Whether High court
can transfer inter state cases
Section 24 and Section 25 of Code of Civil Procedure analysed
The
interesting aspect in law has recently been decided by Supreme Court in a
matter captioned as SHAH NEWAZ KHAN & ORS. versus STATE OF NAGALAND &
ORS. 1 2023 LiveLaw (SC) 146.
The
perceived quagmire involved Section
24 & 25 Code of Civil Procedure, 1908 which empowers the High Courts and
Supreme Court respectively for ordering transfer of civil cases from one place
to other place within the state as regards the High Courts and inter -state
transfer so far as Supreme Court is concerned. This follows that Supreme Court has
the power to transfer cases from different states to a common court, whereas
the power of the high court shall be confined to transfer of the case or cases
within state where the jurisdiction of the High Court extends. However, what
also emerges is that whether a High Court is empowered to order inter- state
transfer of cases i.e of suits, appeal or other proceedings? Generally speaking
a High court cannot order inter -state transfer of cases. However, if it is the
common High Court for two or more States, under Article 231 of the Constitution
and when both the Civil Courts (transferor and transferee) are subordinate to
it, then it is to be seen, if Section 25 applies to inter-State transfer of a
suit, appeal or other proceedings or whether such high court can order transfer
of such cases u/s 24 of the Code of Civil Procedure itself. It is this aspect which
shall be deliberated hereinafter.
Thus,
What shall be of paramount importance in the context is as to what will be the
situation if both States have a separate High Court in terms of Article 214 of
the Constitution or where both States have a common High Court under Article
231 thereof.
It
may be relevant to reproduce the Sections 24 and 25 of Code of Civil Procedure at
the very outset. The same is as under:-
24.
General
power of transfer and withdrawal.—(1) On the
application of any of the parties and after notice to the parties and after
hearing such of them as desire to be heard, or of its own motion, without such
notice, the High Court or the District Court may, at any stage—
(a) transfer any suit, appeal or other
proceeding pending before it for trial or disposal to any court subordinate to
it and competent to try or dispose of the same, or
(b)
withdraw any suit, appeal or other proceeding pending in any court subordinate
to it, and (i) try or dispose of the same; or (ii) transfer the same for trial
or disposal to any court subordinate to it and competent to try or dispose of
the same; or (iii) retransfer the same for trial or disposal to the court from
which it was withdrawn.
(2) Where any suit or
proceeding has been transferred or withdrawn under sub-section (1), the court
which thereafter tries such suit may, subject to any special directions in the
case of an order of transfer, either retry it or proceed from the point at
which it was transferred or withdrawn.
25.
Power
of Supreme Court to transfer suits, etc.—
(1)
On the application of a party, and after notice to the parties, and after
hearing such of them as desire to be heard, the Supreme Court may, at any
stage, if satisfied that an order under this section is expedient for the ends
of justice, direct that any suit, appeal or other proceeding be transferred
from a High Court or other Civil Court in one State to a High Court or other
Civil Court in any other State.
In SHAH NEWAZ
KHAN (Supra) Shortly put, the issue for the consideration of Supreme Court were
as under:
1. Is the Supreme Court the sole repository of power
in terms of section 25 of the Code of Civil Procedure to direct transfer of a suit, appeal or
other proceeding from a Civil Court in
one State to a Civil Court in another State? Or,
2. Is it open for a High Court, if it is the common
High Court for two or more States, to entertain an application for transfer under
section 24 of the CPC and transfer a suit, appeal or other proceeding from a
Civil Court to another Civil Court, both of which are subordinate to such High
Court but situated in different States in relation to which it exercises
jurisdiction, for consideration and decision?
HISTORICAL
PERSPECTIVE OF HIGH COURT OF NORTH EASTERN STATES
(i)
Earlier, the High Court of Assam was
in existence, and then Gauhati High Court
was named as the High Court of Assam and it was established on 5th April,
1948 in terms of the Assam High Court Order, 1948 made by the Governor General
in exercise of power conferred by Section 229 of the Government of India Act,
1935 and as adopted by the India Provincial Constitution (Amendment) Order,
1948. In terms thereof, the High Court of Assam was conferred, in respect of
the territories for the time being included in the province of Assam, all such
original, appellate and other jurisdiction as, under the law in force
immediately before the prescribed day, was exercisable in respect of the said
territories or any part thereof, by the High Court in Calcutta or by the
Governor of Assam exercising the functions of a high court.
