What is a Transfer Petition?

Jan12,2021 #Transfer Petition

Vaishnavi Nair & Khushi Lunawat

The Supreme Court of India has the power to transfer any case appeal or other proceedings from one high court or other civil court of a state to a high court or other civil court in any other state.

What is a transfer petition?

Section 25 of the Code of Civil Procedure (CPC) states that the Supreme court has the power to transfer any case or appeal or other proceedings from a high court or other civil court of one state to a high court or civil court of another state to different civil court. This power can be exercised when the supreme court is satisfied that an order under this section needs an end of justice, hence wide powers are given to supreme court, for transferring a case from one state jurisdiction to another. This power of transferring a case from one jurisdiction to another, has given to Supreme Court, so that it can ensure that no one is suffering any kind of injustice because of the lacunae in the machinery.

This Transfer of Petition can be done for the following cases:

  • Transfer of civil case from one state to other states.
  • Transfer of criminal case from one state to other states.
  • Transfer of divorce case from one state to other state.

Additional Details:

A transfer petition for transfer of criminal cases is filed under section 406 of CRPC. Section 406 CRPC provides that the supreme court can transfer any case or appeal from one high court to another high court or from criminal subordinate to another criminal court of equal or of superior jurisdiction.

Transfer petition can be filed under the original power of supreme court which has power to transfer any case under article 139A[1], while transfer petition can also be filed under 139 A [2] which provides that the Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.

Format of a Transfer Petition.

1 A short synopsis– A short synopsis outlining the grounds, the petitioner wishes to seek before the hon’ble supreme court is a must, the synopsis must be a crisp and be on point, it should relate to only facts which forms the ground for seeking the transfer.

2. Details of the case– The petitioner must specify the details of the case, which he wish it to be get transfer and should also add the name of the court, in which he wants it to be transferred.

3. Grounds for transferring the petition– The petitioner should also specify the grounds, on which he is seeking for the transfer, such as:

A] There is a prejudice in jurisdiction

B] Threat to life

C] Being a single woman without any support

D] Medical history

E] Old and ailing parents

F] No source of income

G] Simultaneous jurisdiction

Interim relief – The petitioner may ask for an interim relief of stay of proceedings of the case he wishes to transfer.

Types of transfer petition

Divorce transfer petition

The Divorce petitions are usually filed in the Supreme court. Sometimes it is filed by wife, when husband files the petition in matrimonial home and wife is residing at some other state or parental home

In Ananditadas v. Sirjit dey [ 2006], it was held that if a wife claims to have minor children, then the grandparents can be asked to look after the children, it was held that merely on this petition should not be transferred.

If the wife claims for a far distance then in effort to prevent the transfer the husband can make offer to bear expense of travel or book a second-class AC ticket. This is normally considered in courts.

If a wife shows a threat to her life, then she should prove this in court of law mere stating ‘threat to life’ will not be inclined to transfer petition, the same was held in Priti Sharma vs Manjeet Sharma [2005].

The case of wife seeking transfer on ground of being unemployed and unable to commute, court stated that, “merely because petitioner is a lady does not mean that she couldn’t travel” and dismissed the petition.

Men who have child custody can rely on the case of Jayshree Banerjee vs Abhirup Banerjee [1997] to get proceeding in his favor.

Some of landmark cases of transfer of cases in matrimonial matters:

In Dr. Subramaniam Swamy v. Ramakrishna Hegde, the Court ruled that:

The paramount thought for transfer of a case under Section 25 of Code of Civil Procedure must be the necessity of justice. It was held that the mere convenience of the parties or anyone of them might not be enough for the exercise of power, however, it ought to even be shown that trial within the chosen forum will result in denial of justice. The Court may examine the control and see, if the ends of justice therefore demand and also the transfer of the case is imperative, there ought to be no hesitation to transfer the case. The proper of the dominus litis to decide on the forum and thought of complainant’s convenience etc. cannot eclipse the necessity of justice. Justice should be done in any respect costs; if necessary, by the transfer of the case from one court to a different. The court take sympathetic read towards wife plea but that’s not always the case.

