SYNOPSIS

1. Introduction
2. Transfer of Suits

• Ingredients
• Situations when a transfer can happen

3. Caselaws
4. Stay of Suits

• Ingredients
• How does the rule apply

5. Caselaws
6. Conclusion
7. References

INTRODUCTION

 

Many times it happens that due to some difficulty a suit may be required to be transferred to some other court. In order to address these issues, the Civil procedure, 1908 (CPC) has given power to the courts to deal with such issues and transfer the legal proceedings to another court of competent jurisdiction if the ends of justice demand so.

The Code in sec 10 has incorporated a doctrine of Res Subjudice whose primary objective is to prevent the multiplicity of proceedings. The objective is to prevent the court from unnecessarily adjudicating and entertaining parallel litigation between the same parties for the same cause of action.

Transfer of Suits (Sec 24 & Sec 25)

 

• In certain situations, it might happen that the legal proceedings or a suit may be bonafide required to be transferred from one court to another court. This has been dealt with in section 24 of the CPC.

 

• The power has been vested in the court i.e., high court and the district court under sec 24 of the CPC to transfer or withdraw a case and the supreme court has been vested with the power under section 25 of the CPC.

 

• It is a discretionary power that has been provided to the court to transfer a case. Therefore the court may or may not allow such a transfer.

 

• There are no grounds which are prescribed for allowing or rejecting the transfer of a case. The transfer may happen by either a suo motu order of the court or may even take place for purely administrative reasons.

 

• A party may also make an application to the court under this section for transferring a certain case. Generally when a party makes an application for such a transfer the party has to show the bonafide requirement of such a transfer. A notice is issued to the other party before taking a decision and both the parties heard by the court.

 

• When the High Court or the district court makes an order suo motu to transfer the case, then in such a case no notice is given to the parties, however when an application is preferred for such a transfer, then the notice is issued to the other party for being heard.

 

• The power is a discretionary power and is a very wide one. However there are certain limitations to this power. Such a power is used to transfer the cases only in a case which is of a coordinate jurisdiction or otherwise.

 

• The transfer of a legal proceeding or withdrawal can be allowed at any stage even after the hearing of the matter has started or in the course of execution proceedings.

 

• It also needs to be borne in mind that an application for a transfer is a separate proceeding and the orders to follow from the transfer application cannot be characterised as an order passed in the pending legal proceedings for whose transfer the application of transfer has been moved.

 

·       Ingredients

 

The following ingredients can be culled out from the discussion above:

1. Vested with High Court and District Court u/s 24 of CPC;
2. Vested with the Supreme Court u/s 25 of CPC;
3. Tranfer or withdrawal in terms of sec 24 can happen in courts of coordinate jurisdiction;
4. Transfer in terms of sec 25 can happen from one high court to another high court or from one civil court of one state to another civil court of different state;
5. The transfer can happen either suo motu or on an application by a party;
6. When a transfer happens suo motu, then no notice to the parties is to be given;
7. When a transfer happens on an application made by a party then it is mandatory to issue notice to the other party.

·       Situations when a transfer can happen

 

• As already noted above, these powers are discretionary and have to be used by the court sparingly and after a close scrutiny of the facts in hand warranting such a transfer. The transfer cannot happen on the whims and fancies of the parties and there must be excruciating factors which warrant such a transfer.

 

• A transfer application may be entertained when it is shown that the ends of justice warrant such a transfer.

 

• If there is hardship which is being caused in the recording of evidence and the evidence cannot be produced in that court and can only be adduced in another court, then such factors can be kept in mind by the court.

 

• When there is a possibility that it would be in the interest of justice to transfer the case, then such a transfer can be allowed by the court.

 

• The transfer cannot merely happen for the convenience of the parties and court has to satisfy itself that the transfer is a bonafide need and justice will prevail if such a transfer happens.

 

• When the court feels that a party will not have a fair trial, then in such circumstances the court may allow a transfer.

CASELAWS

 

• In the case of Kulwinder Kaur v. Kandi Friends Education Trust, 2008 (3) SCC 659, it was held that the discretionary power under sec 24 and 25 cannot be put in straight jacket formula but the same needs to be approached with caution and due care.
• It was further held that some instances that can be the grounds for transfer are the interest of justice; reasonable apprehension in the mind of the litigant that he might not get justice in the court trying the case; inconvenience with regard to the evidence, etc.

