KULWINDER KAUR @ KULWINDER GURCHARAN SINGH v. KANDI FRIENDS EDUCATION TRUST AND ORS

Citation: [2008] 1 S.C.R. 556

Court: Supreme Court of India

Bench: C.K. THAKKER, MARKANDEY KATJU

Case summary

KULWINDER KAUR @ KULWINDER GURCHARAN SINGH v. KANDI FRIENDS EDUCATION TRUST AND ORS.pdf

Judgment text

[2008] 1 S. C. R. 556 KULWINDER KAUR @ KULWINDER GURCHARAN SINGH v. KANDI FRIENDS EDUCATION TRUST AND ORS. (C. A. No. 338 of 2008) JANUARY 11, 2008 [C. K. THAKKER AND MARKANDEY KATJU, JJ. ] Code of Civil Procedure, 1908 - s. 24 - Transfer of cases c - Power of court - Scope of- High Court transferring civil suit from the court of Civil Judge, Ropar to the court of Additional Civil Judge, Chandigarh - Challenge to - Held: High Court did not record any reason/ground for transferring the suit - Also it did not consider the a/legations and counter-allegations - Moreso, the delay was a. ttributable to plaintiff in the suit - Power u/s 24 cannot be exercised ipse dixit in the manner in which it was done - High Court should have applied its mind to these aspects and prima fade satisfied as to the grounds .. which weighed in taking such action - Thus, order ofHigh Court set aside and matter remitted back.

The question which arose for consideration in this appeal was whether in the facts and circumstances of the case, the High Court was justified in transferring civil suit from the Court of Civil Judge, Ropar to the Court of Additional Civil Judge, Chandigarh, by naming the Judge. Allowing the appeal and remitting the matter, the Court HELD: 1. 1 Section 24 of the Code of Civil Procedure, 1908 empowers a High Court or a District Court to transfer inter alia any suit, appeal or other proceeding pending before it or in any Court subordinate to it to any other Court for trial and disposal. The said provision confers comprehensive power on the Court to transfer suits, - , I KANDI FRIENDS ED. TRUST & ORS. appeals or other proceedings 'at any stage' either oh an application by any party or suo motu. [Para 13] 1.

2 Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket or any cast-iron formula unanimously applicable to all situations, 8 it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial . having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that ~ he might not get justice in the court in which the suit is . ,. .

pending; important questions of law involved or considerable section of public interested in the litigation; 'interest of justice' demanding for transfer of suit, appeal or other proceeding, etc. These are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. However, they are illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant i considerations, the Court feels that the plaintiff or the .. ; defendant is not likely to have a 'fair trial' in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order. [Para 14] [564-C, D, E, F, G] Maneka Sanjay Gandhi v. Rani Jethmalani, 1979 (2) SCR 378; Subramaniam Swamy v Ramakrishna Hegde, 1990 (1) sec 417 - relied on. 2.

1 In the instant case, the High Court without stating anything whatsoever as to allegations and counter- allegations, without considering the reply submitted by the appellant and without recording any reason/ground passed the impugned order transferring the case. The contesting respondent no doubt submitted that the Court did not: observe anything since observations by a High Court one way or the other might prejudice one of the parties to the suit. It is true that normally while making an order of transfer, the Court may not enter into merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side. However, at the same time, an order of transfer must reflect application of mind by the Court and the circumstances which weighed in taking the action. [Para 17] [566-F, G; 567-A, B] 2.

2 The plaintiff alleged that though more than three years had passed from instituting the suit, it was not disposed of and delay had been caused by the defendants as they were in office and they wanted to prolong the . . proceedings so that they may take undue benefit of their status. The defendants in the reply filed by them contended that delay had not been caused by them, but it was the plaintiff who was responsible for not proceeding with the suit and was to be blamed for creation of such situation. In support of the contention, Zimni proceedings were relied upon. It was also urged that the plaintiff-side could not get favourable order on applications under Order XXXIX, Rules 1 and 2 of the Code and, hence, it wanted to get the case transferred.

In view of the assertion and retraction by the plaintiff and the defendants, the High Court ought to have applied its mind to those aspects and prima facie satisfied as to the grounds put forward by the plaintiff in the transfer application and ought to have passed an order one way or the other without entering into the controversy in the suit. Unfortunately, the High Court allowed the application observing that it would be 'appropriate' to transfer the suit pending in the Court of Smt. Asha Konal, Civil Judge, Ropar to the Court of Sh. Y. -"". S. Rathore, Additional Civil Judge, (Sr. Divn) Chandigarh. Thus, powers under section 24 of the Code cannot be exercised ipse dixit in the manner in which it has been done. [Para 17] [567-B~ C, D, E, F, G] CIVILAPPELLATE JURISDICTION: Civil Appeal No. 338 of 2008. From the final Judgment and Order dated 17. 11. 2006 of -f the High Court of Punjab and Haryaila at Chandigarh in C. M. No. 22108-Cll of2006. Puneet Bali, Hittan Nehra and S. S.

