REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5857      OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO. 8327 OF 2007

DURGESH SHARMA …  APPELLANT

VERSUS

JAYSHREE …  RESPONDENT

J U D G M E N T C.K. THAKKER, J.

1. Leave granted.

2 A  short  but  interesting  question  of

law has been raised before this Court in the

present appeal as to the power, authority and

jurisdiction  to  transfer  suits/appeals/other

proceedings  by  a  High  Court  from  one  Court

subordinate to it to another Court subordinate

to another High Court.

Factual Matrix

3. To appreciate the controversy, it is

appropriate to set out facts of the case.  The

appellant herein Durgesh Sharma is the husband

of  the  respondent  Smt.  Jayshree  Sharma.

Marriage  of  the  parties  was  solemnized  at

Malegaon,  District  Nasik  in  the  State  of

Maharashtra on May 16, 1989.  It is not in

dispute  that  after  the  marriage,  both  the

parties lived in Ujjain in the State of Madhya

Pradesh.

4. It is the case of the husband that the

wife is quarrelsome. She used to raise disputes

with  the  husband  and  his  family  members  on

petty matters. She also threatened the husband

that  in  case  she  would  be  kept  at  Ujjain

against her wishes, she would consume poison.

It is also the allegation of the appellant-

husband that respondent-wife left matrimonial

home in 1991.  She thereafter stayed with her

parents and at parental home, gave birth to

twins  –  son  Mayank  and  daughter  Malvika  on

December 25, 1991. She stayed at parental home

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

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

again left matrimonial home and deserted the

husband  permanently  without  proper  or

sufficient  reason,  depriving  the  husband  of

matrimonial enjoyment. The husband’s prestige

has been badly affected by the conduct of the

wife.

5. The appellant-husband served a notice

through his advocate to the respondent-wife on

September 22, 2004 to join him to which a reply

was sent by the wife through her counsel on

October 08, 2004 wherein false allegations have

been levelled against the husband which clearly

went to show that she was not prepared to stay

with the husband.

6. Since  the  respondent-wife  did  not

return matrimonial home, the appellant-husband

instituted a petition under Section 13 of the

Hindu Marriage Act, 1955 (hereinafter referred

to as ‘the Act’) on October 27, 2004 in the

Family Court at Ujjain which was registered as

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HMA Petition No. 164A of 2004 for dissolution

of marriage on the grounds of (i) desertion;

and  (ii)  cruelty.  The  appellant  husband  has

stated in the petition that both the parties

lastly lived together at Ujjain as husband and

wife. Ujjain Court has, therefore, jurisdiction

to entertain, try and decide the petition.

7. The  respondent-wife  filed  a  written

statement  controverting  facts  and  denying

allegations  levelled  against  her  by  the

appellant-husband.  It was stated by her that

the  appellant-husband  had  neither  provided

maintenance to the respondent-wife nor to the

children. She denied that her conduct towards

her  husband  and  his  family  members  was  not

proper and that she did not want to stay with

the family members of the husband. All such

allegations  were  made  only  with  a  view  to

taking divorce from the respondent-wife. It was

denied  that  the  wife  deserted  the  husband

without sufficient cause.

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8. She  also  refuted  the  allegation  of

having  deprived  the  husband  of  matrimonial

enjoyment and she had subjected him (husband)

to  physical  as  well  as  mental  cruelty  and

torture.  She  denied  that  prestige  of  the

husband had been badly affected in the society

because of the conduct of the respondent-wife.

She stated that her husband took away all the

ornaments,  jewellery  and  garments  from  her.

Though sufficient amount of dowry was given to

the  husband,  still  he  was  insisting  for

additional amount and other articles.

9. She also stated that she was staying

at  Malegaon,  District  Nasik  in  Maharashtra

which was at a distance of about 400 kms. from

the city of Ujjain.  Parents of the respondent-

wife were very old.  Business of her father was

closed.  Her  brothers  had  been  working

separately  and  were  maintaining  their  own

families. She had, therefore, to travel at such

a  long  distance  all  alone  which  was  very

difficult.   She  also  contended  that  Ujjain

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Court had no jurisdiction to entertain, try and

decide the petition. A prayer was, therefore,

made to dismiss HMA with costs.

10. Proceedings were also initiated by the

respondent-wife under Section 125 of the Code

of  Criminal  Procedure,  1973  at  Malegaon  for

maintenance as also under Section 24 of the

Hindu Marriage Act at Ujjain. We are, however,

not  concerned  with  those  proceedings  in  the

present case.

