC and transfer a suit, appeal or other proceeding
from a Civil Court to another Civil Court, both of which are
subordinate to such High Court but situate in different States in
relation to which it exercises jurisdiction, for consideration and
decision - Held: A true and proper interpretation of s.25 of the
CPC leads to conclusion that same applies to inter-State transfer of
a suit, appeal or other proceeding where both States have a High
Court in terms of Art.214 of the Constitution and not to a transfer
where both States have a common High Court under Art. 231 -
Power u/s. 24 of the CPC can be exercised by the High Court even
for inter-State transfer of a suit, appeal or other proceeding, if it is
the common High Court for two or more States under Art. 231 of
the Constitution and both the Civil Courts (transferor and transferee)
are subordinate to it - Judgment of High Court set aside - Gauhati
High Court to now decide the application u/s. 24 of CPC afresh.
Code of Civil Procedure, 1908 - ss.24, 25 - Interpretation of
- Held: A narrow interpretation of s.25 imposing a bar for
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entertainment of an application u/s. 24 for transfer of a suit, appeal
or other proceeding by a common High Court like the Gauhati High
Court inter-se the four States in relation to which it exercises
jurisdiction could place a heavy burden and might pose an
insurmountable obstacle for litigants of the far-flung areas of the
North-East, if they were made to approach Supreme Court for such
transfer on the specious ground that the Civil Court to which the
same is proposed to be transferred is in a State other than the State
in which the suit has been instituted.
Interpretation of Statutes - An interpretation of the law that
seeks to address the mischief, that is consistent with the Constitution
and promotes constitutional objectives and that which responds to
the needs of the nation must be adopted.
Allowing the appeal, the Court
HELD : 1. Section 24 of the CPC is a general power of
'transfer and withdrawal' capable of being invoked by the High
Courts at any stage either suo motu without notice or on the
application of any of the parties after notice, whereas section 25
confers exclusive power on the Supreme Court, on the application
of either of the parties and after notice, to transfer suits, etc.
from the Courts stated therein. While section 24 is part of the
general law, section 25 is the special law. Law is well-settled, and
referring to the decision in Amarendra Pratap Singh vs. Tej
Bahadur Prajapati, that a general law cannot defeat the provisions
of a special law to the extent to which they are in conflict; else, an
effort has to be made at reconciling the two provisions by
homogenous reading. What, therefore, needs to be seen and
appreciated is whether there is any conflict or inconsistency
between the general law (section 24) and the special law (section
25) for the former to yield to the latter, and ascertain whether the
High Court still has the jurisdiction under the general law to order
an inter-State transfer notwithstanding the special law vesting
the Supreme Court with such power of transfer. There has to be
an inconsistency between the two so as to apply the maxim
generalia specialibus non derogant. The jurisdiction conferred on
the Supreme Court pursuant to the amendment of section 25 of
the CPC in 1976 though special, invocation of the jurisdiction of
the High Court under section 24 may not come in conflict and
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defeat section 25, if jurisdiction is still found available to be
exercised in a given case under the former without doing violence
to the latter. [Para 37][1006-H; 1007-A, D-G]
2. A High Court ~ howsoever big or small, old or new ~ is
as much a Constitutional Court as this Court is and enjoys wide
ranging powers vested in it by law. No doubt, the power under
section 25 is a special power, but the common High Courts of the
country ought not to read section 24 of the CPC in a manner as if
the power of the Supreme Court under section 25 to order an
inter-State transfer is available to be exclusively exercised by it
in all cases of inter-State transfer, thereby denuding the common
High Courts of the country of their jurisdiction by mere reference
to involvement of an inter-State transfer and without anything
more being looked at. [Para 42][1009-G-H; 1010-A-B]
3. In opinion of this Court, an approach to construe section
25 of the CPC has to be fair, pragmatic, reasonable and realistic.
