RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

IIT KHARAGPUR

Report submitted in fulfilment of internal evaluation

POWER OF THE SUPREME

COURT TO TRANSFER CASES
CIVIL PROCEDURE CODE

PRANIT KULKARNI
17IP63016
LLB IST YEAR
 Power of the supreme court to transfer cases

The Supreme Court of India being the highest Court in the country has the
constitutional responsibility of overseeing the effective functioning of all the subordinate
courts including High Courts. It’s a moral responsibility for the Supreme Court to uphold the
constitutional scheme of a hierarchical structure. However, it is also worthy to be noted that
the highest court of the country doesn’t dwell above the canons of Indian Constitution. The
Supreme Court derives its powers from the Constitution itself.

This article presents a brief overview about the Powers of Supreme Court to transfer
cases. It primarily focusses upon the provisions mentioned in the Code of Civil Procedure,
1908, the corresponding power envisaged in the Constitution and the relevant Supreme
Court Rules, as amended to that effect.

CONSTITUTIONAL AMENDMENT

The power of the Supreme Court to transfer cases has been provided for through the Forty-
Second Amendment in 1976 bringing it into effect since 1st February 1977. A new Article
139A was inserted in the Constitution, thereby widening the powers of India’s highest Court.
Article 139A states as follows:

139A. Transfer of certain cases

(1) Where cases involving the same or substantially the same questions of law are pending
before the Supreme Court and one or more High Courts or before two or more High Courts
and the Supreme Court is satisfied on its own motion or an application made by the Attorney
General of India or by a party to any such case that such questions are substantial questions
of general importance, the Supreme Court may withdraw the case or cases pending before
the High Court or the High Courts and dispose of all the cases itself: Provided that the
Supreme Court may after determining the said questions of law return any case so
withdrawn together with a copy of its judgment on such questions to the High Court from
which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to
dispose off the case in conformity with such judgment

(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer
any case, appeal or other proceedings pending before any High Court to any other High
Court

Clause (2) of this Article is of much importance as regards the discussion in this
paper. It must be noted that the phrase ‘if it deems it expedient so to do for the ends of
justice’, confers discretionary powers on the Court in a very wide sense. The Court, on
presentation of such a transfer petition, is not bound to transfer the cases. However, it may
deliberate upon the same in accordance with the Supreme Court Rules, framed from time to
time and only after it has satiated its judicial mind, may, either effect the sought transfer or
dismiss the petition.

Section 25 of the Code of Civil Procedure, 1908 provides for the procedural aspects in this
regard. In light of the Constitutional amendment, the Code of Civil Procedure, 1908 was
amended to accommodate the said power. One may say that such an inclusion is completely
unnecessary since the same can be achieved by the Court exercising its powers under Article
139A and following the Supreme Court Rules to enforce the procedural part. However, a
quick look at Section 25 of the Civil Procedure Code, 1908, as it stood before the said
Amendment, would show that it indeed was required to be amended.

HISTORY

Section 25, as it originally stood, empowered the State Government to transfer a suit,
appeal or other proceeding pending in a High Court presided over by a single Judge to any
other High Court with the consent of the State Government of that Court. Such being the
case, it was substituted by the Code of Civil Procedure (Amendment) Act, 1976 and was
effected from 1st February 1977. It was effected along with the Forty Second Constitutional
Amendment mentioned above.
CODE OF CIVIL PROCEDURE, 1908

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.

(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.

OBJECTIVE: -

Section 25 of the Code of Civil Procedure provides for the implementation of the law
laid down in the Constitution. It may be noted that, while Supreme Court has been
empowered to transfer cases at its sole discretion, it should not exercise its powers in a way
which would affect the rights of the parties adversely. The exercise of such a power must
also not be derogatory to the principles of natural justice.
 The primary and paramount object of every procedural law is to facilitate justice.
Justice can only be achieved if the court deals with both the parties present before it
equally, impartially and even-handedly. Hence, though a plaintiff has the right to choose his
own forum, with a view to administer justice fairly, impartially, and even-handedly, a court
may transfer a case from one court to some other court.1