11. It may be stated that the respondent-

wife also filed an application under Section 9

of the Act for restitution of conjugal rights

in the Court of Civil Judge, Senior Division,

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

2005.

12. Immediately  thereafter,  the  wife

preferred an application under Section 23 of

the Code of Civil Procedure, 1908 (hereinafter

referred to as ‘the Code’) in the High Court of

Madhya Pradesh (Indore Bench) for transfer of

Ujjain case instituted by the husband being HMA

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Petition  No.  164A  of  2004  titled  Durgesh

Sharma v. Smt. Jayshree Sharma pending in the

Family Court at Ujjain to a Court of competent

jurisdiction at Malegaon, District Nasik in the

State of Maharashtra.

High Court’s Order 13. The High Court vide the impugned order

dated January 25, 2007 allowed the application

and transferred HMA 164A of 2004 pending the

Family Court, Ujjain to a competent Court at

Malegaon through District Judge, Nasik. It is

this order which is challenged in the present

appeal.

14. Notice was issued on May 14, 2007 and

further proceedings were stayed.  Considering

the  nature  of  litigation,  the  matter  was

ordered to be placed for final hearing and that

is how the matter has been placed before us.

Submissions of counsel 15. We have heard the learned counsel for

the parties.

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16. The learned counsel for the appellant

contended that the High Court was wholly wrong

in  transferring  a  case  pending  in  a  Court

subordinate to the said High Court to a Court

subordinate to another High Court. A High Court

does not possess that power and as such, the

High Court of Madhya Pradesh could not have

transferred a case to a Court subordinate to

the High Court of Bombay. On that ground alone,

the order passed by the High Court deserves to

be set aside. It was also submitted that even

on merits, no ground for transfer of case was

made out by the respondent-wife.  

17. The  learned  counsel  for  the

respondent, on the other hand, submitted that

the  order  passed  by  the  High  Court  is  in

consonance with law. It was urged that if the

High Court is satisfied that a proper case has

been made out for transfer of a case from a

Court subordinate to the said High Court to a

Court subordinate to different High Court, in

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exercise  of  power  under  sub-section  (3)  of

Section 23 of the Code such order can be made.

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

very  difficult  for  the  respondent-wife  to

travel a distance of about 400 kms. all alone

and hence discretion was exercised by the High

Court. This Court, in the exercise of power

under Article 136 of the Constitution may not

interfere  with  the  said  order.  It  was,

therefore, submitted that the appeal deserves

to be dismissed.

Statutory provisions 19. Before we deal with rival contentions and  case-law  on  the  point,  it  would  be

appropriate  if  we  notice  the  relevant

provisions of the Code.

20. Sections 22 to 25 enact law as regards

transfer and withdrawal of suits, appeals and

other  proceedings  from  one  Court  to  another

Court.

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21. As  a general rule, the plaintiff as

arbiter litis or dominus litis has a right to

choose his/her own forum where there is more

than  one  Court  in  which  such  suit  may  be

instituted.  Normally,  the  defendant  cannot

insist that instead of Court  A, the plaintiff

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

the  plaintiff  to  choose  a  forum  is  not

arbitrary,  absolute  or  uncontrolled  and  in

appropriate  cases,  a  superior  Court  may

transfer a case pending in one Court to another

Court.

22. Section 22 provides that where a suit

may be instituted in one of two or more Courts

and  is  instituted  in  one  of  such  Courts,  a

defendant  may  apply  to  have  the  suit

transferred to another Court.

23. Section  23  provides  the  forum  where

such application may be made. It is material to

the  controversy  in  question  and  may  be

reproduced;

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23. To what Court application lies. (1)  Where  the  several  Courts  having jurisdiction  are  subordinate  to  the same  Appellate  Court,  an  application under section 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such Courts are subordinate to  different  High  Courts,  the application  shall  be  made  the  High Court within the local limits of whose jurisdiction  the  Court  in  which  the suit is brought is situate.

 (emphasis supplied)

24. Section 24 contains general power of

transfer  of  any  suit,  appeal  or  other

proceeding at any stage on the application of a

party  or  by  a  Court  suo  motu  (of  its  own

motion).

25. Section 24, as originally enacted in

the Code of 1908, read as under:

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

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

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

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

(i) try or dispose of the same; or

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

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

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

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

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

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

26. There was a cleavage of opinion on the

question whether a case could be transferred

from a Court having no jurisdiction to try it.

