CAUSE TITLE:
Shah Newaz Khan & Ors. v. State of Nagaland & Ors.
DATE OF ORDER:
28 February 2023
JUDGE(S):
Hon’ble Justice Hrishikesh Roy and Hon’ble Justice Dipankar Datta
PARTIES:
Appellant: Shah Newaz Khan & Ors.
Respondent: State of Nagaland & Ors.
SUBJECT:
The Hon’ble Supreme Court (hereinafter referred to as ‘the Court’), dealt with the issue whether a High Court of two or more states has the power to order for transfer of suits from one civil court to another, both of which are subordinate to the said High Court but are located in different states.
The Ld. Court while dismissing the transfer petition in the present case, held that a High Court derives authority from Section 24 of CPC for inter state transfer of suits.
IMPORTANT PROVISIONS:
Code of Civil Procedure, 1908
- Section 3 - Subordination of Courts - For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.
- Section 22 - Power to transfer suits which may be instituted in more than one court - Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, 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, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.
- Section 23 - To what court application lies -
- Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.
- Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.
- 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 suit is brought is situated.
- Section 24 - General power of transfer and withdrawal - On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, 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 for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
- withdraw any suit, appeal or other proceeding pending in any Court subordinate to it.
- Section 25 - Power of Supreme Court to transfer suits, etc - 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 another State.
- Every application under this section shall be made by a motion which shall be supported by an affidavit.
BRIEF FACTS:
- In 2007, the appellants instituted a suit in the court of the District Judge at Dimapur, Nagaland for declaration of right, title and interest along with a permanent injunction and damages which was dismissed due to certain hostile circumstances created by the private defendants.
- Consequently, the appellants filed an application u/s 24 CPC before the Gauhati High Court pleading that it is impossible for them to continue with prosecution of the suit at Dimapur. The application was filed to seek for transfer of the suit to the court of the District Judge at Guwahati, Assam from the court of District Judge at Dimapur, Nagaland. This application was rejected by a Single Judge Bench of the Guahati High Court.
- Accordingly, the appellants approached the Apex Court under Section 25 CPC seeking the same relief.
QUESTIONS RAISED:
- Is the Supreme Court the sole repository of power in terms of section 25 of the Code of Civil Procedure (CPC) to direct transfer of a suit, appeal or other proceeding from a Civil Court in one State to a Civil Court in another State?
- 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 u/s 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 situate in different States in relation to which it exercises jurisdiction, for consideration and decision?
ARGUMENTS ADVANCED BY THE APPELLANT:
- The Counsel for the appellants contended that Section 24 of CPC provides for the power of the High Court and the District Courts to direct transfer of proceedings. The facts of the present case satisfy all the ingredients provided under section 24 CPC.
- It was further contended by the counsel for the appellants a bare perusal of Section 24 CPC would suggest, inter alia, that the High Court may, at any stage, direct for the transfer of suits pending before it to any court subordinate to it.
- In the context of the present case, it is evident that u/s 24 of CPC, the Guahati High Court which is a common High Court for the states of Assam, Nagaland, Mizoram and Arunachal Pradesh is empowered to direct inter-State transfer of proceedings between the the District Judge at Guwahati, Assam and the District Judge at Dimapur, Nagaland.
ARGUMENTS ADVANCED BY THE RESPONDENTS:
- The Counsel for the respondents contended that Section 25 has to be read along with Section 24 of CPC.
- It was further contended by the respondents that section 25 CPC clearly indicates that only the Supreme Court and not the High Courts have the power to transfer proceedings between inter state subordinate courts.
ANALYSIS BY THE COURT:
- The Ld. Court observed that the correct approach to construe section 24 and 25 of the CPC has to be fair, pragmatic, reasonable and realistic. Any interpretation or construction of these provisions which would impede “access to justice” and violation of the Fundamental Rights of any citizen has to be eschewed.
- It was further observed by the Court that it would put a huge burden on litigants from the four states that come within the jurisdiction of the Gauhati High Court to approach the Apex Court each time for an inter-state transfer of proceedings.
- It was also observed by the Apex Court that no matter how big or small, a High Court is a constitutional court nonetheless and is, therefore, empowered under sections 24 and 25 of CPC to direct transfer of proceedings between inter state courts subordinate to it.
CONCLUSION
It was held by the Ld. Court that Section 24 of CPC allows the Guahati High Court or any other High Court for that matter, to direct inter-state transfer of proceedings between courts subordinate to it.