In Shiv Kumari Devendra Ojha Vs Ramesh Shitla Prasad Ojha, the Court disallowed a woman’s application for transfer of an application for grant of a succession certificate, from Gujarat to U.P.  Her main plea was that being a woman she was unable to travel from U.P. to Gujarat. The Court disallowed the petition primarily on the ground that the respondent was able to pay the traveling expenses. The Court further held, that if the petitioner had any issue in participating a counsel as a result of monetary constraints, she may file an application to recover the amounts paid for the same from the respondents, in the trial court at Gujarat.

In Kalpana devi Prakash Thakar Vs Dev Prakash Thakar, the Court disallowed the wife’s plea for transfer of the matrimonial proceedings from Mumbai. to Palanpur, Gujarat taking into account the subsequent considerations:

  • The husband was a health care provider and his absence from Mumbai would cause inconvenience to his patients;
  • His previous and unwell mother who. lived with him required regular medical check-ups and constant care;
  • The witnesses were mainly from Mumbai;
  • The wife had relatives in Mumbai with whom she could stay whenever she went there for the case;
  • The husband was ready to bear the expenses of travel and additionally the traveling expenses of the escort.
  • Palanpur was well connected to Mumbai by train
  • Another issue was raised when the transfer of a case is sought after Jammu and Kashmir. As the Code of civil procedure doesn’t apply there and thus provision of section 25 will also wouldn’t apply.

In Kiran Ramanlal Jani Vs Gulam Kadar, the petitioner had prayed for transfer of a motor accident claim from Jammu and Kashmir to Gujarat. The Court allowed the transfer petition in the absence of any objection on behalf of the respondents and their non-appearance even when in service. It is, however, submitted that there has to be a sound legal basis for such transfer, when the party wishes a transfer of a case from Gujarat to the State of Jammu and Kashmir, the acceptable course would be to file a petition for special leave under Article 136 against the order directing issue of summons, personal appearance, etc. Once the Court is seized of the matter under Article 136 of the Constitution, it would have gained power under Article 142 to direct transfer, in order to do complete justice.

In case of Bihar state food and supplies corporation v. godrej soaps [p]ltd and sons. A petition was filed for retransfer of the suit on the ground that the transfer was over since 2 cases and couldn’t be tried along. The Court disallowed the petition for transfer and requested the learned decide on the initial side to frame the necessary problems in the suit inside six weeks and thereafter take evidence on a day-after-day basis.

In Avtar Singh and Co. Pvt. Ltd. v. S.S. Enterprises, a petition was filed, under Section 25 CPC for transfer of the suit from the Calcutta High Court to the District Court at Kanpur where a suit was already pending. The Court directed the Calcutta suit to be transferred to Kanpur taking under consideration of proven fact that Kanpur suit was filed earlier in purpose of time and that the suit was filed in Calcutta was within the nature of a cross-suit

Criminal transfer petition

Section 406 of the Code of Criminal procedure gives power to supreme court to transfer criminal cases and appeals pending in one high court to another high court or from one criminal court to another. Whenever an application under section 406 of code of civil procedure is dismissed the supreme court is of the opinion that the application was either frivolous or vexatious order the applicant to pay by way of compensation to the respondent.

Some landmark cases dealing with Criminal transfer Petition:

In Maneka Sanjay Gandhi v. Miss Rani Jethmalani, Justice Krishna Iyer observed as follows:
“Assurance of a fair trial is the first imperative of the dispensation of justice and therefore the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or simple handiness of legal services or like mine-grievances. Something more substantial a lot of compelling, a lot of imperilling from the point of read of public justice and its attendant surroundings, is needy if the Court is to exercise its power of transfer; this is the cardinal principle though the circumstances may be myriad and vary from case to case”.