Some High Courts have held that the language of

Section  24  was  very  wide  and  there  was  no

restriction on the High Court in exercising the

power of transfer merely because there was a

dispute regarding jurisdiction. Some other High

Courts, however, took a contrary view. The Law

Commission  considered  the  question  and

suggested amendment that a suit or proceeding

could be transferred under this section from a

Court which had no jurisdiction to try it.

27. In  the  Statement  of  Objects  and

Reasons, it was stated;

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

28.   Parliament considered the recommendation

of the Law Commission and by the Code of Civil

Procedure  (Amendment) Act,  1976, the  section

was amended in the present form.1  1 Section  24  -  General  power  of  transfer  and  withdrawal--(1)  On  the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage— (a)  transfer  any suit,  appeal  or  other  proceeding pending before  it  for  trial  or disposal to any Court  subordinate to it  and competent to try or dispose of the same, or  (b)  withdraw  any  suit,  appeal  or  other  proceeding  pending  in  any  Court subordinate to it, and          (i) try or dispose of the same; or          (ii) transfer the same for trial or disposal to any Court subordinate to it and               competent to try or dispose of the same; or         (iii) retransfer the same for trial or disposal to the Court from which it was                withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under sub- section  (1),  the  Court  which  is  thereafter  to  try  or  dispose  of  such  suit  or proceeding]  may, subject  to  any special  directions  in  the  case  of  an order  of transfer, either retry it or proceed from the point at which it was transferred or

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

stands, enables a High Court (or a District

Court) to transfer or withdraw any suit, appeal

or other proceeding pending before it or in any

Court subordinate to it. Such transfer can be

made  by  the  Court  at  any  stage  of  the

proceeding either on an application of a party

or suo motu. 30. Sub-section  (2)  empowers  the  Court

ordering transfer to issue directions for  de

novo trial or to proceed with the suit, appeal

or other proceeding from the point at which it

was transferred or withdrawn.

31. Sub-section  (3)  defines  ‘proceeding’

which includes an ‘execution proceeding’.

32. It declares that Courts of Additional

and  Assistant  Judges  will  be  deemed  to  be

withdrawn (3) For the purposes of this section,-        (a) Courts of Additional and Assistant Judges shall be deemed to be             subordinate to the District Court;         (b) "proceeding" includes a proceeding for the execution of a decree or order. (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small  Causes shall,  for the purposes of such suit,  be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.

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subordinate to the District Court. Sub-section

(4),  likewise,  states  that  the  expression

“Court of Small Causes” includes courts vested

with the powers of a Court of Small Causes.

33. Newly added sub-section (5) clarifies

that a suit or proceeding can be transferred

from a Court which has no jurisdiction to try

it.

34. Section 25, as originally enacted in

the Code of 1908, enabled the Governor-General

in  Council  to  transfer,  in  certain

circumstances,  a  suit,  appeal  or  other

proceeding from one High Court to another High

Court and read thus:

25.  Power  of  State  Government  to transfer suits—(1) Where any party to a  suit,  appeal  or  other  proceeding pending in a High Court presided over by a single Judge objects to its being heard  by  him  and  the  Judge  is satisfied  that  there  are  reasonable grounds  for  the  objection,  he  shall make a report to the Governor-General in Council, who may, by notification in the Official Gazette, transfer such suit,  appeal  or  proceeding  to  any other High Court;

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

35. The  section  was  amended  by  the

Government of India (Adaptation of Indian Laws)

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

“Governor-General  in Council”  and “who”,  the

words  “State  Government”  and  “which”  were

substituted.

36. Proviso  to  sub-section  (1)  was

inserted, which read as under;

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

37. Plain reading of the above provision

makes it clear that scope and applicability of

Section 25 was very much limited. It enabled

the State Government (earlier Governor-General

in  Council)  to  exercise  power  by  effecting

transfer from one High Court to any other High

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Court.  The  Law  Commission  considered  the

provision  as  it  originally  enacted.  It  felt

that the State Government could not be said to

be an appropriate agency for exercising power

of transfer of suit, appeal or other proceeding

inasmuch  as  exercise  of  such  power  was  a

‘judicial function’. The Commission also noted

that an analogous provision was made in Section

406 of the Code of Criminal Procedure, 1973

which empowered the Supreme Court to transfer

cases and appeals from one Court to another

Court.  It  accordingly  recommended  that  such

wide powers of transfer should not be retained

by the State Government but should be conferred

on the Supreme Court.

