General power of transfer and withdrawal in a Civil case

Deergh Uppal

The Constitution has established institutions to take care of any conflicts that occur in society; the Code of Civil Procedure, 1908, is one such institution. In order to resolve a conflict that is not unlawful in nature, civil action is the collection of directions that must be taken before turning into the justice system.

In order to settle any conflict, a venue must be approached. The offended party has the right to select the court in which he/she wants to create the suit in each legal case, provided that it has the authority to try the suit. When a lawsuit has been brought by a party that is the complainant of its choosing, the other party that is the defendant has some opportunities to either accept the place of suit or file a written statement or to file an appeal for the transfer of the litigation if the place of suit is not met.

However, the court can refuse the appeal for the same and the defendant must consider it without the approval of the defendant. However, the court may not commence the trial. Aside from the parties, the courts have the right to move the suit at their discretion.

Sections 22 and 23 deal with the defendant’s right to petition for the transfer of a suit, while Sections 24 and 25 allow the transfer of a suit through such courts.

Section 22: Power to transfer suits which may be instituted in more than one court

In Section 22 of the Code of Civil Procedure, the claimant is entitled to bring the case before any appropriate court and, thereafter, the defendant is entitled to ask for the transfer of the lawsuit at the earliest after notifying the complainant of the intent of the appeal.

The court can therefore recognize the complainant’s objection to the move of the claim from the court where the suit has been moved to another court, if any. And then the suit can be moved to that court only after clearance of the objection, which has authority to deal with the lawsuit.

Sections 22 and 23 are complementary, since section 22 confers on the claimant the right to petition for a transfer of the terms alluded to therein, and section 23 allows for the claim to be rendered for the transfer of suits. Relevant requirements must be laid out in the proposal, since it can also be responsible for the dismissal of the application and the appeal must be submitted prior to the resolution of the matter.

It is right for an applicant as an arbiter to choose a venue of his own choice. This privilege is governed by the power of transfer; but this is a right that should not be dealt with easily. Wife’s custody request was pending as the husband instituted the complaint in another position in a court.

As the essence of both cases was the same, the transfer request was submitted by the wife in the same session. The husband made no claim that the prosecution of the proceeding was stopped due to financial problems at the location where the appeal for wives was pending. It should not be believed that the husband was prejudiced by the very fact that he would have to take the journey

Therefore, taking into account the reality of this situation, the husband’s lawsuit will be moved. Devi’s Basanti v. Mst. Sahodra, in the situation in which Section 22 of the CPC was construed, it was decided that the convenience of the parties alone should not be weighed in an appeal for transfer pursuant to Section 22 of the CPC, but that the entirety of the circumstances should mean that a suit should be brought before a Court other than that preferred by the appellant.

The sole comfort of the party is therefore not necessary for a lawsuit to be moved from one court to another.

Notice:

It is compulsory, in compliance with section 22 of the Code of Civil Procedure, to state the time and to provide notice of the application. Notice should be issued to all the parties involved in the proceedings, whether as the claimant or the defendant, and only to the opposed parties.

Under the rules of this section, notice of an appeal must be issued before it is made to each and every party to the suit and to the judge. However, it was held that the deficiency may be corrected by the notice on the application itself. However, without notification, an order of transfer is beyond jurisdiction.

Suit for Stay:

Section 20 of the code called for the stay of trial in order to oblige the complainant to put proceedings before another judge. This clause is further omitted and, in sections 22 to 24, appropriate clauses have been included.

But where there is violation in this procedure, the court will sit on a suit. The fact that both the parties and the witnesses of the defendants were natives of Wardha in the Central Provinces (now Madhya Pradesh) was not held in a case filed in the Bombay High Court to justify an order for the stay of the litigation.

Who may apply?

In Section 22 of the CPC, the complainant has the right to bring a case to any appropriate court and can apply for the transfer of the case when the defendant becomes aware of the intent of the complaint. In relation to such a move, the court must also recognize the objection, if any, made by the complainant.

Furthermore, after the clearance of the objection, the court will refer the case to a court which is competent to deal with the issue.

Parts 22 and 23 are inter-related. Section 22 determines the defendant’s power to apply in the lawsuit, and section 23 sets out the terms under which the transfer can be required.

Conditions for transfer:

  1. The suit or other proceeding must have been pending in a court competent to try it.
  2. The transfer court must be subordinate to the court making transfer order.
  3. 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?

  1. It is seen in accordance with Section 23.
  2. An submission u/s 22 shall be rendered to the appeal court where the various courts having jurisdiction are subordinate to the same appeal court.
  3. Where such courts are subordinate to numerous courts of appeal except to the same high court, the plea shall be rendered to the high court.
  4. Where those courts are subordinated to various courts within the geographical borders of the territory in which the court in which the action is brought is held.