(ii) In 1962, by an Act of
Parliament titled as the State of Nagaland Act, 1962, the State of Nagaland was
formed and it ordained that there shall be a common high court called the High
Court of Assam and Nagaland. The 1962 Act was followed by the North-Eastern
Areas (Re-organisation) Act, 1971. This enactment contained provisions for the
establishment of the States of Manipur and Tripura and for the formation of the
State of Meghalaya, and the Union territories of Mizoram and Arunachal Pradesh,
by reorganizing the existing State of Assam.
(iii) Part IV of the 1971 Act titled “High Court” contained Sections 28
to 43. Sections 28 and 29, being relevant are quoted below:
28.
Common High Court for Assam, Nagaland, Meghalaya, Manipur and Tripura.—(1)
On and from the appointed day,—
(a) the High Court of Assam and Nagaland shall
cease to function and is hereby abolished;
(b) there shall be a common High Court for the
States of Assam, Nagaland, Meghalaya, Manipur and Tripura to be called the
Gauhati High Court (the High Court of Assam, Nagaland, Meghalaya, Manipur and
Tripura);
(c) the Judges of the High Court of Assam and
Nagaland holding office immediately before that day shall, unless they have
elected otherwise, become on that day the Judges of the common High Court:
(2) Nothing in clause (a) of
sub-section (1) shall prejudice or affect the continued operation of any notice
served, injunction issued, direction given or proceedings taken before the appointed
day by the High Court of Assam and Nagaland under the powers then conferred
upon that Court.”
29. Jurisdiction of the common
High Court.—
“On and from the appointed day, the common High
Court shall have, in respect of the territories comprised in the States of
Assam, Manipur, Meghalaya, Nagaland and Tripura, all such jurisdiction, powers
and authority as under the law in force immediately before the appointed day,
are exercisable in respect of those territories by the High Court of Assam and
Nagaland or the Court of the Judicial Commissioner for Manipur, or the Court of
the Judicial Commissioner for Tripura, as the case may be.”
The State of Arunachal Pradesh Act, 1986 also came
in being as also the State of Mizoram Act, 1986. Thus, two new States were
born. A common High Court for the States of Assam, Nagaland, Meghalaya,
Manipur, Tripura, Mizoram and Arunachal Pradesh to be called the Gauhati High
Court (the High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram
and Arunachal Pradesh) therefore, came into existence. The jurisdiction of the
High Court of Assam and thereafter the Gauhati High Court thus, came to be
enlarged and extended to States other than Assam, all seven sister States in
the North Eastern part of the country agreed to bear the expenditure in respect
of the salaries and allowances of the Judges of the common High Court as shall
be allocated amongst the States in such proportion by an order of the
President.
(iv) In view of the provisions of the 1971 Act, till little over a decade
back, the Gauhati High Court was the common High Court for the seven sister
states. The jurisdiction of the said High Court extended throughout the
territories of Assam, Nagaland, Tripura, Manipur, Meghalaya, Mizoram and
Arunachal Pradesh. However, the 1971 Act came to be amended by the North Eastern
Areas (Re-organisation) and Other Related Laws (Amendment) Act, 2012 (for
brevity ‘the Amendment Act’) and it established separate High Courts for the
States of Meghalaya, Manipur and Tripura. Accordingly, the definition of
“common High Court” in section 2(d) of the 1971 Act was amended.
(v) Today, the Gauhati High Court is the common High Court exercising
jurisdiction throughout Assam, Nagaland, Mizoram and Arunachal Pradesh.
Therefore, all Civil Courts in these four States are subordinate to the same
High Court, i.e., the Gauhati High Court. Thus, it is a High Court which
earlier exercised its jurisdiction over seven different States and is presently
exercising jurisdiction over four different States. This is a unique feature in
the judicial spectrum of the country post-independence.
The
constitution of the High Court with its Principal Seat and the Permanent
Benches in the manner, as taken note of above, would indicate that all the
courts in all the said four States are subordinate to the Gauhati High Court
and since no separate High Courts are established in respect of Nagaland,
Mizoram and Arunachal Pradesh, a provision under the Notification dated
22.6.1990 is made for the establishment of the Permanent Bench at Aizawl.
Similar Notifications had been issued in respect of other two States.