Any construction of section 25 which would impede "access to
justice", considered to be a Fundamental Right, has to be
eschewed. A narrow interpretation of section 25 imposing a bar
for entertainment of an application under section 24 for transfer
of a suit, appeal or other proceeding by a common High Court
like the Gauhati High Court inter-se the four States in relation to
which it exercises jurisdiction could place a heavy burden and
might pose an insurmountable obstacle for litigants of the farflung areas of the North-East, if they were made to approach this
Court for such transfer on the specious ground that the Civil
Court to which the same is proposed to be transferred is in a
State other than the State in which the suit has been instituted.
An interpretation of the law that seeks to address the mischief,
that is consistent with the Constitution and promotes
constitutional objectives and that which responds to the needs of
the nation must be adopted. If "access to justice" has to be real,
it becomes the moral responsibility of the Supreme Court, the
supreme guardians/protectors of the rights of people guaranteed
by the Constitution and the laws, not to construe the substantive
part in section 25 of the Code in a pedantic manner to bring about
a situation that would thwart the initiative of making "access to
justice" real. [Para 46][1012-C-F]
SHAH NEWAZ KHAN v. STATE OF NAGALAND
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4. In view of the aforesaid discussions, the issue is answered
by concluding that:
(i) a true and proper interpretation of section 25 of the CPC
lead to the conclusion that the same applies to inter-State transfer
of a suit, appeal or other proceeding where both States have a
High Court in terms of Article 214 of the Constitution and not to
a transfer where both States have a common High Court under
Article 231 thereof; and
(ii) the power under section 24 of the CPC can be exercised
by the High Court even for inter-State transfer of a suit, appeal
or other proceeding, if it is the common High Court for two or
more States under Article 231 of the Constitution and both the
Civil Courts (transferor and transferee) are subordinate to it.
[Para 48][1013-A-D]
Durgesh Sharma vs. Jayshree (2008) 9 SCC 648 :
[2008] 13 SCR 1056- distinguished.
D. Saibaba v Bar Council of India & Anr. (2003) 6
SCC 186 : [2003] 3 SCR 1209; Amarendra Pratap
Singh vs. Tej Bahadur Prajapati (2004) 10 SCC 65 :
[2003] 6 Suppl. SCR 42 - referred to.
Pomi Sengupta vs. Biswajit Sengupta (2015) 6 GLR
396; Megha Jain vs. Kartik Jain (2019) 6 GLR 379;
Chalasani Deepthi vs. Chalasani Krishna Chaitanya
2015 SCC OnLine Hyd 978; Irene Blanch Khera vs.
Glenn John Vijay 2018 (6) Mh. L.J. 199 - referred to.
12th Edition of 'Principles of Statutory Interpretation'
at page 131 (Para 6 (e))
Case Law Reference
[2008] 13 SCR 1056
distinguished
Para 4
[2003] 3 SCR 1209
referred to
Para 6 (g)
[2003] 6 Suppl. SCR 42
referred to
Para 37
CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil Appeal
No.1497 of 2023.
From the Judgment and Order dated 10.12.2015 of the High Court
of Gauhati in TR No.68 of 2015.
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With
Transfer Petition (c) No.307 of 2016.
Parthiv K. Goswami, Sr. Adv., Ms. Ragini Pandey, Ms. Atiga
Singh, Ms. Diksha Rai, Advs. for the Appellants.
K N Balgopal, Sr. Adv., Ms. K. Enatoli Sema, Ms. Limayinla
Jamir, Amit Kumar Singh, Ms. Chubalemla Chang, Prang Newmai, Vivek
Narayan Sharma, Ms. Mahima Bhardwaj, Ms. Laksha Bhavnani,
Pranshu Kausha, Shubham Awasthi, Rajeev Kumar Jha, Ram Kumar,
Advs. for the Respondents.
The Judgment of the Court was delivered by
DIPANKAR DATTA, J.
