Introduction
The whole judiciary is seen with due respect and every person has faith in the judiciary that whoever will come before the judiciary will get justice. The court should practice without discrimination and bias. Justice should be given in such a manner that a clear image of the judiciary has to be maintained in the minds of people. In order to have good faith on the court, the court should maintain high moral standards between the members of the judiciary under the Code of criminal procedure and Civil procedure. Justice can be achieved only when the court deals in presence of both the parties and the court has the power to move cases from one court to another. But the right of the plaintiff cannot be curtailed, controlled or interfered. In civil procedure, the jurisdiction of a civil court is at the root of any civil suit. It is the primary criterion in which the civil court can give the judgement.
Nature, scope and objective
The nature of the transfer of case depends upon the power of transfer suits and cases in civil and criminal law-
The power of the court to transfer suit has the following features-
The power is limited where more than one court is competent to entertain the suits and plaintiff has filed in one of such courts.
The power is not available when the plaintiff is suing on a contract which contains “Forum Shopping Clause”.
The application under Section 22 can be filed only by one defendant and it has to be filed by single defendant even when there are multiple defendants.
All the parties to the suit (except the applicant) have the right to file objection to transfer the application considering all the objections of the court. The superior court shall determine the most appropriate court for settling disputes.
Scope of Transfer Of Cases Under Civil Procedure Code
Section 24(1) High Court or District Court can transfer and withdraw any case on the application of any of the parties at any stage of the suit whether on pending or appeal proceedings. But the transfer of cases in any court the court in which case is transferred should be competent to deal with that case. The High Court also has the power to withdraw the case from any court and transfer it to any other court. Either within the same appellate court or under a different appellate court the case will be within the scope of the same high court or it can be within the jurisdiction of other High courts.
Objective Of Transfer Of Civil Suits
The main intention behind the transfer of cases is delivering justice or for deciding matters which address public sentiments. There are various provisions regarding appeal but this will create pressure on the mechanism of judiciary and will result in delayed justice. But the statute has created such a system so that the problems do not occur i.e the hierarchy of the court. The transfer of cases is a provision that helps to maintain the faith of the judiciary amongst the general public.
Who may apply?
In Section 22 of CPC, the plaintiff has the right to file a case in any competent court and when the defendant gets to know the purpose of application he may apply for the transfer of the case. The court may also consider the objection if any, made by the plaintiff in relation to such transfer. And further, after the clearance of the objection, the court will transfer the case in a court that is competent to deal with that case.
Section 22 and 23 are related to each other. Section 22 defines the power of the defendant to apply for the cases and section 23 lays down the conditions where the application of transfer can be made.
Conditions
The suit or other proceeding must have been pending in a court competent to try it.
The transfer court must be subordinate to the court making transfer order.
The transferee court should be competent to try or dispose of the suit, where competency does not only include pecuniary but also territorial competency.
To which court application lies
It is dealt under Section 23.
Where the several courts having jurisdiction subordinate to the same appellate court then an application u/s 22, shall be made to the appellate court.
Where such courts are subordinates to different appellate courts but to the same high court then the application shall be made to the high court.
Where such Courts are subordinate to different courts within the local limits of whose jurisdiction the court in which suit is brought is situated.
Grounds for transfer:
Notice:
According to Section 22 of the CPC, it is mandatory to mention the time and then give notice of the application. Notice should be given to all the parties pleading in the suit, whether it is plaintiff or defendant and merely to the opposite parties only. Under the provisions of section 22 notice of the application must be given to each and every party of the suit and to the court before which it is made. But it has been held that the defect could be cured by notice on application itself.
Hearing of objections
Section 21 of CPC no objection to jurisdiction as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.
Section 22 of CPC gives power to transfer suits which may be instituted in more than one court- where a suit may be instituted in any one of the two or more courts and is instituted in one of such courts, any defendant after notice to the other parties may at least get possible opportunity and in all cases where issues are settled at or before such settlement apply to have the suit was transferred to another court and the court to which the application is made, after considering the objections of the other parties (if any) shall determine in which of the several courts having jurisdiction of the suit will proceed.
Suo Motu transfer
Under Section 24 of Civil Procedure Code, the jurisdiction is exercised in the matter of transfer of a lawsuit, appeal or revision by the High Court and District Court is not bound by any application produced by any of the parties. Judges of the High Court and District Courts have discretionary powers in the matter of suo moto. Under section 24 of the CPC the High Court may, on the application received by any of the parties for the transfer of suit may move the application from one court to another.
Section 24 does not specify any ground in which the case can be moved from one court to another but there are certain principles and grounds which have to be followed for transfer of cases from one court to another.
Consideration of facts and law has to be taken into account for transfer of cases.
Section 24 also empowers High Court to move cases from one court to another.
Dr. Lal Tanwani
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