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Transfer of Petition in India

Section 25 of the CPC enables the Supreme Court to transfer any Case, appeal or other proceedings from High Court or other civil court in one State to a High Court or other civil court in any other State
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Laws Governing Transfer of Petition

An Application for transfer of Suit under Section 25 of the Code of Civil Procedure

Section 25 of the Code of Civil Procedure enables the Supreme Court to transfer any Case, appeal or other proceedings from High Court or other civil court in one State to a High Court or other civil court in any other State. This power may be exercised by the Supreme Court if it is satisfied that an order under this Section is expedient for the ends of justice. Hence wide powers are given to the Supreme Court to order a transfer if it  feels that the ends of justice so require.

In Dr. Subramaniam Swamy v. Ramakrishna Hegde, the Court held that:
The paramount consideration for transfer of a case under Section 25 of Code of Civil Procedure must be the requirement of justice. It was held that the mere convenience of the parties or anyone of them may not be enough for the exercise of power, but it should even be shown that trial within the chosen forum can lead to denial of justice. The Court further held that if the ends . of justice so demand and the transfer of the case is imperative, there should be no hesitation to transfer the case. The right of the dominus litis to choose the forum and consideration of plaintiff s convenience etc. cannot eclipse the requirement of justice. Justice must be done at all costs; if necessary by the transfer of the case from" one court to another.

This provision has been most often invoked in matrimonial matters, and usually at the instance of the wife. When the husband and wife are living separately and the husband files -a petition for divorce or institutes other proceedings under the law relating to marriage and divorce at the place where he is residing, which is usually the place where the parties last resided together, the wife, who has often returned to her parental home, moves for transfer either on the ground that she cannot afford to travel or that she cannot leave her child behind or that she faces threats when she goes to defend the proceedings. The Court invariably takes a sympathetic view towards the wife's plea for transfer, but this is net always the case.

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Case laws on Transfer of Petition

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Transfer of Petition

In Avtar Singh and Co. Pvt. Ltd. v. S.S. Enterprises, a petition was filed, under Section 25 CPC for transfer of the suit from the Calcutta High Court to the District Court at Kanpur where a suit was already pending. The Court directed the Calcutta suit to be transferred to Kanpur taking into account of fact that Kanpur suit was filed earlier in point of time, and that the suit was filed in Calcutta was in the nature of a cross-suit.

B. Application For Transfer Under Section 406 Of The Code Of Criminal Procedure
Section 406 of the Code of Criminal Procedure gives power to the Supreme Court to transfer criminal cases and appeals pending in one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal Court of equal or superior jurisdiction subordinate to another High Court. The Supreme Court can act under the
section only on the application of the Attorney General or of a party interested. Where an application under Section 406 Of The Code of Criminal Procedure is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious order the applicant to pay by way of compensation to the respondent such sum not exceeding Rs 1000.

In Maneka Sanjay Gandhi v. Miss Rani Jethmalani, the Supreme Court pointed out as to when the Court can exercise the power of transfer. Justice Krishna Iyer observed as follows:
"Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mine-grievances. Something more substantial more compelling, more imperiling from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer; This is the cardinal principle although the circumstances may be myriad and vary from case to case.


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Supreme Court Judgments on Transfer of Petition

A few recent cases under Section 406 CrPC may be noticed-
In Abiram Veer v. North Eastern Regional Agricultural Marketing Corporation Ltd, the Supreme Court declined transfer of 10 cases under Section 138 of the Negotiable Instruments Act pending before Courts at Gauhati. The court did not find sufficient reason to order transfer, merely because it was alleged that the cause of action arose at Lucknow and that therefore the Court at Lucknow could exercise jurisdiction. The Court held y that the question of jurisdiction would have to be raised before the Court where the case is pending. The Court did not find the petitioner's plea that the situation at Gauhati posed a danger to his life, as sufficient ground for ordering transfer, as the same would apply to the other side also. The Court, however, left it open to the petitioner to apply for exemption from personal appearance in cases where he made the first appearance and directed that if such an application was made, the Magistrate concerned would exempt him from personal appearance on the following conditions:-
1) The counsel on his behalf would be present in the court on all days when the cases are taken up.
2) The petitioner will not dispute his identity.
3) The petitioner would be present in court when his presence is imperatively needed, such as, the examination under Section 313 of the Criminal Procedure Code.

But in Neelam Kanwar Vs Devinder Singh Kanwar, the Court allowed the wife's petition for transfer of a complaint filed by the husband's father under Section 500 IPC from Chandigarh to Mumbai. The Court held that' even if it is assumed that the permanent place of the residence of the respondent was Chandigarh and not Mumbai, though, the petition described him as having a permanent residence at Mumbai, the fact was that the petitioner was a lady, and therefore as a matter of convenience, a transfer to the. place where the lady was residing would be preferred by the Court, unless it was shown that there were special reasons .not to do so.

In Ayyannar Agencies v.Sri Vishnu Cement Ltd, five complaints had been filed by the respondent under Section 138 of the Negotiable Instruments Act before the Court of the Metropolitan Magistrate at Chennai and thereafter one complaint was filed before the Metropolitan Magistrate at Hyderabad against the petitioners in respect of two cheques for the same offences under Section 138 of the Negotiable Instruments Act. Transfer was sought of the Hyderabad case to Chennai on the ground that parties in all cases were the same and the offence is of the same nature though pertaining to different cheques. The Court allowed the petition for transfer holding that the transfer prayed for could only be in the interests of justice and for the convenience of conducting the trial and disposal of all the cases.

However, in Abdul Madani v. State of Tamil Nadu, the Court disallowed the plea for transfer. The petitioners-prayed for transfer of the case pending against them in Tamil Nadu to Kerala alleging that the surcharged communal atmosphere in Tamil Nadu made the conduct of a fair trial impossible. The Court found as a matter of fact that a fair and speedy trial of the case was possible and the accused persons need not have any cause for apprehension. The court observed that the apprehension of not getting a fair and impartial trial is required to be reasonable and not imaginary. The Court observed that no universal or hard and fast rules can be prescribed for deciding the transfer petition, which always had to be decided on the basis of the facts of each case. The Court also observed that the convenience of the parties, including the witnesses to be produced at the trial was a relevant consideration, that convenience of the parties does not necessarily' mean the convenience of the petitioner alone and that convenience for the purpose of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interests of the, society.



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