1. Leave granted.
THE ISSUE
2. An issue, pristinely legal and novel, emerges for decision. It is
novel in the sense that although three different High Courts of the country
have taken views which are entirely consistent, except the view taken in
the judgment and order under challenge of the Gauhati High Court which
impliedly stands overruled by a larger Bench of the same High Court,
this Court hitherto might not have had the occasion to deal with such an
issue and decide either way.
3. Shortly put, the issue is:
Is the Supreme Court the sole repository of power in terms of
section 25 of the Code of Civil Procedure (for brevity 'the CPC')
to direct transfer of a suit, appeal or other proceeding from a Civil
Court in one State to a Civil Court in another State? Or, is it open
for a High Court, if it is the common High Court for two or more
States, to entertain an application for transfer under section 24 of
the CPC and transfer a suit, appeal or other proceeding from a
Civil Court to another Civil Court, both of which are subordinate
to such High Court but situate in different States in relation to
which it exercises jurisdiction, for consideration and decision?
FACTS AND THE ORDER UNDER CHALLENGE
4. The facts leading to presentation of this appeal reveal that the
appellants having instituted a suit for declaration of right, title and interest
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as well as for perpetual injunction and damages in the court of the District
Judge at Dimapur, Nagaland sometime in 2007, failed to prosecute it in
the right earnest allegedly due to hostile circumstances created by the
private defendants in the suit resulting in dismissal and restoration thereof
on three occasions. Pleading why it is impossible for them to continue
with prosecution of the suit at Dimapur, the appellants moved an
application under section 24 of the CPC before the Gauhati High Court
for an order to transfer the suit to the court of the District Judge at
Guwahati, Assam. A learned Judge of the Gauhati High Court, which
presently happens to be the common High Court for the States of Assam,
Nagaland, Mizoram and Arunachal Pradesh, presiding over the Bench
at the principal seat at Guwahati, rejected the application for transfer by
a judgment and order dated 10th December, 2015. While so rejecting,
the learned Judge followed His Lordship's previous decision in Pomi
Sengupta vs. Biswajit Sengupta1 which, in turn, had entirely relied on
the decision of this Court in Durgesh Sharma vs. Jayshree2. The
judgment and order of rejection of the application under section 24 of
the CPC is under challenge in this appeal.
5. The appellants, by way of abundant caution, have also applied
before this Court under section 25 of the CPC seeking the same relief
that was disallowed by the learned Judge.
APPELLANTS' CONTENTIONS
6. Appearing in support of the appeal, Mr. Goswami, learned senior
counsel contended that:
a. Article 214 of the Constitution of India ordains that there shall
be a High-Court for each State. Article 231 of the Constitution of India
provides for the establishment of a common High Court for two or more
States.
b. The relevant provisions of the CPC for the purpose of a decision
on the present dispute are sections 22 to 25 read with section 3 thereof
dealing with subordination of courts.
c. The power of the High Court and the District Courts to direct
transfer of proceedings is provided in section 24 of the CPC.
d. The facts of the instant case clearly satisfy all the ingredients
of section 24 CPC, more particularly, sub-clause (ii) of clause (b) of
sub-section (1) thereof. A bare perusal of such provision 24 would indicate
1 (2015) 6 GLR 396
2 (2008) 9 SCC 648
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that the High Court may, at any stage, direct transfer of proceedings
pending before it to any court subordinate to it, or transfer proceedings
pending in any court subordinate to it to itself or to any other court
subordinate to it. Thus, the emphasis under the said provision is on the
expression "court subordinate to it". Section 3 of the CPC, inter alia,
defines the courts subordinate to the High Court. Thus, on a plain reading
of section 24 of the CPC, it is evident that the common High Court, i.e.,
the Gauhati High Court, has the power and jurisdiction to direct interState transfer of proceedings, provided both the transferor and transferee
courts are subordinate to it, and fall within its territorial jurisdiction, which
is the case here.
