15/12/2018 Transfer of suits from one civil court to another

 kumar 

Transfer of suits from one civil court to

another
lawyersclubindia.com Updated Dec 14th, 2018
 

Transfer of suits from one civil court

to another

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In civil procedure, the jurisdiction of civil court is at the root of any suit. It is the
primary criterion on the basis of which the civil court can adjudicate upon a
dispute. Any decree given by a court which is lacking jurisdiction in a nullity and
the same may be impeached at any stage.

Place of institution of suit

Civil Procedure Code, 1908 (the CPC) has not defined anywhere the jurisdiction
of Civil Courts. Rather, Section 15 specifies that “Every suit shall be instituted in
the Court of the lowest grade competent to try it”. It only specifies that amongst
the competent courts, the suit must be instituted at the court of the lowest
grade. In West Bengal, the jurisdiction of civil courts is given in the Bengal, Agra
and Assam Civil Courts Act, 1887 (refer to Chapter III and Chapter IV of the Act,
which specifies the pecuniary jurisdiction and Section 13 of the Act which
empowers the State Government to distribute territorial jurisdiction of the civil
courts).

Given this general principle of the CPC, there are some cases where multiple
civil courts may have jurisdiction to entertain and adjudicate upon suit. Section
16 and 19 confers jurisdiction to multiple courts based on the following criteria:

1. The place where the cause of action has arisen;

2. The place where the defendant resides, or carries on business or works for
gain.

3. Again, if there are multiple defendants having different place of residences, or

work places, then with the leave of Court, suit may be instituted at any of such
l
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15/12/2018 Transfer of suits from one civil court to another
places.

In such case, the choice is available to the plaintiff to file a suit as per his choice.

Transfer of suit

When a suit has been instituted by a plaintiff in one civil court of his choice,
there may be two choices available to the defendant: either to file his written
statement, ie accepting the jurisdiction of the court or to file application for
transfer of the suit.

Section 22 and 23 of CPC confers power of the civil court to transfer suits from
one civil court to another on the application of the defendant. Section 22 is the
substantive section which confers upon the civil court the power. Section 23
specifies the appropriate court for this purpose.

The power of the Court to transfer suit has the following distinguishing features:

1. This power is a limited power. It is applicable only in respect of the cases

where more than one court is competent to entertain the suit and the plaintiff
has filed the suit in one of such courts;

2. This power is not available when the plaintiff is suing on a contract which
contains “Forum Shopping Clause” – conferring the jurisdiction in respect of
adjudication of disputes arising out of the contract on a specified court. In this
type of suits, the issue is not whether one particular court has jurisdiction or not,
but rather the defendant could file the suit in the court in question , in view of
the contractual clause;

3. The application u/s 22 of the CPC can be filed only by the defendant. If
multiple defendants are there in the suit, then any one defendant can file
application under the section;

4. The application has to be filed within a specified period of time. Section 22

specifies that such application has to be filed at the earliest possible
opportunities and in all possible cases at or before settlement of issue. This
provision is very important and is strictly adhered to. The Court cannot relax
this by invoking his power u/s 151 of CPC;

5. Before filing transfer application, the defendant has to give notice to all the
other parties. This is a mandatory provision. Without complying with this no
transfer application is entertained.

6. All the parties to the suit (except the applicant) have the right to file
objections to the transfer application. Considering all the objections, the Court
shall determine the most appropriate Court to adjudicate upon the suit.

The transfer order is an exercise of administrative power of the Court. This is

based on the balance of convenience of the parties. As the matter has various
connotations, the Courts are very much circumspect on issuing such orders.
Mere apprehension or only flimsy reasons are not sufficient to have such an
order.

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15/12/2018 Transfer of suits from one civil court to another

Competent Court to issue transfer order

Because of importance on the justice delivery process, the power of transferring

any suit from one court to another is given to the higher courts in the judicial
hierarchy. Section 23 of the CPC makes a classification of cases based on the
transferor and transferee courts:

1. Where the suit is to be transferred from one civil court to another within the
same appellate court;

2. Where the suit is to be transferred from one civil court to another within
different appellate courts but within the same High Court;

3. Where the suit is to be transferred from one civil court to another with the
jurisdiction of different High Courts.

In the first type of case, the transfer application has to be filed to the appellate
court to which both the civil courts are sub-ordinate;

In the second type of case, the transfer application has to be filed to the High
Court under whose jurisdiction both the civil courts are sub-ordinate;

In the third type of case, the transfer application has to be filed to the High
Court in whose jurisdiction the transferor civil court is situated.

Conclusion

The power of appellate court to transfer suit from one civil court to another may
be utilized by the advocate of the defendant in a strategic manner. The whole
CPC is based on meticulous adherence to procedures. Practicing advocates
should bear in mind the strategic options before advising the clients in respect of
preferring transfer applications.  

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