HOW THE PROCEDURE WORKS: -

Application of Transfer from

either Party

Motion
supported by an
affidavit
Notices to be served to the
parties

Hearing the parties if

desired by them

Court, if satisfied, may

direct the transfer so
desired

1
Pushpa Devi v. Jai Narain, (1992) 2 SCC 676
 The primary object of issuing notice to the opposite party is to give them an
opportunity of raising any objections or coming up with any new contentions and to give
hearing against the proposed action of transfer. The court must decide on the transfer
petition after hearing such objections of the opposite party. This is to ensure that the
principles of natural justice are followed.2 However, the Court must adopt a pragmatic and
diligent approach while deciding such a transfer. The Court while deciding the question
must bear in mind two conflicting interests: -

1. As a dominus litis, the right of the plaintiff to choose his own forum; and
2. The power and duty of the court to assure fair trial and proper dispensation of
justice.

The paramount consideration would be the requirement of justice.

The search must be for justice and the court must be satisfied that justice could more likely
to be done between the parties by refusing to allow the plaintiff to continue his suit in the
forum of his own choice. The burden of establishing sufficient grounds for transfer is on the
applicant. The approach of the court should be pragmatic and not theoretical and the
totality of facts and circumstances should be considered.3

BALANCE OF CONVENIENCE: -

A Court while transferring any suit has to keep in mind the relevant and germane
considerations. The Courts have time and again held that balance of convenience is of prime
consideration for transfer of a suit. The expression “balance of convenience” is a question to
be decided on case to case basis. Balance of convenience is neither the convenience of the
plaintiff alone nor of the defendant alone but of both.

Determining factors for Balance of convenience: -

I. Convenience or Inconvenience of the plaintiff and the right of the plaintiff to choose
his own forum.

2
Furrunjote v. Deon Pandey, (1878) 2 Cal CR 352
3
‘Civil procedure with Limitation Act, 1963’, by C K Takwani (Eighth edition), (p. 719)
 II. Convenience or Inconvenience of the defendant
III. Convenience or Inconvenience of the witnesses required for a proper trial of the suit
IV. Convenience or Inconvenience of a particular place of trial having regard to the
nature of the evidence on the main points involved in the suit and also having regard
to the doctrine of “forum conveniens”
V. Nature of issues in the suit.4

DEALING WITH THE MATTER SO TRANSFERRED: -

The Supreme Court in transferring any such suit, appeal or other proceeding, may
issue directions to the concerned court as to how the said matter in question is to be
conducted. In the absence of which sub-section (3) of Section 25 of Code of Civil Procedure
makes it abundantly clear that the transferee Court is at liberty to either re-try the case or
proceed form the stage at which the case was transferred to it.

The next question which arises is as to which laws the case so transferred would be subject
to?

Section 25(5) of the Code of Civil Procedure explicitly provides for the same. A case so
transferred would by governed by the law which would have been applied by the Court in
which the suit, appeal or proceeding was originally instituted.

DISMISSAL OF SUCH A TRANSFER REQUEST: -

As has been mentioned above, transferring of a suit, appeal or other such

proceeding is at the sole discretion of the Supreme Court. In cases where the Court feels
that the transfer application was frivolous or vexatious, it may come down heavily upon the
applicant. In such cases, the applicant would be made to compensate any one who has
opposed the application. The compensation, not exceeding two thousand rupees, would be

4
‘Civil procedure with Limitation Act, 1963’, by C K Takwani (Eighth edition), (pp. 716-717)
decided by the Supreme Court itself. This is provided in Section 25(4) of the Code of Civil
Procedure.

SUPREME COURT RULES

Besides the general procedure mentioned in the Code of Civil Procedure, the specifics have
been mentioned in Order XLI of the Supreme Court Rules.