e. On a harmonious construction of section 24 and section 25 of
the CPC, it is clear that the latter will apply only to inter-State transfer
of proceedings between two States where the two States in question
have different High Courts, whereas, in a case involving inter-State
transfer of proceedings within the territorial jurisdiction of a common
High Court, the common High Court would have the power and jurisdiction
to direct inter-State transfer of proceedings of the nature stated above,
in exercise of its power under section 24 of the CPC.
f.It is a settled proposition of law that in construing a provision,
the consequences that befall on a particular interpretation of a provision
is a relevant consideration. Justice G.P. Singh in his treatise3 has observed
thus:
4. REGARD TO CONSEQUENCES
If the language used is capable of hearing more than one
construction, in selecting the true meaning, regard. Must be
had to the consequences resulting from adopting the alternative
constructions. A construction that results in hardship, serious
inconvenience, injustice, absurdity, or anomaly or which leads
to inconsistency or uncertainty and friction in the system which
the statute purports to regulate has to be rejected and
preference should be given to that construction which avoids
such results.
g. This observation was quoted with approval by the Supreme
Court in paragraph 17 of its decision in D. Saibaba v Bar Council of
India & Anr.4.
3 12th Edition of 'Principles of Statutory Interpretation' at page 131
4 (2003) 6 SCC 186
SHAH NEWAZ KHAN v. STATE OF NAGALAND
[DIPANKAR DATTA, J.]
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h. Therefore, the aforementioned observation would also lend
support to the submission of the appellants in as much as it would be
more convenient for litigants within the territory of the common High
Court to approach the Gauhati High Court for seeking transfer.
7. Mr. Goswami also cited three other decisions. The first is a
decision of the larger bench of the Gauhati High Court in Megha Jain
vs. Kartik Jain5. This decision has overruled Pomi Sengupta (supra),
on which the impugned judgment and order is premised. The second is a
decision of the (undivided) Andhra Pradesh High Court in Chalasani
Deepthi vs. Chalasani Krishna Chaitanya6 and the last a decision of
the Bombay High Court in Irene Blanch Khera vs. Glenn John Vijay7.
8. Based on his aforesaid submissions, Mr. Goswami urged us to
set aside the order under challenge and to remit the matter to the Gauhati
High Court for fresh consideration of the application of the appellants
under section 24 of the CPC. In the alternative, he submitted that the
application under section 25 may be considered by us on its own merits.
CONTENTIONS OF THE RESPONDENTS 1 TO 3
9. Opposing the appeal, Mr. Balgopal, learned senior counsel for
the State of Nagaland and its officers, contended as follows:
a. A brief issue with regard to the scope and ambit of section 24
vis-à-vis section 25 of the CPC has arisen before this Court in the instant
case in view of the peculiar circumstances wherein two States share a
common High Court as provided under Article 231 of the Constitution of
India.
b. Section 24(1)(b), CPC gives power to the High Court to
withdraw any suit, appeal or other proceeding pending in any court
subordinate to it and to transfer the same for trial or disposal to any
Court subordinate to it which is competent to try or dispose of the same.
As the State of Nagaland does not have a separate High Court,
consequently all courts functioning in the State of Nagaland are
subordinate to the Gauhati High Court, being the common High Court
for the States of Assam, Nagaland, Mizoram and Arunachal Pradesh.
c. However, in order to appreciate whether the common High
Court has the power to withdraw any suit, appeal or other proceeding
5 (2019) 6 GLR 379
6 2015 SCC OnLine Hyd 978
7 2018 (6) Mh. L.J. 199
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pending before any Court subordinate to it from one State and to transfer
the same to any Court subordinate to it, in another State, the provisions
of both sections 24 and 25 of the Code will have to be examined as it
involves an inter-State transfer and not an intra-State transfer simplicitor.
d. To appreciate the true import and meaning of the provisions of
section 25(1), the said provision will have to be read in two parts as it
contains two-fold power to direct any suit, appeal or other proceeding to
be transferred:
i.
From one High Court to another High Court; or
ii.
From one Civil Court in one State to another Civil Court in
any other State.