In Abiram Veer v. North Eastern Regional Agricultural Marketing Corporation Ltd, the Supreme Court declined transfer of 10 cases under Section 138 of the Negotiable Instruments Act, pending before Courts the courts of Gauhati. The court did not find sufficient reason to order transfer, merely because it was alleged that the cause of action arose at Lucknow and that therefore the Court at Lucknow could exercise jurisdiction. The Court held that the question of jurisdiction would have to be raised before the Court where the case is pending. The Court did not find the petitioner’s plea that the situation at Gauhati posed a danger to his life, as sufficient ground for ordering transfer, as the same would apply to the other side also. The Court, however, left it open to the petitioner to apply for exemption from personal appearance in cases where he made the first appearance and directed that if such an application was made, the Magistrate concerned would exempt him from personal appearance on the following conditions: –

The counsel on his behalf would be present in the court on all days when the cases are taken up.

The petition shouldn’t dispute his identity.

The petitioner would be present in court when his presence is imperatively needed, such as, the examination under Section 313 of the Criminal Procedure Code.

In Ayyannar Agencies v.Sri Vishnu Cement Ltd, five complaints had been filed by the respondent under Section 138 of the Negotiable Instruments Act before the Court of the Metropolitan Magistrate at Chennai and thereafter one complaint was filed before the Metropolitan Magistrate at Hyderabad against the petitioners in respect of two cheques for the same offences under Section 138 of the Negotiable Instruments Act. Transfer was sought of the Hyderabad case to Chennai on the ground that parties in all cases were the same and the offence is of the same nature though pertaining to different cheques. The Court allowed the petition for transfer holding that the transfer prayed for could only be in the interests of justice and for the convenience of conducting the trial and disposal of all the cases.

In Abdul Madani v. State of Tamil Nadu, the Court disallowed the plea for transfer. The petitioners-prayed for transfer of the case pending against them in Tamil Nadu to Kerala alleging that the surcharged communal atmosphere in Tamil Nadu made the conduct of a fair trial impossible. The Court found as a matter of fact that a fair and speedy trial of the case was possible and the accused persons need not have any cause for apprehension. The court observed that the apprehension of not getting a fair and impartial trial is required to be reasonable and not imaginary. The Court observed that no universal or hard and fast rules can be prescribed for deciding the transfer petition, which always had to be decided on the basis of the facts of each case. The Court also observed that the convenience of the parties, including the witnesses to be produced at the trial was a relevant consideration, that convenience of the parties does not necessarily mean the convenience of the petitioner alone and that convenience for the purpose of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interests of the society.

Jurisdiction of Supreme Court under Article 139 -A

In Union Carbide Corporation v. Union of India, in the context of a challenge to the settlement of the Bhopal gas case [Union Carbide Corporation v. Union of India, (1989) 1 SCC 674] the withdrawal of the main civil suit and criminal proceedings to the Supreme Court was challenged on the ground that the requirements of Article 139-A of the Constitution were not satisfied. In rejecting the plea that the case could not have been so withdrawn, the Supreme Court held that Article-139 did not exhaust its power of withdrawal and transfer, and that its power under Article 136 and 142(I) were also available for the purpose.

It is not always that supreme court exercises it power to transfer merely because of constitutional validity. In Vinod Chandra chiman lal shah vs union of India, the court was asked to transfer certain writ petition pending in Gujrat high court to challenge the validity of cofeposa and safema on the said consideration before a bench of nine judges of supreme court originally supreme court stayed the proceedings of high court

In Securities and Exchange Board of India vs Bombay Stock Exchange Brokers Forum, where the Court while transferring some matters to itself, stayed hearing on other petitions in the High Courts on similar issues, but granted liberty to apply for intervention in the transferred cases; In Delhi Development Authority vs Skipper Constructions the Supreme Court directed transfer of all cases regarding different properties concerning the Skipper Construction company to itself.

In KV. Venkatapathi v. State, a transfer petition was filed, by the petitioner under Article 139A of the Constitution, with an application for permission to file the transfer petition. The petitioner who was an ex­ Advocate General of the State of Tamil Nadu and had been appointed by the High Court as a Special Prosecutor, had averred, that he was not provided the necessary papers in the appeals filed by the Chief Minister of Tamil Nadu, Ms J. Jayalalitha. The Supreme Court issued notice and stayed the hearing of the appeals after granting permission to file the transfer petition. By its further order disposing of the transfer petition, the Court ordered rehearing of the matter after all the documents were supplied to the petitioner

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