The
Supreme Court has thus held that these aspects would leave no room for doubt
that the Gauhati High Court can exercise its power and jurisdiction over all
Courts in all the four States. If in that light, the provision as contained in
section 24 of the CPC, extracted above, is taken note, sub-section (1)(a) would
indicate that the High Court or the District Court may, at any stage, transfer
any suit, appeal or other proceeding pending before it for trial or disposal to
any court subordinate to it and competent to try or dispose of the same. If the
said provision is kept in view and the above noted discussion relating to the
establishment of the High Court and the Permanent Bench is taken note and in
that circumstance, when the subordinate court in the State of Mizoram as also
the subordinate court in the State of Assam is subordinate to the Gauhati High
Court, a transfer petition filed under section 24 of the CPC before the said
high court, even for transfer of a case from the subordinate court in any of
the four States, as indicated above, to the other State would be maintainable
from the very provision as contained in section 24 itself.
LAW
The
cases perused and interpreted while dealing the aforesaid issues are as under:
1. Pomi
Sengupta Vs Biswajit Sengupta (2015) GLR 396
2. Durgesh
Sharma Vs Jayshree (2008) 9 SCC 648
3. D
Saibaba Vs Bar Council of delhi & Anr (2003) 6 SCC 186
4. Megha
Jain Vs kartik Jain (2019) 6 GLR 379
5. Chalasani
Deepthi Vs Chalasani Chaitanya2015 SCC OnLineHyd 978
6. Irena
Blanch Khera Vs Glenn John Vijay 2018 (2)Mh.LJ 1996
7. Amarendra
Pratap Singh Vs Tej Bahadur Prajapati (2004) 10 SCC 65
In
the above perspective, a learned
Judge of the Gauhati High Court, which presently happens to be the common High
Court for the States of Assam, Nagaland, Mizoram and Arunachal Pradesh,
presiding over the Bench at the principal seat at Guwahati, rejected the
application for transfer by a judgment and order dated 10th December,
2015. While so rejecting, the learned Judge followed previous decision in Pomi
Sengupta vs. Biswajit Sengupta (Supra) which, in turn, had entirely
relied on the decision of the Supreme Court in Durgesh Sharma vs. Jayshree (Supra).
The
requisites for the purpose of analysis of the issues are narrated as under:
(a) The
Article 214 of the Constitution of
India ordains that there shall be a High-Court for each State. Article 231 of the Constitution of
India provides for the establishment of a common High Court for two or more
States.
(b)
The relevant provisions of the CPC for
the purpose of a decision on the present dispute are sections 22 to 25 read
with section 3 thereof dealing with subordination of courts.
(c)
The power of the High Court and the
District Courts to direct transfer of proceedings is provided in section 24 of
the CPC.
(d)
The facts of the instant case clearly
satisfy all the ingredients of section 24 CPC, more particularly, sub-clause
(ii) of clause (b) of sub-section (1) thereof.
(e)
A bare perusal of such provision 24
would indicate that the High Court may, at any stage, direct transfer of
proceedings pending before it to any court subordinate to it, or transfer
proceedings pending in any court subordinate to it to itself or to any other
court subordinate to it. Thus, the emphasis under the said provision is on the
expression "court subordinate to it". Section 3 of the CPC, inter
alia, defines the courts subordinate to the High Court. Thus, on a plain
reading of section 24 of the CPC, it is evident that the common High Court,
i.e., the Gauhati High Court, has the power and jurisdiction to direct
inter-State transfer of proceedings, provided both the transferor and
transferee courts are subordinate to it, and fall within its territorial jurisdiction,
which is the case here.
(f)
On a harmonious construction of
section 24 and section 25 of the CPC, it is clear that the latter will apply
only to inter-State transfer of proceedings between two States where the two
States in question have different High Courts, whereas, in a case involving
inter-State transfer of proceedings within the territorial jurisdiction of a
common High Court, the common High Court would have the power and jurisdiction
to direct inter-State transfer of proceedings of the nature stated above, in
exercise of its power under section 24 of the CPC.
What is of further relevance is that Report of the
Joint Committee, Lok Sabha of the Code of Civil Procedure (Amendment) Bill 1974
was passed on 1st April, 1976
specifying that the issue was raised by one of the North-Eastern States, i.e.,
State of Meghalaya. This related to conflict between sections 24 and 25 of CPC,
insofar as the North-East area is concerned.
Whereas Section 24(1)(b), CPC gives power to the
High Court to withdraw any suit, appeal or other proceeding pending in any
court subordinate to it and to transfer the same for trial or disposal to any
Court subordinate to it which is competent to try or dispose of the same. As
the State of Nagaland does not have a separate High Court, consequently, all
courts functioning in the State of Nagaland are subordinate to the Gauhati High
Court, being the common High Court for the States of Assam, Nagaland, Mizoram
and Arunachal Pradesh.
