POWER OF SUPREME COURT TO TRANSFER CASES

UNDER CRPC, CPC AND CONSTITUTION OF INDIA”

High Court or other civil court in any other State. This power may be exercised by the Supreme
Court if it is satisfied that an order under this Section is expedient for the ends of justice. Hence
wide powers are given to the Supreme Court to order a transfer if it feels that the ends of justice
so require.

In Dr. Subramaniam Swamy v. Ramakrishna Hegde1, the Court held that:

The paramount consideration for transfer of a case under Section 25 of Code of Civil Procedure
must be the requirement of justice. It was held that the mere convenience of the parties or anyone
of them may not be enough for the exercise of power, but it should even be shown that trial
within the chosen forum can lead to denial of justice. The Court further held that if the ends . of
justice so demand and the transfer of the case is imperative, there should be no hesitation to
transfer the case. The right of the dominus litis to choose the forum and consideration of plaintiff
s convenience etc. cannot eclipse the requirement of justice. Justice must be done at all costs; if
necessary by the transfer of the case from" one court to another.

This provision has been most often invoked in matrimonial matters, and usually at the instance of
the wife. When the husband and wife are living separately and the husband files -a petition for
divorce or institutes other proceedings under the law relating to marriage and divorce at the place
where he is residing, which is usually the place where the parties last resided together, the wife,
who has often returned to her parental home, moves for transfer either on the ground that she
cannot afford to travel or that she cannot leave her child behind or that she faces threats when she
goes to defend the proceedings. The Court invariably takes a sympathetic view towards the
wife's plea for transfer, but this is net always the case.

Section 25. Power of Supreme Court to transfer suits, etc.

1
AIR 1989 SC 117
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.

1.1 SCOPE

Under the section before its amendment, by Act (104 of 1976) it was the state government which
had the power to transfer cases from one high court to another upon a report made by a judge of
the high court that there were reasonable objections to its being heard by him. Such transfer
could be effected by a notification in the Official Gazette. The section as it stood before its
amendment was on the analogy of s 52 of the Code of Criminal Procedure 1898. The new section
is wider in scope than the unamended section.

The changes affected by the amendment:

1. The power of transfer is conferred on the Supreme Court;

The application has to be made by a motion supported by an affidavit. If the Supreme Court finds
that the application was frivolous or vexatious, it would naturally dismiss it and in doing so, can
award as compensation to the opposing party a sum not exceeding rupees two thousand. Sub-
section 5 is the same as sub-s 2 of the section before its amendment. What is expedient for the
ends of justice will have to be judged upon the totality of facts and circumstances in a given
case2.

1.2. PARAMOUNT CONSIDERATION

The paramount consideration for the exercise of power of transfer must be to meet the ends of
justice. It is true that if more than one court has jurisdiction under the Code of Civil Procedure to
try the suit, the plaintiff, as dominus litis, has a right to choose the court and the defendant
cannot demand that the suit be tried in any particular court which is convenient to him. The mere
convenience of the parties or of any one of them may not be enough for ordering transfer. It must
also be shown that trial in the chosen forum will result in the denial of justice. A party seeking
justice may choose a forum most inconvenient to the adversary, with a view to depriving the
adversary of a fair trial. The Parliament has, therefore, invested the Supreme Court with
discretion to transfer the case from one court to another, to meet the ends of justice. Words of
wide amplitude (‘for the ends of justice’) have been advisedly used, to leave the matter to the
discretion of the Apex Court, as it is not possible to conceive all situations requiring or justifying
the exercise of power; but, justice according to law, should be done. If, for achieving that
objective, the transfer of the case is imperative, there should be no hesitation to transfer the case,
even if it may cause some inconvenience to the plaintiff.3

2
Arvee Industries v Ratanlal AIR 1977 SC 2429 [LNIND 1977 SC 265], (1977) 4 SCC 363.
3
Subramanian Swamy v Rama AIR 1990 SC 113 [LNIND 1989 SC 503].
1.3. WITHDRAWAL BEFORE ITSELF TO DECIDE

The Supreme Court, finding no hope to unite the parties, withdrew the petition to itself and
granted a decree of divorce by mutual consent.4 When the transfer petition came up for hearing
before the Supreme Court, the parties desired to settle the dispute outside the court and filed a
Memorandum of Agreement before the Supreme Court. In view of the settlement arrived at
between the parties, the Supreme Court considered it necessary to transfer the Hindu Marriage
Act case to itself in the light of the agreement filed by the parties.5