38. The  recommendation  was  accepted.  In

the Statement of Objects and Reasons, it was

stated:

Clause  12.—Section  25  of  the  Code empowers  the  State  Government  to transfer  suits  etc.  in  certain circumstances  from  the  High  Court exercising  jurisdiction  in  the  State to another High Court. This section is very  narrow in scope as it provides

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only for the transfer of suit, appeal or other proceeding pending in a High Court presided over by a Single Judge. Besides,  the  State  Government,  does not seem to be an appropriate agency for exercising the power of transfer. Section  25  is,  therefore,  being substituted  by  a  new  section  which provides  for  the  transfer  to  the Supreme  Court  the  existing  power vested with the State Government and to  confer on the Supreme Court such wide powers of transfer as it has in criminal  cases  under  Section  406  of the Code of Criminal Procedure, 1973. Further,  the  new  section  covers transfer  of  cases  from  or  to  the original side of a High Court to or from  any other Civil Court. The new section  is thus wider in scope than Section  406 of the Code of Criminal Procedure, 1973.

39. Accordingly,  Section  25  was

substituted in the present form which reads as

under:

25. Power of Supreme Court to transfer suits, etc

(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage,  if  satisfied  that  an  order under  this  section  is  expedient  for the ends of justice, direct that any suit,  appeal  or  other  proceeding  be

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

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

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

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

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

Case law

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40.    Having considered statutory provisions,

this is now the time to refer to few decisions

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

conveniently be discussed in two stages;

(i) position  prior  to  Code  of  Civil

Procedure (Amendment) Act, 1976, and

(ii) position  after  the  Code  of  Civil

Procedure (Amendment) Act, 1976.

(i) Position prior to Amendment Act, 1976 41. The first case on the point appears to

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

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

Judicial Commissioner, Nagpur was called upon

to consider the question whether a High Court

can transfer a case from a Court subordinate to

it  to  a  Court  subordinate  to  another  High

Court. In that case, plaintiff  R was carrying

on  business  at  Khamgaon  in  West  Berar.

Defendant A was a firm carrying on business in

Bombay. R filed a suit against A in the Court

of Subordinate Judge, Khamgaon for recovery of

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

Court of the Judicial Commissioner, Nagpur to

transfer the suit to the High Court of Bombay

on  its  original  side.  The  application  was

purported to have been made under sub-section

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

of  R  was  that  the  Court  of  Judicial

Commissioner, Nagpur could not transfer a case

to a Court subordinate to other High Court or

to the Original Side of the other High Court.

41. The  Court  considered  the  relevant

provisions (Sections 22 to 25) of the Code,

upheld the contention and ruled that the Court

of  Judicial  Commissioner,  Nagpur  could  not

transfer a suit to a Court subordinate to other

High  Court  or  to  other  High  Court  on  its

Original Side.

42. Interpreting Section 23 of the Code,

the Court observed;

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

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Court, the application goes before the latter; (2) where the several Courts are subordinate to different Appellate Courts but to the same High Court, the application must go to the High Court; and  (3)  where  the  several  Courts having jurisdiction over the suit are subordinate to different High Courts, the  application must be made to the High Court having authority over the Court  in  which  the  suit  has  been instituted. In the first two of these cases, the Court empowered to decide under Section 22 also has jurisdiction to transfer under Section 24. But in the third case there is no power of transfer, and the question is whether Section  22,  under  which  the application  to  be  made  is  one  for transfer,  can be interpreted to mean that, in a case like the present, the Court  to  which  the  application  is made, being powerless to transfer, may nevertheless direct that the plaint be returned  to  the  plaintiff  for presentation  to  some  Court  under another provincial jurisdiction”. (See also Topan Harji & Co. v. Singhai Dalchadn & Anr.; AIR 1924 Nag 152 : 75 IC 548).

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

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

question was whether the High Court of Patna

could  transfer  a  suit  from  Purulia  Court

subordinate to the High Court of Patna to a

Court subordinate to the High Court of Bombay.

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44. Disagreeing  with  the  view  in  Abu

Bakar, the Court held that such an order could

be  passed.  “An  order  of  a  High  Court  under

Section 22, that the suit shall proceed in a

Court subordinate to another High Court, will

be final and it will not be open to another

High Court to refuse the suit being tried in

the Court subordinate to it having jurisdiction

to try it”. 45. In Dr. Rajnath v. L. Vidya Ram & Ors.,

AIR 1953 All 772, it was observed that Section

23 of the Code is not an independent section.

It is supplemental to Section 22. Section 24 is

a general provision empowering the High Court

or the District Court to transfer a case on the

motion of any other party or on its own motion.

