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TMI Blog2008 (9) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 (hereinaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; (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 Court. The Law Commission considered the provision as it o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 . [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 legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 (M.P.). The question before the High Court was whether such a transfer could be effected by the High Court of Andhra Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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 sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case pending in any court subordinate to that High Court to a Court subordinate to other High 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. 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 exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode 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 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 neither been deleted nor amended. That, however, is not relevant. Since in our considered view, Section 23 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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