1.4. FAMILY MATTERS

Power to transfer a case under s 25 of the Code of Civil Procedure is not excluded by s 21-
21A of the Hindu Marriage Act 1955.6 Since family matters are sensitive in character and the
judges of the family courts have to play a greater participatory role, that objective can only be
achieved if a rapport is established by the judges of such courts with the parties concerned;
hence, keeping in view the unfounded allegations of the petitioner, the Supreme Court declined
to transfer the matter, however, leaving it to the judge concerned whether he would prefer to
keep hearing the matter or recommend a transfer to another family court within the same
jurisdiction.7 Having regard to the agreement between the parties seeking dissolution of marriage
by mutual consent, the Hon'ble Supreme Court ordered transfer of the petition from the Court of
District Judge, Bokaro to the District Judge, Delhi.8 Considering the fact that the husband is a
high ranking railway officer, who would be entitled to travel facility, in the opinion of the
Supreme Court in the backdrop of events that have taken place, it would be expedient in the
interest of justice to transfer the proceedings from one court to another for disposal in accordance
with law.9 In the absence of any objection from the respondent, the petition under S.13 of
the Hindu Marriage Act 1955 was transferred to Delhi, where a petition under S.125 of the Code

4
Anita Sabharwal v Anil Sabharwal (1997) 11 SCC 490.
5
Shashi Garg v Arun Garg (1997) 7 SCC 565 [LNIND 1997 SC 1236].
6
G Vijayalakshmi v G Ramchandra AIR 1981 SC 1143 [LNIND 1981 SC 159].
7
Shehnaz Mudbhatkal v Arvind Ramakrishna (1998) 5 SCC 596.
8
Seema Srinidhi v Praveen Kumar Tiwari (1997) 8 SCC 712.
9
Anita Laxmi Narian Singh v Laxmi Narian Singh (1992) 2 SCC 562 [LNIND 1992 SC 266].
of Criminal Procedure is pending.10 Considering the fact that a child out of the marriage aged
about two and a half years was with the wife at Varanasi; and, since, the child could not be left
alone at Varanasi, the petition was transferred from the Court of District Judge, Delhi to the
Family Court, Varanasi11. Though, the reasons given by the appellant for transfer of the case
from the Family Court, Pune, to the Family Court, Delhi and the apprehension entertained by the
appellant were totally unjustified, since the principal judge, Family Court, Pune, had taken the
grievances made by the appellant before the court rather seriously and had commented adversely
about the same, with a view to do complete justice between the parties, the case was directed to
be transferred from the file of the Principal Judge, Family Court, Pune, to the Principal Judge,
Family Court, Delhi.12

In a particular case the wife alleged that she was kidnapped and her signature was forcibly taken
before the marriage registrar to show that she had married the respondent. She further alleged
that she managed to run away from the custody of the respondent and apprehended threat of
bodily injury/death if she were to visit the place of marriage. She alleged paucity of funds to
engage a counsel at the place where the suit was pending. The allegations were not refuted by the
respondent, so the court transferred the suit from the Court of Family Judge in West Bengal to
the Court of Family Judge in the State of Bihar.13

A suit for an injunction was pending in a court at Delhi, and was sought to be transferred to City
Civil Court, Mumbai. The suit was in respect of a flat gifted by the father of the petitioner wife,
alleged to have been filed by respondent husband with a view to harass the petitioner due to
matrimonial disputes between parties, pending before the Mumbai Courts. The petitioner was
finding it very difficult to cope with the harassment of respondent husband and to contest the
case initiated by him at Delhi, in the atmosphere of fear, the petitioner wife had to leave the
abovementioned apartment at Delhi and go to her parents at Mumbai. Considering all the facts

10
Savitri v Harichand (1998) 3 SCC 71.
11
Jaishree Banerjee v Abhirup Banerjee (1997) 11 SCC 107.
12
Payal Ashok Kumar Jindal v Capt Ashok Kumar Jindal (1992) 3 SCC 116.
13
Priyanka Biswas v Subrato Biswas AIR 2005 SC 3119 [LNIND 2005 SC 547].
and circumstances, to serve the ends of justice better, the suit pending in the court at Delhi was
directed to be transferred to the City Civil Court, Mumbai.14

1.5. TRANSFER OF CIVIL CASE FROM ONE STATE TO ANOTHER

Considerations for the transfer of a civil case from one state to another by the Supreme Court are
dealt with in the cases below.15 Transfer of cases relating to Matrimonial Disputes from a court
situated in a particular state to a court situated in another state, can only be done by the way of
Transfer Petition which may be filed by either party to the case before Hon'ble Supreme Court of
India. Such Transfer Petition is filed under Section 25 of Code of Civil Procedure, wherein under
the said provision, Supreme Court of India has original Jurisdiction to transfer a civil case
relating to Matrimonial Dispute, based on facts of the case, & circumstances of parties, and if
such transfer is expedient for ends of Justice. Similar power may be exercised by High courts in
the event transfer of case is sought from one district to another within one state, over which the
concerned High Court has Jurisdiction.

