TRANSFER OF SUITS

Sections 22 to 25 enact the law as regards transfer and withdrawal of suits and appeals from
one court to another court. Section 22 read with Section 23 enables the defendant to apply for
transfer of a suit while Section 24 empowers High Court and District Court and Section 25
empowers Supreme Court to transfer any suit or appeal either upon application made by the
party or Suo motu.

Transfer of Suit

Who may To what court General Power of Power of Supreme

apply application lies Transfer Court to transfer
Section 22 Section 23 Section 24 Section 25

Defendant District Court &

High Court

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

Section 22 allows whom to make an application for transfer of a suit? Defendant.

Section 22 provides that the defendant may apply to the court for transfer of suit to another
court in case a suit may be instituted in any one of two or more courts. Before transfer is
ordered under Section 22, following conditions must be satisfied:

1) Notice is given to the other party.

2) The application must be made at earliest possible opportunity either at before or settlement
of issues.

Hearing of Objections:- After Notice is served to the other party, the court must decide that
application of transfer after hearing of objections of the opposite party.

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Suo-Motu Transfer:- Over and above an application by a party to the suit, High Court &
District Court has power to transfer the suit or appeal even suo-motu under Section 24.
However, Section 25 does not provide for suo-motu transfer of the suit or appeal by the
Supreme Court.

The court after considering such objection raised by the other party, shall determine in which
court the case shall be transferred.

Section 23: To What Court Application lies

This Section indicates in which court application can be made:

1. Subordinate to same Appellate Court- Where the several courts having jurisdiction are
subordinate to the same Appellate Court, application shall be made to the Appellate
Court.
2. Subordinate to different Appellate Court- Where such courts are subordinate to
different Appellate Court, but to the same High Court, the application shall be made
to the said High Court.
3. Subordinate to different High Courts- Where such courts are subordinate to different
High Courts, the application shall be made to the High Court within the local limits of
whose jurisdiction the court in which the proceedings first commenced is situated.
This is called First Commencement Rule.

Governing factor as to rule to transfer of an application under Sections 22 & 23.

1. Balance of convenience is a factor to be look into.

2. Prior notice to the parties i.e. served notice to the parties and it is based on principle
of natural justice.

GENERAL POWER OF TRANSFER AND WITHDRAWAL [SECTION 24]

Section 24 contemplates general power of High Court and District Court for transfer and
withdrawal of civil suits.

A suit can be transferred or withdrawn at any stage either on the application of either party
after notice to the parties and after hearing as desired to be heard or suo motu, without such
notice.

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The court will order for such transfer or withdrawal after notice and hearing of both the
parties.

The court can transfer any suit, appeal or proceedings pending before it for trial or disposal to
subordinate court.

The court can withdraw pending suit, appeal or proceedings in any subordinate court and try
or dispose of the same, or transfer the same for trial or disposal to any subordinate court or
can re-transfer the same to the court from where it was transfer or withdrawn.

Q. What will be done if there is a transfer or withdrawal?

Ans. Sub-Sec (2) of Section 24 says in case of transfer or withdrawal, the court may either
re-tried or proceed from the point at it was transfer or withdrawn.

De Novo trial: Fresh trial or start from where it is left i.e. transfer or withdrawn.

The proceeding under Section 24 even includes execution proceedings. Here, transfer may
include transfer from a court which has no jurisdiction, i.e. transfer to those court who has no
jurisdiction.

Difference between Sections 22, 23 and 24.

Under Section 22 & 23 both court have jurisdiction i.e. transferor court as well as transferee
court. Alternative Court also have jurisdiction.

But in Section 24 it may be different as well as same thing. There may be transfer in
competent as well as incompetent court.

Transfer may be made from a court which has no jurisdiction to try it [Section 24 (5)]

Section 24 is a Two Way Process.

Subordinate Court Higher Court

Higher Court Subordinate Court

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In Durgesh Sharma v. Jayshree1, the Supreme Court held that the power under Section 24
does not authorize a High Court to transfer any suit, appeal, etc. from a court subordinate to
that High Court to a court not subordinate to that High Court under Section 23(4) or Section
24.

Section 24 merely confers a discretionary power on the court. The section does not prescribe
any ground on which the case can be transferred. Transfer can be made for administrative
reason as well. The court is required to issue notice to the other party before ordering transfer
of case.

In M.V. Ganesh Prasad v. M.L. Vasudevamurthy2, the Court observed that the apprehension
of bias in the mind of the petitioner seeking for transfer of a case should be reasonable and
bona fide otherwise the transfer application would be rejected. It is very necessary for the
court to examine the argument in support of an application seeking for transfer made under
Section 24 of CPC objectively, impassionate and in the totality of the circumstances.

In Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation 3,
the Apex Court held that “Only Civil suits are subject matter of Inter-State transfer from one
civil court to another civil court. Sub-Section (5) of Section 24 of CPC provides that a suit or
proceeding may be transferred from a court which has no jurisdiction to try it. The power to
transfer one case from one court to another or from one tribunal to another is to be exercised
only if an exceptional situation arises and not otherwise. Rules of procedures are intended to
provide justice and not to defeat it.”

Section 25: Power of Supreme Court to transfer Suits, etc-

The Supreme Court on the application of a party supported by an affidavit, after notice, and
after hearing such of them as desire to be heard may at any stage of the suit, transfer any suit,
appeal or other proceedings from one Civil Court or High Court of one state to another Civil
Court or High Court of another state if it is expedient for the ends of justice. The Supreme
Court may also dismiss a frivolous or vexatious application and impose penalty of a sum upto
Rs. 2000. The transferee court may either retry it or proceed from the stage of transfer of such

1
(2008) 9 SCC 648
2
AIR 2003 Kant 39
3
(2009) 8 SCC 646
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suit, appeal or proceeding and shall apply the same law which would have been applied by
the original court.

The Supreme Court’s power to transfer suits is not curtailed or excluded by Sections 21 and
21 A of the Hindu Marriage Act, 1955. It can transfer suit for judicial separation by the wife
and that by the husband for restitution of conjugal rights filed in two different states to have
joint or consolidated hearing or trial of both the petitions by one and the same court in order
to avoid conflicting decisions being rendered by two different courts4.

Grounds for transferring the case

The power of transfer must be exercised with extreme caution and circumspection and in the
interest of justice. The court while deciding the question must bear in mind two conflicting
interests: (i) as a dominus litis the right of the plaintiff to choose his own forum,

(ii) the power and duty of the court to assure fair trial and dispensation of justice 5.

In Indian Overseas Bank v. Chemical Construction6, it was held that balance of

convenience is prima facie consideration for transfer of a suit. Balance of convenience is
neither convenience of plaintiff alone nor of the defendant alone, but of both. Convenience of
witness required for proper trial of the suit, and the convenience of the particular place of trial
having regard to the nature of the evidence on main points involved in the suit and doctrine of
forum convenience are relevant factors.

An order to transfer is not appealable; it is open to revision.

4
Guda Vijayalakshmi v. Guda Ramachandra Sastry, AIR 1981 SC 1143
5
Aarvee Industries v. Ratan Lal, AIR 1977 SC 2429
6
AIR 1979 SC 1514
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