APPLICATIONS FOR TRANSFER UNDER ARTICLE 139A(2) OF THE CONSTITUTION AND

SECTION 25 OF THE CODE OF CIVIL PROCEDURE, 1908
I. Every petition under article I39A(2) of the Constitution or section 25 of the Code of Civil
Procedure, 1908, shall be in writing. It shall state succinctly and clearly all relevant facts and
particulars of the case, the name of the High Court or other Civil Court in which the case is
pending and the grounds on which the transfer is sought. The petition shall be supported by
an affidavit.
2. The petition shall be posted before the Court for preliminary hearing and orders as to
issue of notice. Upon such hearing the Court, if satisfied that no prima facie case for transfer
has been made out, shall dismiss the petition and if upon such hearing the Court is satisfied
that a prima facie case for granting the petition is made out, it shall direct that notice be
issued to the parties in the case concerned to show cause why the case be not transferred.
A copy of the Order shall he transmitted to the High Court concerned.
3. The notice shall be served not less than four weeks before the date fixed for the final
hearing of the petition. Affidavits in opposition shall be filed in the Registry not later than
one week before the date appointed for hearing and the affidavit in reply shall be filed not
later than two days preceding the day of the hearing of the petition. Copies of affidavits in
opposition and in reply shall be served on the opposite party or parties and the affidavits
shall not be accepted in the Registry unless they contain an endorsement of service signed
by such party or parties.
4. The petition shall thereafter be listed for final hearing before the Court.
5. Save as otherwise provided by the rules contained in this Order the provisions of other
orders (including Order LI) shall, so far as may he, apply to petition under this Order.
CASE LAWS

In the case of Vinisha Jitesh tolani @ Manmeet Laghmani v. Jitesh Kishore Tolani5,
2009, the dispute was that of a matrimonial nature. The petitioner before getting married
had been living primarily in United Kingdom and then in Delhi. The marriage was solemnised
in Goa and thereafter the annulment proceedings were filed by the Respondent in Goa. The
petitioner pleaded for the Court to transfer these proceedings to Delhi since she had been
residing there for 10 years and was in a better position to contest the suit there. Also, it was
pleaded that, by virtue of Hindu Marriage Act, 1956, the proceedings ought to be filed at a
place where the wife resides. The court thus allowed the Transfer petition and transferred
the matter from the Court of Civil Judge, Senior Division, at Vasco-da-gama, Goa, to the
Family Court at Tis Hazari, Delhi, for disposal in accordance with law.

The Supreme Court in the case of S.P.Gupta v. Union of India6 transferred all the
petitions filed before different High Courts to the Supreme Court in order to have an early
and decisive statement of law. However, in the case of DTC v. Mazdoor Congress, 19917, it
has been held that Article 139A cannot be availed of by the Supreme Court to withdraw
cases pending before a Special Judge under the same High Court and to transfer them to
that High Court.

In the case of Santhini v. Vijaya Venkatesh8, The Family Court transferred the case as prayed
for and further observed that it would be open to the transferee Court to conduct the
proceedings or record the evidence of the witnesses who were unable to appear in Court by
way of videoconferencing. The matter reached the Supreme Court on a question of law as
to whether in a transfer petition, the direction of video conferencing can be given. The
Court held through a majority of 2:1 that, “…the discretion has to rest with the Family Court
and it has to be exercised after the Court arrives at a definite conclusion that the settlement
was not possible and both parties file a joint application or each party filing his/her consent
memorandum seeking hearing by videoconferencing.”

5
AIR2010SC1915
6
AIR 1982 SC 149
7
AIR 1991 SC 101
8
(MANU/SC/1274/2017)
 This was held by CJI Dipak Misra and Justice A.M.Khanwilkar, who observed through
their judgment that in family disputes, a Family Court does take the assistance of
institutions and professionals engaged in promoting welfare of the family. The purpose of
Family Court Act, 1984 is to try for a reconciliation between the parties besides ensuring
them hassle free access to justice. In the majority judgment, it has been held that for the
purpose of effective reconciliation, it is required for both the parties to meet in person at
the same place and at the same time. Hence, a settlement should be aimed first.

It is worthwhile to note the dissenting judgment from Justice Dr. D.Y.Chandrachud.

He holds that the Family Courts Act, 1984 had been enacted at a time when modern
technology, which enables persons separated by spatial distances to communicate with each
other face to face, was not in practice. Section 9 of the Family Courts Act, 1984 provide for
the Family courts to determine how to structure a settlement process. The Family Court has
to endeavour to “assist and persuade” parties to arrive at a conclusion. The proposition that
video conferencing can be permitted only after the conclusion of settlement proceedings
(resultantly excluding it in the settlement process), and thereafter only when both parties
agree to it does not accord either with the purpose or the provisions of the Family Courts Act
1984. Confining it to the stage after the settlement process and in a situation where both
parties have agreed will seriously impede access to justice.