What is to be ascertained here is whether the
common High Court has the power to withdraw any suit, appeal or other
proceeding pending before any Court subordinate to it from one State and to
transfer the same to any Court subordinate to it, in another State, the
provisions of both sections 24 and 25 of the Code were to be examined as it
involves an inter-State transfer and not an intra-State transfer simpliciter.
As regards true import and meaning of the
provisions of Section 25(1) of CPC, the said provision will have to be read in
two parts as it contains two-fold power to direct any suit, appeal or other
proceeding to be transferred:
i.
From one High Court to another High
Court; or
ii.
From one Civil Court in one State to
another Civil Court in any other State.
Section 25 is the only provision in the CPC, which
refers to transfer of a case from a Civil Court in one State to a Civil Court
in another State. In view of the specific provision in section 25(1) of the
CPC, it is only the Supreme Court and no other court which has the power to
direct transfer of the suit instituted by a party from the Civil Court in one
state to the Civil Court in other state i.e from Nagaland to Assam.
The legislative intent appears to be that only
under section 25 of the CPC a direction that any suit, appeal or other
proceeding may be transferred from a Civil Court in one State to a Civil Court
in any other State and that can only be made by this Court.
ANALYSIS
Chapter V of the Constitution of India captions “The
High Courts in the States”. The Articles 214, 231, 227, 235 and 228 are of
particular relevance in the context. Having regard to the terms of pre-amended
section 25 of the CPC, if one looks back to history it would be evident that the
Gauhati High Court became the common High Court for the State of Assam and the
other States. Article 214 contains that there shall be a High Court for each
State. However, significantly, Article 231 was inserted in the Constitution by
the Constitution (Seventh Amendment) Act, 1956 and it contained that notwithstanding anything contained in the
preceding provisions of Chapter V, Parliament may by law establish a common
High Court for two or more States or for two or more States and a Union
territory. Still further, what is of significance is that Article 227 is the
recognition of the power of superintendence of every High Court over all courts
and tribunals throughout the territories in relation to which it exercises
jurisdiction. Thus, control over all District Courts and courts subordinate
thereto, in terms of Article 235, vests in the High Court. Again, Article 228
empowers the High Court that a case pending in a court subordinate to it if involves
a substantial question of law as to the interpretation of the Constitution and
the determination of which is necessary for the disposal of the case, to
withdraw the case and (a) either dispose of the case itself, or (b) determine
the said question of law and return the case to the court from which the case
has been so withdrawn together with a copy of its judgment on such question,
whereupon the said court shall proceed to dispose of the case in conformity
with such judgment.
The Supreme Court has held in Shahnewaz (supra) that
“We
reiterate, section 25 would essentially have to be read as barring transfer of
any suit, appeal or other proceeding from a Civil Court in one State to a Civil
Court in another State if such States have their own High Courts but not in the
case of a common High Court like the Gauhati High Court”.
In para 44 of Shahnewaz (Supra) the Supreme Court
has held as under:
“44….the power vested in the
Gauhati High Court by the Constitution as well as the CPC cannot be abrogated.
Thus, exercise of the power that section 24(1)(b)(i) confers on the Gauhati
High Court in a given case, would ultimately entail a transfer of the civil
suit from the State of Nagaland to the High Court, having its principal seat at
Gauhati in the State of Assam. Such a situation is not and cannot be controlled
by section 25, and on a harmonious reading of sections 24 and 25, it has to be
held that section 25 does not in all cases fetter the power of a common High
Court to order inter state transfer of a suit, appeal or other proceeding.
Otherwise, it would be a fallacy to believe that while an inter-State transfer
would be permissible in terms of sub-clause (i) but not sub-clause (ii) of
clause (b) of sub-section (1) of section 24. We reiterate, section 25 would
essentially have to be read as barring transfer of any suit, appeal or other
proceeding from a Civil Court in one State to a Civil Court in another State if
such States have their own High Courts but not in the case of a common High
Court like the Gauhati High Court.”
The Supreme Court in para 48 has thus concluded:
“In
view of the aforesaid discussions, the issue is answered by concluding that: (1)
a true and proper interpretation of section 25 of the CPC leads us to the
conclusion that the same applies to inter-State transfer of a suit, appeal or
other proceeding where both States have a High Court in terms of Article 214 of
the Constitution and not to a transfer where both States have a common High
Court under Article 231 thereof; and (2) the power under section 24 of the CPC
can be exercised by the High Court even for inter-State transfer of a suit,
appeal or other proceeding, if it is the common High Court for two or more
States under Article 231 of the Constitution and both the Civil Courts
(transferor and transferee) are subordinate to it”.
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Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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