Grounds for Transferring:

  • It is almost the responsibility of the judiciary to give away justice to satisfy the conclusion of justice and justice should be delivered in such a way that positive message can be achieved, society should be delivered in such a way that court confidence should be sustained. The court should have an extra moral imperative to keep the interest and trust alive.
  • The desirability of getting the ultimate adjudication of a given conflict.
  • When there is a serious law issue involved.
  • Preventing the misuse in legal hearings
  • Delay and needless spending to prevent
  • If the judge is biased or just involved in one part,
  • In two separate cases, where a similar question of fact and law occurs,
  • If two persons brought a lawsuit in a related case but in separate jurisdictions,
  • To discourage trials or contradictory decisions from spreading.

Hearing of objections:

No challenge to jurisdiction as to the position of trial under Section 21 of the CPC shall be permitted by any appeal or review court until such objection has been received at the earliest practicable moment by a court of first instance except in all cases where matters are resolved at or before such settlement and whether there has been a resulting miscarriage of justice.

Section 22 of the CPC provides the right to transfer litigation that may be brought in more than one court-if a complaint may be instituted in either of the two or more courts and is instituted in one of those courts, any claimant may at least have the ability to have the lawsuit transferred after warning to the other parties except in any cases where disputes are settled at or prior to such settlement.

Section 24: Withdrawal and Transfer of suits:

Section 24 empowers the High Court and District Court to pass or cancel or move at any point any pending litigation, appeal or any proceeding from any inferior court to the aggrieved party, without stating any justification in the provisions.

Scope of Section 24:

Sub-section (1) of Section 24 vests general authority in the High Court and District Court to pass or cancel a case at the behest of any side after notice to the parties. This action could be a continuing suit or appeal or other proceeding at any point. The suit can be moved from one court to another, but the former court should be similarly qualified.

This provision further empowers the High Court to use its right to protect the parties’ fairness and convenience. The High Court also has the right to suo moto under this provision to delete any case from the lower court and to adjudicate or assign it to any other competent court.

The principle of moving a case from one court to the next can and should not be simply assumptions or potential anticipation. The right to move a case from one Court to another must be exercised in the light of proper care and warning that there should be no excessive, dishonorable or unjustifiable embarrassment or slur on the part of the Court from which the case is moved.

A move is often pursued where two or more associated suits are primarily tried by common parties and subject matter so that they are clubbed together and attempted or adjudicated in one case. The jurisdiction of the High Court under section 24 does not, however, impose on the High Court the power to pass suits from courts of one state to another

This limits the authority under the jurisdiction to pass the suits. Where an appeal is lodged against an order issued by a learned single High Court Judge pursuant to Section 24, the Division Bench must be unwilling to intervene in the matter unless it is manifestly unconstitutional and incorrect or induces severe and significant injustice.

In Alia Subbareddi v. Lanki Reddi Narayanaswatni Reddi and Ors, the Court held that where an application for transfer to the High Court of Appeal is made pursuant to Section 24CPC and a notice is ordered, it is in the context of the original proceedings within the scope ofSection141 CPC and proceedings are available pursuant to the Code with respect to the proceedings.

In the aforementioned opinion, the Division Bench of the Madras High Court, consisting of Rajamannar, C.J., and Viswanatha Sastri, J., agrees that the proceedings pursuant to Section 24 CPC are initial proceedings. Commissioner v. R.V. in the Municipality of Srirangam served by its Executive Authority Pillai Palaniswami.

Convenience of parties

The convenience of the parties is to be used as an appropriate basis for making a move pursuant to Section 24, particularly when it is appropriate for the parties to reach unique diverse platforms. The case could be moved to the same court if all suits present regular defence and problems.

At the Madras and Bombay High Courts, three cases were pending in relation to the declaration of the rights of distribution of one film. The Supreme Court ordered the stay of further litigation in the Bombay suit and the immediate dismissal of the Madras suit, and the Bombay suit was not moved to Madras under the terms.

Suo Motu transfer of cases:

Under Section 24 of the Code of Civil Procedure, authority is exercised by the High Court in relation to the transfer of a case, an appeal or a review, and the District Court is not bound by any application filed by any side. In the matter of suo moto, judges of the High Court and District Courts have unlimited rights.

Under section 24 of the CPC, the High Court may move an appeal from one court to another on the basis of an application obtained by one of the parties for the transfer of a suit.

Section 24 does not define the justification for shifting a case from one court to another, although there are some rules and reasons for moving cases from one court to another.

For the transition of proceedings, analysis of evidence and laws needs to be taken into account.

Section 24 also requires the High Court to pass cases from one court to the other.