This interpretation is substantiated by the observation made by
this Court in Durgesh Sharma (supra).
e. Section 25 is the only provision in the CPC, which refers to
transfer of a case from a Civil Court in one State to a Civil Court in
another State. Incidentally, the appellants themselves are asking for this
relief.
f. Report of the Joint Committee, Lok Sabha of the Code of Civil
Procedure (Amendment) Bill 1974 which was passed on 1st April, 1976
shows that this issue was raised by one of the North-Eastern States, i.e.,
State of Meghalaya with regard to conflict between sections 24 and 25
insofar as the North-East area is concerned and reading of the minutes
suggests that the Committee assured to look into the issue.
g. In view of the specific provision in section 25(1) of the CPC, it
is only the Supreme Court and no other court which has the power to
direct transfer of the suit instituted by the appellants from the Civil Court
in Dimapur, Nagaland to the Civil Court in Guwahati, Assam, if at all any
ground is set up therefor.
10. In view of the aforesaid contentions, it was submitted by Mr.
Balgopal that the impugned judgement needs no interference and deserves
to be upheld.
ARGUMENTS OF THE RESPONDENTS 4 AND 5
11. Mr. Sharma, learned counsel appearing for the respondents 4
and 5, advanced the following arguments:
SHAH NEWAZ KHAN v. STATE OF NAGALAND
[DIPANKAR DATTA, J.]
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a. Power to effect inter-State transfer of any suit, appeal or other
proceeding is not available to be exercised by a High Court in terms of
section 24 of the CPC since such power is expressly and exclusively
provided in section 25 thereof, to be exercised only by the Supreme
Court.
b. Reliance placed by the learned senior counsel for the appellants
on Durgesh Sharma (supra) is misplaced since that case is
distinguishable. The observations in paragraph 47 were made by this
Court to decide the issue captured in paragraph 3 and this Court had no
occasion to examine the issue in the light as it has occurred in the present
case. It is trite to submit that such an observation could at best be treated
as obiter dicta (defined as an incidental remark of a Judge's expression
of opinion uttered in court or in a written judgment, but not essential to
the decision and therefore not legally binding as a precedent).
c. Be that as it may, what has been held by this Court in paragraph
57 of Durgesh Sharma (supra) nullifies the point sought to be urged on
the behalf of the appellants.
d. In Megha Jain (supra), the Division Bench of the Gauhati
High Court has held that it has jurisdiction to exercise powers under
section 24 of the CPC read with section 23(1) and/or section 23(2) thereof
to transfer a suit, appeal or any other proceeding from one of the four
States under its jurisdiction to any other State under its jurisdiction for
trial. In paragraph 9 of Megha Jain (supra), reference has been made
to section 24 (1) (a) of the CPC to arrive at the conclusion that the High
Court or the District Court may, at any stage, transfer any suit etc.
pending before it to any court subordinate to it and that a transfer petition
seeking transfer from one State to any of the four States shall be
maintainable thereunder. The abovesaid conclusion is not the correct
exposition of law. Sections 22 to 24 of the CPC and section 25 thereof
are two different codes within the CPC and there is no overlapping in
relation to the domain where these two sets of codes operate.
e. A plain reading of section 22 of the CPC would show that the
words "several Courts" occurring in its last has been continued in section
23, while no such co-relation exists either between sections 22 and 25 or
sections 23 and 25. Therefore, application of section 23 together with
section 25 appears completely faulty. Also, in relation to the exercise of
power under section 24, the said power has been made available to even
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a District Court, which makes it amply clear that the power under section
24 is a continuation of sections 22 and 23 only.
f. Further, the power of transfer of suits under section 22 can be
exercised, "(W)here a suit may be instituted in any one of two or
more courts and is instituted in one of such courts". And this power
under section 22 is explained in section 23 for the purposes as to which
court an application for transfer may lie. Further, after the application is
made, under section 24, such power is explained as to how the same can
be exercised. Therefore, section 22 provides which of the suits, section
23 provides which of the courts and section 24 provides how such
transfers can be effected.
g. In contrast to the above, the power under section 25 has been
clearly defined and the same does not have any mention in sections 22
to 24 in the same manner as it occurs in section 25, categoric and precise.