Section 23 merely lays down the forum in which

applications under Section 22 are to be made. 46. In  Firm Kanhaiyalal v. Zumerlal,  AIR

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

a High Court can transfer a suit pending in a

Court subordinate to that High Court to a Court

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subordinate to another High Court. The Court

held that Section 22 confers power on a Court

to transfer a suit pending in a subordinate

Court to a Court subordinate to another High

Court and Section 23 provides forum to which an

application may be made. 47. In that case, a suit was brought in a

Court subordinate to the High Court of Nagpur

and transfer was sought to a Court subordinate

to  the  High  Court  of  Calcutta  by  filing  an

application in the High Court of Nagpur. The

Court, overruling  Abu Bakar held that such a

transfer could be effected. 48. In  P.  Salayandi  Nadar  &  Ors.  v.

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

1959 Ker 180, the High Court of Kerala held

that a High Court has power to transfer a suit

pending in a Court subordinate to it to a Court

subordinate to another High Court.

49. It  may,  however,  be  noted  that  the

Court  stated  that  the  competency  of  the

25

petition  was  not  objected  by  the  opposite

party.

50. In Western U.P. Electric Power Supply

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

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

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

B for recovery of amount. B also filed a suit

against  A  in the Court of Senior Sub Judge,

Delhi  for  certain  amount.  B  filed  an

application in the High Court of Allahabad for

transfer of suit filed by A and pending in the

Court of Civil Judge at Mainpuri to the Court

of  Sub-Judge  at  Delhi.  The  application  was

allowed and the suit was transferred. A applied

for  recalling  of  the  order  contending  that

condition  precedent  to  the  application  of

Sections 22 and 23 of the Code did not exist

and  the  High  Court  had  no  jurisdiction  to

transfer the suit pending in Mainpuri Court to

the  Court  not  subordinate  thereto.  The  High

Court,  however,  rejected  the  prayer.   A

approached this Court.  

26

51. This  Court,  in  the  order,  expressly

noted  that  at  the  hearing  before  the  High

Court, the counsel for A conceded that the High

Court of Allahabad had jurisdiction to transfer

Mainpuri suit to the Court of Special Judge,

Delhi.  Taking  into  account  the  above

concession before the High Court, this Court

refused to interfere with the order passed by

the High Court transferring a suit from a Court

subordinate to the High Court of Allahabad to a

Court  subordinate  to  a  different  High  Court

(High Court of Delhi). 52. In para 6, this Court stated;

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

27

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

53. In  our opinion, the above case does

not  help  the  respondent-wife.  The  case  was

decided  on  concession  on  behalf  of  the

plaintiff that an order of transfer could be

passed by a High Court transferring a suit from

a  Court  subordinate  to  the  said  Court  to  a

Court subordinate to another High Court. It did

not lay down a proposition of law that under

the Code, a High Court can transfer a suit,

appeal or other proceeding pending in a Court

subordinate  to  that  Court  to  a  Court

subordinate to another High Court.  Moreover,

the  case  had  been  decided  prior  to  the

28

amendment  in  Section  25  of  the  Code  by  the

Amendment Act, 1976.

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

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

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

a  suit  in  the  Alipore  Court  in  West  Bengal

against the defendant-Company for recovery of

loan  amount  of  Rs.53  lacs.  The  defendant

Company also filed a suit in the Ballabgarh

Court  in  Punjab  &  Haryana  for  permanent

injunction restraining the petitioner Bank from

interfering with the peaceful possession of its

premises and its estates. Before settlement of

issues in Ballabhgarh suit, the plaintiff Bank

filed an application before the High Court of

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

with Section 151 of the Code for transfer of

suit from latter (Ballabhgarh) Court to former

(Alipore) Court.

55.   Observing that the same questions of law

and fact were involved in both the suits and

29

the parties were also the same, the High Court

ordered transfer of suit from Ballabhgarh Court

to Alipore Court. It was held that such order

could  be  passed  in  exercise  of  power  under

Section  23(3)  read  with  Section  151  of  the

Code.

56. The Court stated;

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

30

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

(ii)Position after Amendment Act, 1976 57. As  already  stated,  the  Code  was

amended in 1976 with effect from February 1,

1977. Section 25, as originally enacted in the

Code of 1908 and amended by the Government of

India (Adaptation of Indian Laws) Order, 1937

(which was formal in nature), was substituted

by  the  Amendment  Act,  1976.  The  scope  of

amended Section 25 is very wide. It empowers

the Supreme Court (this Court) to transfer any

suit, appeal or other proceeding from one High

Court to another High Court or from one Civil

Court in a State to any other Civil Court in

another  State  throughout  the  country.  Bare

reading  of  the  section  clearly  reflects  the

legislative  intent.  Plenary  and  extensive

powers have been conferred on this Court under

Section 25 as it stands now.

