Transfer of Suits
Chapter Nine
Syllabus topic none names it. Sections 22 to 25 fall inside Module I's printed range, "Section 2 to Section 25", and no topic label mentions them.
Pages 53 to 56 of 365
In one line
Where a case could properly have been filed in more than one court, or has ended up in an unsuitable one, the Code lets it be moved.
Sections 22 to 25 hold three different powers, and the exam confusion between them is entirely about who applies, and to whom.
Why the Code has these sections
The rules on place of suing in sections 15 to 20 often give a plaintiff a genuine choice of courts. Where a cause of action arises partly in Nagpur and partly in Mumbai, either will do, and the plaintiff picks. That choice belongs to the plaintiff and the Code does not take it away.
But the plaintiff's convenience is not the only thing that matters. The defendant may face real hardship in the chosen court, witnesses may all be elsewhere, two connected suits may be running in different districts, or the atmosphere in one place may make a fair trial doubtful. So the Code provides a way to move a case without disturbing the underlying rule that the plaintiff chose a court he was entitled to choose.
Notice what these sections are not. They do not cure a want of jurisdiction. Transfer presupposes that the court has jurisdiction; the question is only whether some other competent court is a better place. A court with no jurisdiction does not need transferring, it needs to return the plaint.
The three powers, and who invokes each
| Section 22 with 23 | Section 24 | Section 25 | |
|---|---|---|---|
| Who applies | A defendant | Any party, or the court on its own motion | A party |
| To whom | The appellate court or High Court under section 23 | High Court or District Court | The Supreme Court |
| When | At the earliest opportunity, and where issues are settled, at or before settlement | At any stage | Any time |
| Moves a case | Between courts having concurrent jurisdiction | Between a court and any court subordinate to the transferring court | From one State to another |
| Scope | Suits only | Suit, appeal or other proceeding | Suit, appeal or other proceeding |
Learn that table. Almost every question on this topic is really asking which of the three columns applies to the facts given.
Section 22, the defendant's objection to the plaintiff's choice
Section 22 provides that where a suit may be instituted in any one of two or more Courts and is instituted in one of them, any defendant, after notice to the other parties, may at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court. The Court to which the application is made, after considering the objections of the other parties, shall determine in which of the several Courts having jurisdiction the suit shall proceed.
Transfer of Suits
Three features are worth pulling out.
It is the defendant's section. The plaintiff chose; this is the answer to that choice.
It carries a time limit in the same words as section 21: at the earliest possible opportunity, and where issues are settled, at or before their settlement. The reasoning is identical, and worth carrying over from [Objections to Jurisdiction]: a party who lets the trial run cannot complain about the venue afterwards.
It applies only where the suit could properly have been filed in more than one court. If only one court had jurisdiction, there is no choice to complain about and section 22 has no work to do.
Section 23 then says where that application goes. Where the several competent courts are subordinate to the same appellate court, the application is made to that appellate court. Where they are subordinate to different appellate courts but the same High Court, it goes to the High Court. Where they are subordinate to different High Courts, it goes to the High Court within whose limits the court in which the suit was brought is situated.
Section 24, the general power
Section 24 is much wider and it is the one used in practice.
On the application of any party, after notice and hearing, or of its own motion without such notice, the High Court or the District Court may at any stage transfer any suit, appeal or other proceeding pending before it to any court subordinate to it and competent to try it; or withdraw any suit, appeal or other proceeding pending in any subordinate court and either try it itself, or transfer it to another competent subordinate court, or send it back to the court it came from.
Four things separate section 24 from section 22.
No time limit. "At any stage".
The court may act on its own motion, and without notice, which section 22 does not allow.
It covers appeals and other proceedings, not only suits.
It includes the power to withdraw and to retransfer, so the High Court or District Court can pull a case up, look at it, and send it back.
Where a case has been transferred or withdrawn, the court that is thereafter to try it may, subject to any special directions, either retry it or proceed from the point at which it was taken over.
Section 25, across State lines
Section 24 works downwards within one hierarchy: a High Court can reach its own subordinate courts, a District Court its own. Neither can reach into another State.