In Appukuttan v.Z. Thomas Zakaria, The Madurai Bench of Madras High Court held that after the trail has started, the Session Judge has no right to remove or move the trail to any other court of another Additional Judge or Session Judge, but before the beginning of the trail, the Session Court has every power to withdraw the session case and it can be done either by appeal or suo motu.

As provided for in the case of Dr. Rajnath v. L. by the Allahabad High Court. Vidya Ram & Ors., as the issues have already been framed and the appeal has been made after five months of the framing of the issues, no prior notice is granted as provided for in Section 22, which is mandatory in nature, and hence this request is not maintainable under Section 24 of the Civil Procedure Code.

General Power of Transfer of case:

This section includes general power to refer to the High Court or District Court for trail any suit, appeal or any other proceedings pending before any inferior court. This clause is wider than the terms of Section 22. It can be practiced without any appeal at any point of the proceedings and even suo motu.

Andhra Pradesh urged the government to shift those jurisdictional areas of the courts to other courts where the number of cases was low only so the number of pending cases was decreased. It was held that there was little in the government’s notification of unconstitutional and unlawful

Transfer of suits from Additional District Judge to D.R.T.

The tribunal, like the D.R.T., did not agree with the rules of section 24, in fact with respect to the specific provisions of the special enactment, section 24 of the C.P.C. was not applicable and, on appeal, the proceedings were transferred to one in compliance with Article 227 of the Constitution.

Sub-section (5) has been inserted in the Code of Civil Procedure (Amendment) Act, 1975, which specifies that under this section a suit or proceeding can be moved from a court that does not have a ward to prosecute it.

In Murarilalv in. Ramanlala, court said that Section 24(5) shall allow a court to pass directions despite pending prosecutions to move. When considering the retrospective functioning of a procedural rule, it essentially ensures that even ongoing cases would be reflected by the system’s modified law.

Nevertheless, the concept of retrospective does not go out to say that if an order that had no legal viability when it was enacted has been passed as of today, it would obtain such lawful approval in view of the consequent modification of the statute.

Obviously, whether, directly or by strong inference, the amending legislation proposes that even directives previously passed as of now be affected ex post facto by the amending clause, the Lawmaking Body is prepared to do so as well.

However, the newly added section 24(5) does not have either an express or proposed meaning. It sets out that a suit or proceeding may be moved under this clause, looking at the phraseology, which is explicitly made usable later on. It is not prepared to lead itself to an elucidation that, in the light of this section, the orders that were so passed before, which needed legitimacy when they were so passed, would get legitimacy.

Section 25: An Application for transfer of Suit under Section 25

Section 25 of the Code of Civil Procedure authorizes the Supreme Court to move, from the High Court or from another civil court in one State to the High Court or from another civil court in some other State, any lawsuit, appeal or other proceedings.

The Supreme Court could exercise this authority if it determines that it is convenient for the end of the justice to satisfy the order under this clause. The Supreme Court is then given the strong powers to order a move if the court feels that the end of the court is so important.

The prerequisite to justice must be the basic idea for the transfer of a case under Section 25 of the CPC. It may not be necessary for the exercise of power to exercise the negligible comfort of the parties or any of them, but it can try to be seen that trial within the chosen venue will cause denial of justice. The Court held that if the ends of justice so requested and the transfer of the suit are basic, there can be no pause in moving the lawsuit.

The dominus litis’ right to chose the venue and recognize the ease of the appellant and so on should not confuse the prerequisite of justice. Justice must be served regardless of what; if the transfer of the case is necessary, from” one court to another.

This clause has been invoked regularly in family affairs and, for the most part, in the case of the partner. At the stage that the couple lives separately and the husband registers – a separation motion or brings separate processes under the law defining union and separation at the location where he stays, which is usually the place where the parties last resided together, the wife, who has moved to her parental home on a daily basis, moves for relocation either on the ground that she can’t stand to travel or that she can’t leave her child or that she confronts dangers when she goes to defend the proceedings.

Devendra Ojha v. RamajorShitla Prasad Ojha in Shiv Kumari case, The court rejected the move from Gujarat to U.P of the application for the issuance of a succession certificate on the basis that the respondent was prepared to pay the travel expenses. The Court further claimed that if, due to an economic issue, the complainant faces some trouble in handling any counsel, she may file an application to recover from the respondent the sum paid for the same.

Grounds:

Right of the Plaintiff:

The plaintiff is Dominus Litis. Dominus Litis is a person to whom the suit belongs and who has a clear and true interest in the suit. He has the freedom to select his own forum, and this right of the claimant will not usually be limited by either the judge or the court. It was mentioned in section 22. The court in Indian Overseas Bank v. Chemical Construction Co. holds that the appellant is the dominus litis and is entitled in every venue allowed by the court to institute his suit. The platform can not be altered marginally and the individual can not be required to go to another court with a consequential rise in the inconvenience and cost of pursuing his suit.