Therefore, the legislative intent is clear that only under section 25 of the
CPC a direction that any suit, appeal or other proceeding may be
transferred from a Civil Court in one State to a Civil Court in any other
State and that can only be made by this Court.
12. Resting on the aforesaid arguments, Mr. Sharma too urged
that no case for interference had been made out by the appellants and
the appeal deserves dismissal.
THE RELEVANT PROVISIONS OF LAW
13. Sections 24 and 25 of the CPC being at the heart of the debate,
the same need to read carefully. To the extent relevant, the said provisions
read as follows:
"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 desire 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
SHAH NEWAZ KHAN v. STATE OF NAGALAND
[DIPANKAR DATTA, J.]
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(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 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.
***"
"25. Power of Supreme Court to transfer suits, etc.-
(1) On the application of a party, and after notice to the parties,
and after hearing such of them as desire to be heard, the Supreme
Court may, at any stage, if satisfied that an order under this section
is expedient for the ends of justice, direct that any suit, appeal or
other proceeding be transferred from a High Court or other Civil
Court in one State to a High Court or other Civil Court in any
other State.
***"
14. Prior to its amendment in 1976, section 25 of the Code read as
follows:
"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 State Government,
which may, by notification in the Official Gazette, transfer such
suit, appeal or proceeding to any other High Court.
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."
15. Since acceptance of the arguments of Mr. Balgopal and Mr.
Sharma would result in denuding a common High Court of the jurisdiction
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to even entertain an application under section 24 of the CPC for transfer
of a suit from a Civil Court in one State to a Civil Court of another State,
notwithstanding that exercise of jurisdiction by such High Court extends
to both such States, it is absolutely necessary to consider Chapter V of
the Constitution of India titled "(T)he High Courts in the States" and
more particularly the terms of Articles 214, 231, 227, 235 and 228 which,
to our mind, are of utmost relevance for deciding the legal issue. At the
same time, having regard to the terms of pre-amended section 25 of the
CPC, a peep into the pages of history as to how the Gauhati High Court
became the common High Court for the State of Assam and the other
States seems to be imperative.
16. Article 214 is clear that there shall be a High Court for each
State. Article 231, inserted in the Constitution by the Constitution (Seventh
Amendment) Act, 1956, is an ordainment that notwithstanding anything
contained in the preceding provisions of Chapter V, Parliament may by
law establish a common High Court for two or more States or for two or
more States and a Union territory. Article 227 is the recognition of the
power of superintendence of every High Court over all courts and tribunals
throughout the territories in relation to which it exercises jurisdiction.
The control over all District Courts and courts subordinate thereto, in
terms of Article 235, vests in the High Court. One other important
provision is Article 228. Article 228 empowers the High Court, subject
to its satisfaction that a case pending in a court subordinate to it involves
a substantial question of law as to the interpretation of the Constitution
and the determination of which is necessary for the disposal of the case,
to withdraw the case and (a) either dispose of the case itself, or (b)
determine the said question of law and return the case to the court from
which the case has been so withdrawn together with a copy of its
judgment on such question, whereupon the said court shall proceed to
dispose of the case in conformity with such judgment.
ORIGIN AND EVOLUTION OF THE COMMON HIGH
COURT
17. We now move on to note the origin and evolution of the common
High Court, i.e., the Gauhati High Court and the trajectory that it has
been ordained to follow in relation to the territories over which it exercises
jurisdiction.