That is what section 25 is for. It gives the Supreme Court power to transfer a suit, appeal or other proceeding from a High Court or other civil court in one State to a High Court or other civil court in another State. It is the only route when the two courts sit under different High Courts in different States.
Transfer of Suits
A worked example
Priya, who lives in Mumbai, sues Ravi, who lives in Nagpur, on a contract made in Mumbai and to be performed in Nagpur. On sections 16 to 20 either court will do, and she files in Mumbai.
Ravi wants it moved to Nagpur. His route is section 22. He must apply after notice to Priya, at the earliest possible opportunity, and in any event at or before the settlement of issues. Under section 23, because the Bombay City Civil Court and the Nagpur court are subordinate to the same High Court, the application goes to the High Court.
Ravi does nothing until after issues are framed. He is out of time under section 22. His remaining hope is to persuade the High Court to act under section 24, which has no time limit, but that is a discretion and not an objection he is entitled to press.
A related suit between the same parties is pending before another judge in the same district. Either party, or the District Court itself, can move under section 24 to have the two tried together. No notice is even required if the court acts on its own motion.
Now change the geography. Suppose the second suit is pending in Bengaluru, under the Karnataka High Court. Section 24 cannot reach it, because neither High Court is superior to the other. The only route is section 25, an application to the Supreme Court.
And a caution. Suppose the Mumbai court had no jurisdiction at all. None of these sections is the answer. Transfer assumes jurisdiction; where there is none the plaint is returned under Order VII Rule 10 to be presented to the proper court.
What it does not mean
Transfer does not cure a want of jurisdiction. These sections move a case between courts that could each have tried it.
Section 22 is not available to the plaintiff. He made the choice.
Section 24 is not confined to suits, and unlike section 22 it is not confined to cases where the plaintiff had a choice.
A District Court cannot transfer to another District. Section 24 reaches only courts subordinate to the court exercising the power. Across States, only section 25 will do.
Inconvenience alone is not a ground made out. These are discretionary powers exercised on the balance of convenience and the interests of justice, not on a party's preference.
Transfer of Suits
Quick revision
Section 22: a defendant may apply to transfer where the suit could have been filed in more than one court, at the earliest opportunity and at or before the settlement of issues. Section 23 says where the application goes: same appellate court, that court; different appellate courts under one High Court, the High Court; different High Courts, the High Court where the suit was brought.
Section 24: the High Court or District Court, on application or of its own motion, at any stage, may transfer or withdraw any suit, appeal or proceeding to or from a court subordinate to it, try it itself, or retransfer it. The receiving court may retry or continue from where it stopped.
Section 25: the Supreme Court transfers between States.
None of them cures a want of jurisdiction.
Test yourself
1. A suit could have been filed in either of two courts and was filed in one. Who can apply to move it, and by when? Any defendant, under section 22, after notice to the other parties, at the earliest possible opportunity, and in all cases where issues are settled at or before their settlement.
2. Where is a section 22 application made? Under section 23: to the appellate court where the competent courts are subordinate to the same appellate court; to the High Court where they are subordinate to different appellate courts but the same High Court; and where they are subordinate to different High Courts, to the High Court within whose limits the court in which the suit was brought is situated.
3. Give three ways section 24 is wider than section 22. It may be exercised at any stage rather than only up to the settlement of issues; the court may act on its own motion and without notice; and it covers appeals and other proceedings as well as suits, and includes powers to withdraw, to try the matter itself, and to retransfer.
4. Two connected suits are pending in Mumbai and Bengaluru. Which section moves one to the other, and to which court do you apply? Section 25, and the application is to the Supreme Court, because the two courts are under different High Courts in different States and section 24 reaches only courts subordinate to the transferring court.
5. The court in which the suit was filed had no jurisdiction at all. Is transfer the remedy? No. Sections 22 to 25 presuppose that the court has jurisdiction and are about choosing between competent courts. Where the court has no jurisdiction the plaint is returned under Order VII Rule 10 for presentation to the proper court.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.