Section 25 is based on the 'doctrine of forum convenience' which means –'the best forum' where
a fair trial can be held. Normally it is presumed that if petitioner has filed a case before a
particular court having jurisdiction – it is the best forum. The burden is on the person seeking
transfer of case, to prove that if the proceedings are not transferred, he/she would suffer
irreparable injustice, on the merits of the case (ie going unrepresented in the case) and/or with
issues respect to personal life (ie loss of job/health/safety issues). The party seeking Transfer
would also have to prove that the latter is irreparable in monetary terms. Once party to the case
who has filed Transfer Petition, is able to prove as mentioned above, he/she would also have to
prove that he/she won't suffer similar losses if the proceedings are transferred. Hence it is a
double burden of proof for the party seeking Transfer of case. If party to the case succeeds in
proving as mentioned above, the balance of convenience is said to lie in favour of concerned
party to the case, who has sought Transfer of case. In such cases Courts are usually inclined in
favour of Women.

14
Reena Mehra v Rohit Rai Mehra AIR 2003 SC 1002 [LNIND 2003 SC 91].
15
Beni Shankar Sharma v Suryakant Sharma AIR 1982 SC 52, (1981) 3 SCC 627; Indian Overseas Bank v Chemical
Const Co AIR 1970 SC 1514 [LNIND 1970 SC 167]; G Vijayalakshmi v GR Sekhra Sastry AIR 1981 SC 143.
Usually Divorce cases, and cases related to custody of children, & case of Civil Nature can be
transferred by Supreme Court, when Transfer Petition is filed under Section 25 of Civil
Procedure Code. Matrimonial Disputes may also involve cases, which are generally in nature of
"Criminal Cases" like Maintenance Application under section 125 Cr.PC or a Application under
Domestic Violence Act, which may be sought to be transferred by filing Transfer
Petition/Application before Hon'ble Supreme Court of India, under section 406 Cr.PC or by
filing Special Leave Petition (SLP) under Article 136 of Constitution of India.

1.6. MINIMISING HARDSHIP

A suit was transferred from the file of the Subordinate Judge, Patna by an earlier order of the
Supreme Court, to be tried along with another suit pending with the original side of the Bombay
High Court. The suit pending on the original side of the Bombay High Court was subsequently
decreed while the appeal against it was pending. The petitioners prayed for the transfer of the
suit back to Patna on the ground that the order of the joint trial had outlived its purpose. The
Supreme Court, giving regard to the facts and circumstances of the case, instead of re-
transferring the suit to Patna, directed that the original side of the Bombay High Court should
frame necessary issues in this suit within six weeks and try the suit on day to day basis from the
date of framing of issues. The shares were forfeited by the appellant company, consequent to
which proceedings were filed in a different state and within the state in different courts. The
appellant company prayed for transfer of case to one single court. The Supreme Court, instead of
transferring all these cases to one single court which would inter alia, cause hardship and
unavoidable expenses to the respondent, observed that the petitioners move the respective high
court to have the cases transferred for disposal within their respective jurisdictions so that the
hardship to both the sides is minimised.16

1.7. TRANSFER APPLICATION ALLOWED—INSTANCES

The reason for seeking transfer of the suit is that the first petitioner who was the Karta of the
joint family of the petitioners was about 75 years old. The petitioners had no place to stay in
Gauhati and it would have been impossible for the petitioners who were all residents of Calcutta

16
Vatsa Industries Ltd, Bombay v Shanker Lal Shroff (1997) 10 SCC 333.
to defend the suit if it was tried in Gauhati. Considering the facts and circumstances of the case,
the Supreme Court considered it expedient for the ends of justice to have the suit tried at
Calcutta.17

Since, the earlier suit was filed in Kanpur, the registered office of the company was also at
Kanpur, and the income-tax return was also filed at Kanpur, it went without saying that the suit
otherwise deserves to be decided by one and the same court, hence, the suit at Calcutta was
ordered to be transferred to Kanpur.18