31

58. No case has come up before this Court

interpreting the provisions of sub-section (3)

of Section 23 in juxtaposition of Section 25 of

the  Code.  There  are,  however,  judicial

pronouncements by some High Courts.

59. In Priyavari Mehta v. Priyanath Mehta,

AIR 1980 Bom 337,  A-wife filed a matrimonial

petition under Section 13 of the Hindu Marriage

Act, 1955 against  B-husband in the Court of

Civil Judge at Mussoorie (Dehradun) for divorce

on  the  ground  of  cruelty.  B  appeared  in

response  to  the  summons  and  filed  written

statement.  B  then  filed  a  petition  for

restitution of conjugal rights under Section 9

of the Act in the District Court, Nagpur.  A

presented an application under sub-section (3)

of Section 23 of the Code in the High Court of

Bombay  (Nagpur  Bench)  for  transfer  of  suit

instituted by  B in Nagpur to Mussoorie. The

application was resisted mainly on the ground

that the High Court of Bombay (Nagpur Bench)

had  no  jurisdiction  to  transfer  a  suit

32

instituted in the Court at Mussoorie which was

a Court subordinate to other High Court. 60. The Court considered the provisions of

Sections 22 to 25 as also Section 21A of the

Hindu Marriage Act and held that the Court had

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

of the Code. The Court negatived the contention

of  B  that the amended Section 25 of the Code

superseded the power of the High Court under

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

According to the Court, in spite of amendment

in Section 25 of the Code by Amendment Act,

1976, the Legislature did not think it fit to

repeal sub-section (3) of Section 23 of the

Code.   The  Court,  therefore,  must  interpret

both the provisions harmoniously.

61. The Court stated;

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

33

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

 (emphasis supplied)

62. In Mamta Gupta v. Mukund Kumar Gupta,

AIR 2000 AP 394, the wife filed an application

in the High Court of Andhra Pradesh to transfer

a case pending in the Family Court, City Civil

Court,  Hyderabad  to  Family  Court,  Indore

34

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

whether such a transfer could be effected by

the  High  Court  of  Andhra  Pradesh  by

transferring  a  case  pending  in  a  Court

subordinate to it to a Court subordinate to the

High Court of Madhya Pradesh.  

63. Considering  the  provisions  of  sub-

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

Court to effect transfer as also Section 25 and

power of the Supreme Court (this Court), the

Court held that both the provisions must be

given effect and the power to transfer a case

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

Section 23 to a Court subordinate to different

High Court must be conceded.  If it is not

done, Section 23 (3) would become redundant.

64. Referring  to case law on the point,

the High Court observed;

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

35

Admittedly, as on date Section 23(3) continue  to  subsist  on  the  statute books along with Section 25. What is held  by  the  Supreme  Court  in  Guda Vijayalakshmi's case (supra), that it had a wider power of transfer, but at the same time it cannot be construed that  Section  23(3)  became  redundant. So long as the provision subsists, it continues to yield power vested in it. Merely because Section 25 confers the powers  on  the  Supreme  Court  to transfer  the  case,  it  cannot  be construed  that  Section  23  gets deleted.  The  Legislature  would  have thought fit to do so, when new Section 25 was enforced. Therefore, Section 23 (3)  and  Section  25  have  to  be construed in a harmonious way and by doing so, it can only be interpreted that  it  is  for  the  party  seeking transfer  either  to  choose  the  Forum under  Section  23(3)  or  25  depending upon  his  social,  economic  status. Option  thus  vested  with  the  party. But,  to  say  that  the  party  is precluded  from  filing  application under  Section  23(3)  after  1-2-1977, and  that  the  party  has  to  file  an application  only  before  the  Supreme Court under Section 25, would amount to  emasculating  Section  23(3).  Both the  provisions  are  independent  and option  is  left  to  the  party approaching the Court for transfer.

(emphasis supplied)

65. Recently,  in  Lakshmi  Nagdev  v.

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

36

petition was filed under Section 23(3) of the

Code in the High Court of Madhya Pradesh by the

wife seeking transfer of matrimonial suit filed

by the husband in the Court of III Additional

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

competent jurisdiction in District Durg in the

State of Chhattisgarh. The prayer was objected

on  the  ground  that  no  such  order  could  be

passed which seeks transfer of a suit from a

Court subordinate to one High Court to a Court

subordinate to other High Court. 66. Referring  to  Firm  Kanhaiyalal,

Jagatguru Shri Shankaracharya and Mamta Gupta,

the Court held that such a transfer could be

effected.