 

• In the case of Maneka Gandhi v. Rani Jethmalani, (1979) 2 SCR 378, it was held that fair trial is the integral part of the justice delivery system and if there are compelling reasons which show that one of the party will not get a fair trial, then it becomes necessary to use the power for transferring the case.

 

• In the case of Vivekananda Nidhi v. Asheema Goswami, 2000 (10) SCC 23, it was held that where a party to suit was not provided with a notice that the opposite party filed for the transfer of the suit, then such an order which allowed the transfer was required to be set aside since it contravened sec 24.

 

STAY OF SUIT (Sec 10)

 

• Sec 10 of the CPC has incorporated in itself a doctrine of public policy which strikes at multiplicity of litigation. This doctrine is also known as the doctrine of Res Subjudice.

 

• It is stated that no court shall try a suit in which the issues in hand are substantially and directly the same as in a pending suit before the same court or court a court which can grant the same relief claimed, between the same parties or parties under the same title.

 

• The explanation to sec 10 says that if a matter is pending in a foreign court then the same will not bar the jurisdiction of the Indian courts from trying such a suit.

 

• The provisions of the section are mandatory and will not apply when only a few issues are common. This doctrine will apply only when the whole subject matter is same.

 

• Once it has been established that the parties and subject matter is the same, the court is bound to stay the proceedings of the subsequent suit.

Ingredients

 

1. There must be a suit pending in the same court or competent court;
2. The issues raised are directly and substantially the same;
3. In a subsequent suit;
4. By the same parties or parties under the same title;
5. As in the pending suit;
6. The court is bound to stay the subsequent suit.

 

How does the Rule apply

 

• The test for finding out as to whether the rule of res subjudice will apply or not is to first see that whether the findings in the previously instituted case will operate as Res judicata on the subsequent proceeding or not.
• If it is seen that the decision in the previously instituted case will apply as res judicata then the subsequent proceeding has to be stopped. If the decision will not apply as res judicata then there is no need for staying the proceedings.

 

CASELAWS

 

1. In the case of National Institute of Mental Health and Neurosciences v. C. Parameshwara (2005) 2 SCC 256, it was laid down that the object behnd section 10 of the CPC is to stop courts of concurrent jurisdiction from adjudicating upon two parallel suits with regard to the same subject matter.
2. It was further held that the object is to avoid multiplicity of proceedings and to avoid recording of two separate conflicting decisions on the same subject matter between the same parties.

 

3. In the case of Aspi Jal v. Khushroo Rustom Dadyburjor2013 (4) SCC 2013, it was held that a court shall not proceed with trying another suit which has been instituted between the same parties on the same subject matter.
4. It was further held that the provision under section 10 is mandatory and the previous court in which the suit is pending should be of a competent nature to grant the relief claimed.

 

5. In the case of Indian Bank v. Maharashtra State Cooperative society, AIR 1998 SC 1952, it was held that the provision of sec 10 is a rule of procedure and the same does not affect the jurisdiction of the court to deal with the later case and it also does not create any substantive right in the matters.

• It was further held that sec 10 does not bar institution of a suit or the jurisdiction of the court to pass interlocutory orders such appointing receiver etc. the court cannot proceed with the trial but that does not mean that the court cannot entertain the suit for any other purpose.

 

CONCLUSION

 

In the end it can be concluded with regard to the power of the court under sec 24 and sec 25 of the CPC, that it is power which has been vested in the court to carry out its duty of justice delivery in totality. Many a times may be because of apprehension of denial of a fair trial or due to the extreme hardships of the parties, it may be warranted by justice and equity that a particular legal proceeding be tried by another court.

The power under sec 24 and sec 25 come to the rescue under such circumstances. However, it has been cautioned that the court merely for the convenience of the parties not entertain a transfer petition. It must be shown that a bonafide need arises and the court should after a proper scrutiny allow such an application.

With regard to the provisions under sec 10 of the CPC, it can be concluded that the same is a matter of public policy that has been incorporated by the CPC. The underlying principle is to avoid multiplicity of proceedings because it increases the burden of the court and also the possibility of two conflicting decisions.

Thus the power under sec 10 is a corrective measure which can be used by the court to stop such suits which are only going to lead to confusion and the unnecessary multiplicity of litigation between parties.