18. The precursor of the Gauhati High Court was the High Court
of Assam, which was established on 5th April, 1948 in terms of the Assam
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High Court Order, 1948 (for brevity 'the 1948 Order') made by the
Governor General in exercise of power conferred by section 229 of the
Government of India Act, 1935 and as adopted by the India Provincial
Constitution (Amendment) Order, 1948. In terms of paragraph 4 thereof,
the High Court of Assam was conferred, in respect of the territories for
the time being included in the province of Assam, all such original, appellate
and other jurisdiction as, under the law in force immediately before the
prescribed day, was exercisable in respect of the said territories or any
part thereof, by the High Court in Calcutta or by the Governor of Assam
exercising the functions of a high court.
19. In 1962, by an Act of Parliament titled the State of Nagaland
Act, 1962 (for brevity 'the 1962 Act'), the State of Nagaland was formed.
While sub-section (1) of section 13 of the 1962 Act ordained that there
shall be a common high court called the High Court of Assam and
Nagaland, sub-section (3) thereof provided that expenditure in respect
of the salaries and allowances of the Judges of the common High Court
shall be allocated between the States of Assam and Nagaland in such
proportion as the President may by order determine.
20. The 1962 Act was followed by the North-Eastern Areas
(Reorganisation) Act, 1971 (for brevity 'the 1971 Act'). This enactment
contained provisions for the establishment of the States of Manipur and
Tripura and for the formation of the State of Meghalaya, and the Union
territories of Mizoram and Arunachal Pradesh, by reorganizing the existing
State of Assam. Part IV of the 1971 Act titled "High Court" contained
sections 28 to 43. Sections 28 and 29, being relevant are quoted below:
"28. Common High Court for Assam, Nagaland, Meghalaya,
Manipur and Tripura.- (1) On and from the appointed day,-
(a) the High Court of Assam and Nagaland shall cease to function
and is hereby abolished;
(b) there shall be a common High Court for the States of Assam,
Nagaland, Meghalaya, Manipur and Tripura to be called the Gauhati
High Court (the High Court of Assam, Nagaland, Meghalaya,
Manipur and Tripura);
(c) the Judges of the High Court of Assam and Nagaland holding
office immediately before that day shall, unless they have elected
otherwise, become on that day the Judges of the common High
Court:
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(2) Nothing in clause (a) of sub-section (1) shall prejudice or affect
the continued operation of any notice served, injunction issued,
direction given or proceedings taken before the appointed day by
the High Court of Assam and Nagaland under the powers then
conferred upon that Court."
"29. Jurisdiction of the common High Court.-On and from the
appointed day, the common High Court shall have, in respect of
the territories comprised in the States of Assam, Manipur,
Meghalaya, Nagaland and Tripura, all such jurisdiction, powers
and authority as under the law in force immediately before the
appointed day, are exercisable in respect of those territories by
the High Court of Assam and Nagaland or the Court of the Judicial
Commissioner for Manipur, or the Court of the Judicial
Commissioner for Tripura, as the case may be."
21. With the enactment of the State of Arunachal Pradesh Act,
1986 and the State of Mizoram Act, 1986, two new States were born.
Section 18 of the former and section 15 of the latter legislation, more or
less commonly worded, when read together would evince that a common
High Court for the States of Assam, Nagaland, Meghalaya, Manipur,
Tripura, Mizoram and Arunachal Pradesh to be called the Gauhati High
Court (the High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura,
Mizoram and Arunachal Pradesh) came into existence. The common
thread that runs through the developments of 1962, 1971 and 1986, noted
above, is that as and when the jurisdiction of the High Court of Assam
and thereafter the Gauhati High Court came to be enlarged and extended
to States other than Assam, all seven sister States in the North- Eastern
part of the country agreed to bear the expenditure in respect of the
salaries and allowances of the Judges of the common High Court as
shall be allocated amongst the States in such proportion by an order of
the President.
22. In view of the provisions of the 1971 Act, till little over a
decade back, the Gauhati High Court was the common High Court for
the seven sister states. The jurisdiction of the said High Court extended
throughout the territories of Assam, Nagaland, Tripura, Manipur,
Meghalaya, Mizoram and Arunachal Pradesh.