67. The Court said;

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

37

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

 (emphasis supplied)

68. Special  reference  may  be  made  to  a

decision of this Court in  Guda Vijayalakshmi

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

that  case,  A  (wife)  filed  a  suit  for

maintenance against B (husband) in a competent

Court in Andhra Pradesh. On receipt of notice,

B  filed  a  divorce  petition  under  the  Hindu

Marriage  Act,  1955  against  A  in  Rajasthan

Court.  A  filed  a  transfer  petition  under

Section 25 of the Code in this Court (Supreme

Court) for transfer of B’s suit from Rajasthan

to Andhra Pradesh. 69. This  Court  considered  the  provisions

of Sections 24 and 25 of the Code prior to and

after  the  Amendment  Act  of  1976  and  also

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

38

1955 and held that a transfer petition under

Section 25 of the Code would be maintainable

irrespective of the provisions of Sections 21

and 21A of the Hindu Marriage Act which did not

exclude the jurisdiction of this Court under

the  Code.  The  Court  also  doubted  the

correctness of the decision of the High Court

of Bombay (Nagpur Bench) in Priyavari Mehta. 70. Having  considered  the  scheme  of  the

Code  as  amended  from  time  to  time,  in  our

judgment, the law relating to transfer of cases

(suits, appeals and other proceedings) is well-

settled.  It is found in Sections 22 to 25 of

the Code and those provisions are exhaustive in

nature.  Whereas Sections 22, 24 and 25 deal

with  power of  transfer,  Section  23  merely provides forum and specifies the Court in which an  application  for  transfer  may  be  made.

Section  23  is  not  a  substantive  provision

vesting power in a particular Court to order

transfer.  

39

71. In  our  considered  opinion,  where

several  Courts  having  jurisdiction  are

subordinate  to  one  appellate  Court,  an

application for transfer may be made to such

appellate Court and the Court may transfer a

case  from  one  Court  subordinate  to  it  to

another  Court  subordinate  to  it.  Likewise,

where such Courts are subordinate to the same

High  Court,  an  application  may  be  made  and

action  may  be  taken  by  the  High  Court

transferring a case from one Court subordinate

to it to any other Court subordinate to that

High  Court.  But  where  such  Courts  are

subordinate  to  different  High  Courts,  it  is

only the Supreme Court (this Court) which may

pass an order of transfer. In other words, if

two courts are subordinate to different High

Courts,  one  High  Court  has  no  power,

jurisdiction or authority to transfer a case

pending in any court subordinate to that High

Court  to  a  Court  subordinate  to  other  High

40

Court.  It  is  only  the  Supreme  Court  (this

Court) which may order the transfer.

72. Section 25, as originally enacted in

the Code of 1908 and the decisions prior to

Amendment  Act  of  1976,  have  no  application

after substitution of Section 25 as it stands

today. To us, Section 23 has no application to

such cases and the only provision attracted is

Section 25.  

73. The  language  of  Section  25  also

supports  the  view  which  we  are  inclined  to

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

Code  enacts  that  “On  the  application  of  a

party”,  this  Court  may  pass  an  appropriate

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

contained Code’ and comprises of substantive as

well as procedural law on the point.  It allows

a  party  to  move  the  Court  by  making  an

application as also it empowers the Court to

make an order of transfer.

41

74. The  matter  can  be  examined  from

another angle also. Every Court has its own

local  or  territorial  limits  beyond  which  it

cannot  exercise  the  jurisdiction.  So  far  as

this Court is concerned, its jurisdiction is

not circumscribed by any territorial limitation

and it extends over any person or authority

within the territory of India. But, it has no

jurisdiction outside the country. So far as a

High Court is concerned, its jurisdiction is

limited to territory within which it exercises

jurisdiction and not beyond it. On that analogy

also,  a  High  Court  cannot  pass  an  order

transferring  a  case  pending  in  a  Court

subordinate to it to a Court subordinate to

another High Court. It would be inconsistent

with  the  limitation  as  to  territorial

jurisdiction of the Court.

75. This can be compared with exercise of

extraordinary  jurisdiction  by  a  writ  Court

under Article 32 or 226 of the Constitution. It

is well settled that this Court can exercise

42

power by issuing writs, directions or orders to

every authority within the territory of India

(as also those functioning outside the country

provided such authorities are under the control

of Government of India). But the jurisdiction

of a High Court has territorial limitations. It

can  exercise  the  power  “throughout  the

territories in relation to which it exercises

the jurisdiction”, that is to say, the writs

issued by a High Court cannot run beyond the

territory subject to its jurisdiction and the

person or authority to whom the High Court is

empowered to issue such writs must be within

those  territories which  clearly implies  that

they must be amenable to its jurisdiction in

accordance with law.