Balance of Convenience:

The opinion of  unanimity  that the balance of convenience for the transition of suit is of prime concern. The balance of ease of speech has inspired a deep legal principle and many judicial interpretations have been achieved through the gloss. It is a matter of fact, reaffirmed in clear terms. The balance of ease is not the convenience of either the claimant alone or the defendant alone, nor of both. The court must take five problems into account in deciding the balance of convenience for the course of a suit. The problems are –

  • Convenience or inconvenience of the plaintiff and right of the plaintiff to choose his own forum. The inconvenience that could have caused to the defendant if the suit would have taken place in the forum chosen by the plaintiff may now be caused to the plaintiff if the suit will get transferred to other forum.
  • Convenience and inconvenience of the defendant.
  • Convenience and inconvenience of the witness that is required for the proper institution of the suit.
  • Convenience and inconvenience of a particular place of trail having regard to the nature of the evidence on the main points involved in the suit and also having regard to the doctrine of forum convenience

Justice:

A quest for justice should take place and the Court must be assured that justice will be more likely to be served by the parties by not allowing the plaintiff to proceed the appeal in the venue of its own choosing. While a material factor, a simple balance of convenience in favor of the directions of other forums may not necessarily be a definite condition justifying the move.

The court held in Indian Overseas Bank v. Chemical Construction Co. (1979) that a material consideration could not necessarily be a genuine condition legitimizing the move only balance of convenience for prosecutions in another Court, yet.

The power granted to the Supreme Court under Section 25 C.P.C. to move civil cases to another Court is far more detailed as it is the adequacy of the word “convenient in the interests of justice” and follows a general rule for the exercise of the power. The plaintiff as arbiter is thus entitled to choose any venue that makes him. And it has been held that it is a right of substance, such as the right to appeal. However, it is subject to regulation in compliance with sections 22-24. It is the applicant’s duty to make a good case for a move.

In favor of the trials in another forum, As a mere balance of convenience is not sufficient ground, although it is a significant factor. As a general rule, whether the costs and challenges of the proceedings is so considerate as to lead to discrimination or the complaint was filed in a special court for the reasons of working injustice, the court could not intervene.

In favor of the trials in another forum, Asmere balance of convenience is not sufficient ground, although it is a significant factor. As a general rule, whether the costs and challenges of the proceedings is so considerate as to lead to discrimination or the complaint was filed in a special court for the reasons of working injustice, the court could not intervene.

Reasonable apprehension in the party’s context that in the forum where the suit is pending, he may not get justice. It was retained in Raghunandan v. G. by the tribunal. H. Chawla that a lawsuit must be exchanged where a respondent to a suit has a fair realization that he will not get justice in the court where the case is pending. This may be on the premise that the judge is biased or on the basis that no single prosecution is practicable in the’ surcharged environment.

If the balance of convenience – In a Jotendro nath v. Raj Kristo suit where the parties were citizens of Calcutta in a partition suit instituted in the court and the main portion of immovable property was also located in Calcutta, the suit was moved solely for convenience to the original side of the High Court of Calcutta on the land.

Transfer not allowed:

In Indian Overseas Bank v. Chemical Construction Co. it, the mere balance of convenience to the claimant was held by the court that, while a material thought, the mere balance of convenience for the trail in another court could not necessarily be a genuine requirement legitimizing the move.

Judge making adverse findings on the facts of the litigation’ In the case of Gujarat Electricity Board & Anr v. Atmaram Sungomal Poshani, the court held that no right to get a complaint moved to any other Bench could reasonably be claimed merely in the light of the fact that the Judges shared their conclusion on the merits of the lawsuit at the conclusion of the hearing.

In the case of Madan lal v. Babul lal, if the judge makes an incorrect order, the court found that the simple fact that an erroneous order was passed is not in itself a justification for move, since it does not actually lead to an assumption of prejudice.

The simple fact that, in the case of Dr. Subramaniam Swamy v. Ramakrishna Hegde, the opposing party is a man of local power, the court held that if the suit is moved as requested, no discrimination, even less significant prejudice will be caused to the respondent.

CONCLUSION

With due consideration, commitment and the pursuit of justice, the power of transition must be exercised. Conflicting rights should be determined by the judge. Justice is the supreme concern and the court shall not delay if the ends of justice warrant the relocation of the case.

But there are some drawbacks where it is possible to move cases or where inconvenience and uncertainty can be in circumstances under which it can be accomplished or cannot be done. Related considerations for the relocation of cases have to be weighed.