Jauhar for the Appellant. Sridhar, Rishi Malhotra, R. Singh and Prem Malhotra for the Respondents. The Judgment of the Court was delivered by C. K. THAKKER, J. 1. Leave granted. -- -- 13. Having considered rival contentions of the parties and having gone through the proceedings of the case, we are of the view that the impugned order deserves to be set aside. So far as the power of transfer is concerned, Section 24 of the Code empowers a High Court or a District Court to transfer inter a/ia any suit, appeal or other proceeding pending before it or in any Court subordinate to it to any other Court for trial and disposal. The said provision confers comprehensive power on the Court fto transfer suits, appeals or other proceedings 'at any stage' either on an application by any party or suo motu. 14.

Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what ). _ may constitute a ground for transfer have been laid down by Courts.

They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a t considerable section of public interested in the litigation; 'interest ~ of justice' demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive.

If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a 'fair trial' in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order. ...... 15. In Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) . A 2 SCR 378, this Court stated; "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 8 not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini .. grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous ifthe 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". (emphasis supplied) :'i 16.

Similarly in Subramaniam Swamy v. Ramakrishna Hegde, (1990) 1 SCC 4, dealing with power of this Court to A, transfer a case under Section 25 of the Code, A. M. Ahmadi, J. " (as His Lordship then was) ~tated; "Under the old section the State Government was empowered to transfer a suit, appeal or other proceeding pending in the High Court of that State to any other High Court on receipt of a report from the Judge trying or hearing the suit that there existed reasonable grounds for such transfer provided the State Government of the .... State in which the other High Court had its principal seat .... consented to the transfer. The present Section 25 confers the power of transfer on the Supreme Court . and is of wide amplitude.

Under the present provision the Supreme Court is empowered at any stage to transfer any suit, appeal or other proceeding from a High Court or other Civil Court in one State to a High Court or other Civil Court of another State if it is satisfied that such an order is expedient for the ends ofjustice. The cardinal principle for the exercise of power under this section is that the ends ofjustice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends ofjustice. It is true that if more than one court has jurisdiction under the Code to try the s suit, the plaintiff as dominus fitis has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular court convenient to him.

The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial ofjustice. Cases are not unknown where a party seeking ;ustice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. The Parliament has therefore, invested this Court with the discretion to transfer the case from one Court to another if that is considered expedient to meet the ends ofjustice. Words ofwide amplitude-for the ends ofjusticehave been advisedly used to leave the matter to the discretion of the apex court as it is not possible to conceive of all situations requiring or justifying the exercise ofpower.

But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner's plea for the transfer of the case must be tested on this touchstone". (emphasis supplied) 17. In the case on hand, the High Court without stating anything whatsoever as to allegations and counter-allegations, without considering the reply submitted by the appellant herein and without recording any reason/ground passed the impugned order transferring the case. The learned counsel for the contesting respondent no doubt submitted that the Court has not observed anything since observations by a High Court one way or the other might prejudice one of the parties to the suit. It .

~ is true that normally While making an order of transfer, the Court may not enter into merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side. At the same time, however, an order of transfer must ... reflect application of mind by the Court and the circumstances which weighed in taking the action. In the instant case, it was alleged by the plaintiff that though more than three years had ~ passed from instituting the suit, it was not disposed of and delay had been caused by the defendants as they were in office and they wanted to prolong the proceedings so that they may take undue benefit of their status. The defendants, in the reply filed by them, contended that delay had not been caused by them, . but it was the plaintiff who was responsible for not proceeding with the suit and was to be blamed for creation of such situation. In support of the contention, Zimni proceedings were relied upon.

It was also urged that the plaintiff-side could not get favourable order on applications under Order XXXIX, Rules 1 ~ and 2 of the Code and, hence, it wanted to get the case ... transferred. In view of the assertion and retraction by the plaintiff and the defendants, in our considered opinion, the High Court ought to have applied its mind to those aspects and prima facie satisfied as to the grounds put forward by the plaintiff in the transfer application and ought to have passed an order one way or the other without entering into the controversy in the suit. Unfortunately, the High Court allowed the application observing ~ that it would be 'appropriate' to transfer the suit pending in the .... Court of Smt. Asha Konal, Civil Judge, (Sr. Divn. ), Ropar to the Court of Sh. Y. S. Rathore, Additional Civil Judge (Sr. Divn. ), Chandigarh. In our opinion, powers under Section 24 of the Code cannot be exercised ipse dixit in the manner in which it has been done.

Only on that ground and without entering into larger issue, the appeal deserves to be allowed and is accordingly, .... allowed. 18. For the foregoing reasons, the appeal is allowed. The order passed by the High Court is set aside and the matter is A remitted to the High Court for fresh disposal in accordance with law after hearing the parties. On the facts and in circumstances of the case, however, there shall be no order as to costs. 19. Before parting with the matter, we make it clear that we have not entered into correctness or otherwise of what is 8 stated by the plaintiff or by the defendants and we may not be understood to have expressed any opinion on allegations and counter-allegations. As and when the matter will be placed before the High Court, the Court will take an appropriate decision on its own merits without being inhibited or influenced by the observations made by us in this judgment. ,,. N. J. Appeal allowed.