76. The  counsel  for  the  respondent-wife

submitted that provisions of Section 23(3) and

25  of  the  Code  should  be  harmoniously

construed.  Referring to  Priyavari  Mehta,  and

Lakshmi Nagdev,  it was submitted that Section

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

43

superseded by Section 25 of the Code. If it is

held that for transfer of a case, appeal or

other proceeding from a Court subordinate to

one  High  Court  to  a  Court  subordinate  to

another  High  Court,  only  this  Court  can  be

approached,  Section  23(3)  of  the  Code  will

become  nugatory,  redundant  and  futile.   No

Court of law will interpret one provision of

law  which  will  make  another  provision

superfluous or ineffective.  It was, therefore,

submitted that it has been rightly held that

the parties must be left “to choose the forum”

either under Section 23(3) or 25 of the Code. 77. We  are  unable  to  uphold  the

contention.   In  our  considered  view,  the

fallacy in the argument lies in the fact that

it presumes and presupposes that Section 23 of

the  Code  is  a  substantive provision  which

authorizes a Court mentioned therein to order

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

held by us, is merely a  procedural  one or a

44

machinery provision and provides  mode, method

or manner in approaching a Court for making an

application. It does not empower a Court to

effect transfer.  Moreover, Section 25 of the

Code  is  a  ‘complete  Code’  dealing  with

substantive as well as procedural law.  Section

23,  in  our  opinion,  therefore,  cannot  be

interpreted  in  the  manner  suggested  by  the

learned counsel appearing for the wife.

78. After  the  commencement  of  the

Constitution and establishment of the Supreme

Court  (this  Court),  Parliament  thought  it

proper  to  amend  Section  25  of  the  Code  and

accordingly, it was substituted by empowering

this  Court  to  order  transfer  from  one  High

Court to another High Court or to one Civil

Court in one State to another Civil Court in

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

even when Section 25 in the present form was

substituted by the Amendment Act of 1976, sub-

section  (3)  of  Section  23  of  the  Code  has

45

neither  been  deleted  nor  amended.  That,

however,  is  not  relevant.  Since  in  our

considered  view,  Section  23  is  merely  a

procedural provision, no order of transfer can

be made under the said provision.  If the case

is covered by Section 25 of the Code, it is

only that section which will apply for both the

purposes,  namely,  for  the  purpose  of  making

application  and  also  for  the  purpose  of

effecting transfer. On the contrary, reading of

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

the manner suggested by the learned counsel for

the  respondent-wife would  result in  allowing

inroad and encroachment on the power of this

Court not intended by Parliament. Section 23,

therefore, in our considered view, must be read

subject  to  Section  25  of  the  Code.   The

decisions taking a contrary view do not lay

down correct law. We, therefore, overrule them.

Even  if  such  power  was  with  a  High  Court

earlier, it stood withdrawn with effect from

January 01, 1977 in view of Section 25 of the

46

Code  as  amended  by  Code  of  Civil  Procedure

(Amendment) Act, 1976.

79. We are unable to agree with the view

that  in  such  cases,  inherent  powers  may  be

exercised under Section 151 of the Code as held

by the High Court of Punjab & Haryana in State

Bank of India. It is settled law that inherent

powers may be exercised ex debito justitiae in

those  cases,  where  there  is  no  express

provision in the Code. The said power cannot be

exercised in contravention or in conflict of or

ignoring express and specific provision of law.

Since the law relating to transfer is contained

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

exhaustive  in  nature,  Section  151  has  no

application. Even that contention, therefore,

cannot  take  the  case  of  respondent-wife

further.

80. For all these reasons, in our opinion,

the  order  passed  by  the  High  Court  is  not

sustainable and deserves to be set aside. We

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hold that a High Court has no power, authority

or jurisdiction to transfer a case, appeal or

other proceeding pending in a Court subordinate

to it to any Court subordinate to another High

Court in purported exercise of power under sub-

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

only this Court which can exercise the said

authority under Section 25 of the Code. The

order  passed  by  the  High  Court,  therefore,

deserves to be set aside and is accordingly set

aside.

81. On the facts and in the circumstances

of the case, however, the parties are directed

to bear their own costs.

82. The appeal is disposed of accordingly.

…………………………………………………J. (C.K. THAKKER)

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

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