The relief sought in a 'Transfer Petition' is essentially transfer of case
either from one subordinate court to another subordinate court within a
particular state or from one state to another, i.e., interstate transfer.
Sections under Civil Procedure Code, 1908 (hereinafter referred to as the
Section 22 allows the defendant to make an application for transfer of a suit,
whereas Section 23 indicates the court to which such an application for transfer
can be made. Section 24 embodies general power of transfer of any suit, appeal,
or other proceeding at any stage either on an application of any party or by a
court of its own motion. Section 25 confers very wide, plenary, and extensive
powers on the Supreme Court to transfer any suit, appeal, or other proceeding
from one High Court to another High Court or from one civil court in one state
to another civil court in another state.
Transfer under Civil Procedure Code
Scope of Transfer under the Code
It is pertinent to note that the adjudicating court to which a transfer
application / petition is made, must be 'competent' which essentially means that
the court should possess the requisite territorial jurisdiction.
Prior to enactment of 1977 Amendment, there was ambiguity due to the lack of
specific provisions dealing with the High Court's jurisdiction over interstate
transfer. As a result, a Legal Commission was established to submit proposals
and suggest changes to Parliament as necessary. Subsequently, as per the
Judiciary Committee's 150th report, the amendments were carried out, introducing
Section 25 in the Code to confer powers of interstate transfers on the Supreme
Court, needless to mention, subject to satisfaction of the court on merits.
Object and reasons
Due to the ambiguity in the Code, various High Courts of the country had ruled
differently while adjudicating interstate transfer petitions. The amended
Section 25 was to clarify whether the High Court has the power to authorize
interstate transfer civil cases.
Prior to the 1977 amendment, the High Court interpreted the Code according to
the facts and circumstances each case while adjudicating transfer petitions.
Some High Courts held that since Section 24 is comprehensive in nature the High
Courts have the power to exercise jurisdiction to allow interstate transfer,
whereas certain High Courts have taken a contrary stand.
1977 to 2008
Though post the 1977 amendment to the code, conferring powers on Supreme Court
to transfer any suit, appeal, or proceedings from one state to another, yet the
High Courts continued to assume power and exercise jurisdiction allowing the
transfer of suit, appeal, or proceedings from a subordinate court in its
territorial jurisdiction to a subordinate court in other state under Article 226
and 227 of the Indian Constitution.
Case laws prior to 2008 chronologically
The Bombay High Court in Priyavari Mehta v. Priyanathi Mehta
was of the view that although the 1977 amendment introduced Section 25 thereby
conferring the Supreme Court with the power to permit interstate transfer it did
not repeal Section 23(3) of the Code. Section 23 of the Code enables a defendant
to apply for transfer of a suit.
The Supreme Court in Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry
(1981), held that mere introduction of Section 25 does not make Section 23(3)
of the Code redundant.
The Andhra Pradesh High Court in Mamta Gupta v. Mukund Kumar
the petitioner wife filed a transfer petition, seeking for transfer of the
dispute from Hyderabad to Indore. The Andhra Pradesh High Court held that even
though Section 25 confers powers on Supreme Court to transfer cases from one
state to another, powers of the High Court conferred by the legislature under
Sec 21A (3) of the Hindu Marriage Act, to transfer such cases are not seized
nor have been declared as ineffective post the introduction of Section 25 to the
code by the 1977 amendment. Therefore, the High Court allowed the transfer of
case from Hyderabad to Indore.
The Supreme Court in the case of Durgesh Sharma v. Jayshree
held that the power of the High Court did not possess the powers / jurisdiction
to entertain/ allow interstate transfers.
Analysis of the Durgesh Sharma Judgement
Facts in brief:
The wife had filed an appeal to transfer the proceedings instituted by the
husband at Ujjain, Madhya Pradesh to Nashik, Maharashtra, which was allowed by
the Madhya Pradesh High Court, which was under challenge before the Hon'ble Apex
- Whether the High Court has the power, authority and jurisdiction to
transfer a pending suit, appeal, other proceedings from one court
subordinate to it to another court subordinate to another High Court.
The Supreme Court thus held that S23 of Code is merely procedural in nature and
not substantive, i.e., it provides for the mode, method, manner, in approaching
the court for making an application. Furthermore, it does not empower the High
Court to allow/entertain interstate transfers, and that that the High Court
holds no power, authority, jurisdiction, to transfer a case, appeal or other
proceeding pending in a court subordinate to it to a subordinate court in
another High Court under S23(3) of The Code, and it is only this court (Supreme
Court) that has the power to exercise such intra-state transfer of cases.
Views and conclusions:
Transferring a civil case from one state to another, especially a civil
matrimonial dispute is sensitive in nature. Any such transfer must be
entertained with the utmost accuracy and after considering all the facts and
circumstances of the case. Therefore, we believe that the power to approve
interstate transfers need only be conferred upon the Apex Court only as the High
Courts lack the territorial jurisdiction to entertain transfer petitions praying
for interstate transfers as rightly held in the Durgesh Sharma judgment.
- Justice CK Thakker (Takwani), Mrs MC Thakkar, Civil Procedure 702,
(Eastern Book Company, Lucknow, 2007
- 1979 SCC OnLine Bom 140
- (1981) 2 SCC 646
- 2000 (2) A.P.L.J. 435 (HC)
- Section 21A - Power to transfer petitions in certain cases
- 2008 SCC OnLine SC 1464
- Adv Tanmay Karmarkar, Bombay High Court
- Falgu Mukati (Final Year Law Student at Mumbai University)
Transfer of Petition in India
Transfer Petition in Supreme Court of India-All about
Withdrawal and Transfer of Suits
Award Winning Article Is Written By: Ms.Falgu Mukati
Authentication No: SP42356754160-28-0922
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