Though, the reasons given by the appellant for transfer of the case from the Family Court, Pune,
to the Family Court, Delhi and the apprehension entertained by the appellant were totally
unjustified, since the Principal Judge, Family Court, Pune, had taken the grievances made by the
appellant before the court rather seriously and had commented adversely about the same, with a
view to do complete justice between the parties, the case was directed to be transferred from the
file of the Principal Judge, Family Court, Pune, to the Principal Judge Family Court, Delhi. 19

1.8. TRANSFER APPLICATION DISALLOWED—INSTANCES

No party is entitled to get a case transferred from one bench to another, unless the bench is
biased or there are some reasonable grounds for the same. No right to get a case transferred to
any other bench can legitimately be claimed, merely because the judge expresses opinion on the
merits of the case on the conclusion of hearing. On the conclusion of the oral hearing, the
Supreme Court expressed its opinion in the open court, that it was inclined to allow the appeal
and set aside the order of the high court and dismiss the writ petition. However, taking a
sympathetic view, it requested the counsel appearing for the party to obtain certain instructions;
but, such opportunity granted to the party was misused by the party by raising mischievous and
frivolous objections for the transfer of the case from one bench to another, instead of filing
written submissions. The prayer for transfer was rejected by the Supreme Court in the
circumstances. It was more so, since oral hearing had already been completed, and, despite

17
Beni Shanker Sharma v Surayakant Sharma (1981) 3 SCC 627.
18
Murray & Co Pvt Ltd v Madan Lal Poddar (1994) Supp 3 SCC 696.
19
Payal Ashok Kumar Jindal v Capt Ashok Kumar Jindal (1992) 3 SCC 116.
several adjournments, the party had failed to appear before the court or to file the written
submission.20

In view of the respondent undertaking to meet the travel expenses of the petitioner, it was held
by the Supreme Court that there was no justification in transferring the case from Sultanpur to
Valsad.21

1.9. EFFECT OF REJECTION OF EARLIER TRANSFER APPLICATION IN OTHER

On an earlier occasion, the respondent made an application for transfer of the Dibrugarh case to
Delhi, which was rejected by the Supreme Court. In these circumstances, it was deemed proper
to transfer the guardianship case filed by the respondent at Delhi to Dibrugarh, where another
application was already pending. Although, it may have caused the respondent some trouble of
undertaking the journey to Dibrugarh but, for that reason in the facts of the present case, it could
not be presumed that the respondent would be prejudiced in prosecuting his case. Since, the
respondent was not in any financial difficulty, he could make an appropriate arrangement for his
representation at Dibrugarh.22

1.10. EFFECT OF ALLOWING OF EARLIER TRANSFER APPLICATION IN OTHER

Where, suit sought to be transferred was associated with two matters already ordered to be
transferred by Supreme Court, in the light of the said fact, the suit in question was also directed
to be transferred to the same high court. However, since the already over-burdened high court
had another case added to its pendency, the Supreme Court observed that the judge of the
concerned high court excepting for such witnesses who are very material and who the learned
judge of the high court, in his discretion of any witnesses may need to be watched and so on.23

20
Gujarat Electricity Board v Atmaram Suncomal AIR 1989 SC 1433 [LNIND 1989 SC 207].
21
Shiv Kumari Devenndra Ojha v Rammajor Sheetlaprasad Ojha (1997) 2 SCC 452 [LNINDORD 1997 SC 138].
22
Shakuntala Modi v Om Prakash Bharuka (1991) 2 SCC 706.
23
Mohit Kumar v Dato Mohan Swami AIR 2004 SC 3682 [LNIND 2004 SC 379].
1.11. TRANSFER OF SUBSEQUENT SUIT TO THE COURT DEALING WITH
EARLIER SUIT

In a particular case there was contract for supply of jute bags between the plaintiff company and
the defendant company and the goods supplied were found to be defective and therefore
returned. Suits were filed by both companies against each other for recovery of amount before
different courts, the cause of action alleged in the two plaints referred to same period and same
transactions. The issues arising were common and almost the same set of oral and documentary
evidence were required to be adduced. The possibility of conflicting decrees by two courts could
not be ruled out. Therefore, the suit instituted at a later point was directed by the Supreme Court
to be transferred to the court where earlier suit was filed.24

24
Chitivalasa Jute Mills. v Jaypee Rewa Cement AIR 2004 SC 1687 [LNIND 2004 SC 149].