23. However, the 1971 Act came to be amended by the NorthEastern Areas (Re-organisation) and Other Related Laws (Amendment)
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Act, 2012 (for brevity 'the Amendment Act'). It established separate
High Courts for the States of Meghalaya, Manipur and Tripura.
Accordingly, the definition of "common High Court" in section 2(d) of
the 1971 Act was amended. Apart from insertion of sections 28A to
28K between sections 28 and 29, the Amendment Act, inter alia, also
introduced a proviso in sub-section (1) of section 28, reading as follows:
"Provided that on and from the commencement of the NorthEastern Areas (Reorganisation) and Other Related Laws
(Amendment) Act, 2012, the common High Court shall be the
High Court for the States of Assam, Arunachal Pradesh, Mizoram
and Nagaland and shall cease to have its jurisdiction, powers and
authority for the States of Meghalaya, Manipur and Tripura."
24. Hence, today, the Gauhati High Court is the common High
Court exercising jurisdiction throughout Assam, Nagaland, Mizoram and
Arunachal Pradesh; a fortiori, all Civil Courts in these four States are
subordinate to the same High Court, i.e., the Gauhati High Court. Thus,
it is a High Court which earlier exercised its jurisdiction over seven
different States and is presently exercising jurisdiction over four different
States. This, by itself, is a unique feature which stands unmatched in the
judicial annals of the country post-independence.
25. We can take judicial notice that Judges of the Gauhati High
Court in the past have been elevated from amongst advocates and judicial
officers hailing from the aforesaid States.
26. Therefore, so far as judicial administration is concerned, in
terms of Article 231 of the Constitution, the Gauhati High Court is the
High Court, inter alia, for the State of Assam as well as for the State of
Nagaland.
PRE-AMENDED SECTION 25, CPC
27. Before proceeding further, we may now refer to the preamended section 25 of the Code for the purpose of understanding what
was the mischief that the Parliament intended to address by radically
altering its relevant terms resulting in its substantial substitution. Bare
perusal of the pre- amended provision clearly reflects that its scope and
applicability were rather limited. Unless the State Governments were
ad idem, a transfer of a suit, appeal or other proceeding from a Civil
Court in one State to a Civil Court in another State was not a permissible
option. That apart, such transfer of a suit, appeal or other proceeding
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instead of being effected by a judicial act was left to an administrative
act and, that too, only if the two State Governments were in agreement.
The Law Commission having recommended an amendment, section 25
of the CPC came to be amended by the Amendment Act 104 of 1976. A
contrast of the pre-amended and present version of section 25 is clearly
suggestive of the distinctive variance qua the authority to exercise the
power of transfer. At this juncture, the Statement of Objects and Reasons
(for brevity 'the SOR') for amending section 25 may also be noted:
"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 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."
28. Thus, with the amendment of section 25, a serious impediment
in administration of justice by the courts of law was remedied by
conferment of power on this Court to decide on inter-State transfer of
any suit, appeal or other proceeding pending in a Civil Court of one State
to a Civil Court of another State. Since under the pre-amended section
25, such a transfer could be made by the transferor State only if the
transferee State were to consent to it, it was rightly observed in the
SOR that it was not the function of the States to decide on such transfer.
Though advisedly, we presume, that there is absence of any reference
in the SOR about the uncertainty centering around cooperation or the
lack of it between the relevant States prior to a transfer of the nature
referred to in section 25 being effected, it does not take too long to
comprehend that Parliament did proceed in the right direction and sought
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to address the mischief that could ensue if the two States were not on
the same page resulting in depriving a litigant of having his cause
vindicated. Be that as it may.
CONSIDERATION OF THE DECISIONS
29. Having surveyed the provisions of the Constitution relating to
the High Courts in general and how the Gauhati High Court has taken
shape as the common High Court for, inter alia, the States of Assam
and Nagaland, it is time to look into the decision in Durgesh Sharma
(supra), cited by Mr. Balgopal and by Mr. Goswami as well as the other
decisions cited by him for the appellants.
30.