Section 24: General power of transfer and withdrawal

 

Code of Civil Procedure Section 23. To what Court application lies.

 

24. General power of transfer and withdrawal.—(1) 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—

(a) 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

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and—

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which ¹[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

²[(3) For the purposes of this section,—

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) “proceeding” includes a proceeding for the execution of a decree or order.]

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

³[(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]

Note 1: Subs. by Act 104 of 1976, s. 10, for “thereafter tries such suit” (w.e.f. 1-2-1977).

Note 2: Subs. by s. 10, ibid., for sub-section (3) (w.e.f. 1-2-1977).

Note 3: Ins. by s. 10, ibid, (w.e.f. 1-2-1977).

 

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 25. Power of Supreme Court to transfer suits, etc.

Simplified Explanation:

Section 24 provides for power for transfer of a case from one court to another. It provides for transfer of suit, appeal or other proceedings. Other proceedings include the execution proceedings.

Judgments:

Transfer of the proceedings by the High Court before itself on the ground that a party is abusing the process of the Court or otherwise resorting to the process that other party may not succeed, stands fully fortified by the judgment of the Hon’ble Supreme Court in Abdul Rahman V. Prasony Bai & Anr., AIR 2003 SC 718.

In Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646, the apex court held: “Only civil suits are subject matter of inter State transfer from one civil court to another civil court. Sub-section (5) of section 24 of CPC provides that a suit or proceeding may be transferred from a Court which has no jurisdiction to try it. The power to transfer one case from one court to another or from one tribunal to another is to be exercised if exceptional situation arises and not otherwise. Rules of procedures are intended to provide justice and not to defeat it.”

Reference: 

1) http://www.nja.nic.in/16%20CPC.pdf

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To what Court application lies

 

Code of Civil Procedure Section

 

23. To what Court application lies.—(I) 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.

(2) 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.

(3) 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 situate.

 

 

Code of Civil Procedure Section

Power to transfer suits which may be instituted in more than one Court

 

Code of Civil Procedure 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.

 

Code of Civil Procedure Section

Bar on suit to set aside decree on objection as to place of suing

 

Code of Civil Procedure Section

 

¹[21A. Bar on suit to set aside decree on objection as to place of suing.— No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing.

Explanation.—The expression “former suit” means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned.]

Note 1: Ins by s. 9, ibid. (w.e.f. 1-2-1977).

 

 

Code of Civil Procedure Section

 

Section 21: Objections to jurisdiction

Code of Civil Procedure 

21. Objections to jurisdiction. —¹[(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

²[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]

Note 1: S. 21 renumbered as sub-section (1) by Act 104 of 1976, s. 8 (w.e.f. 1-2-1977).

Note 2: Ins. by s. 8, ibid. (w.e.f. 1-2-1977).

Code of Civil Procedure 

Jurisdiction of courts and venue of suits

Jurisdiction means the authority by which a court has to decide matters that are brought before it for adjudication. The limit of this authority is imposed by charter, statute or commission. If no such limit is imposed or defined that the jurisdiction is said to be unlimited.

Limitation of jurisdiction of civil court is basically four kinds:

[1] Jurisdiction over the subject matter- to try certain matters by certain court is limited by statute (Ex. Small cause court- suit for money due under promissory note or a suit for price of work done)

[2] Place of suing or territorial jurisdiction – A territorial limit of jurisdiction for each court is fixed by Government.

[3] Jurisdiction over persons – All person of whatever nationality are subject to the jurisdiction of the country except foreign state.

[4] Pecuniary jurisdiction depending on pecuniary value of suit –There is no pecuniary jurisdiction of high court and district court.

Jurisdiction may be further classified: [a] Original jurisdiction [b] Appellate jurisdiction

Criminal and appellate jurisdiction- Supreme Court, High Courts and District courts have both original and appellate jurisdiction in various matter.

Section 20: Other suits to be instituted where defendants reside or cause of action arises

 

Code of Civil Procedure Section 19. Suits for compensation for wrongs to person or movables.

 

20. Other suits to be instituted where defendants reside or cause of action arises.—Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction—

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or

(c) The cause of action, wholly or in part, arises.

¹* * * * *

²[Explanation].—A corporation shall be deemed to carry on business at its sole or principal office in ³[India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Illustrations

(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on business.

(b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Benaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.

Note 1: Explanation 1 omitted by Act 104 of 1976, s. 7 (w.e.f. 1-2-1977).

Note 2: Subs. by s. 7, ibid., for “Explanation II” (w.e.f. 1-2-1977).

Note 3: Subs. by Act 2 of 1951, s. 3 for “the States”.

Part in Red is original provisions from CPC reproduced here for reference.

 

Code of Civil Procedure Section 21. Objections to jurisdiction.

Simplified Explanation: 

Section 20 provides for institution of the suits not covered by earlier provisions where defendants reside or cause of action arises.

Cause of Action:

A “cause of action” is a bundle of facts which, taken with the law applicable, gives the plaintiff a right to relief against the defendant. However, it must include some act done by the defendant, since in the absence of an act, no cause of action can possibly occurred. 

In the case of a cheque where it is drawn on a bank at place ‘A’ but the creditor hands it over to its banker at place ‘B’ for collection, the Court at place ‘A’ has jurisdiction as payment, which is part of cause of action, takes place at place ‘A’.

Therefore, for determining a “cause of action”, it must be determined what the place is where the right is created even though infringement of the right might have taken place at some other place. 

An assignment constitutes the cause of action and is sufficient to give jurisdiction to the Court. Another different view has also been taken to the extent that an assignment/ endorsement, which merely authorises the endorsee to take delivery of the goods, will not create jurisdiction.

Where an endorsement was made on back of promissory note in favour of plaintiff, endorsement was only to recover interest and not the whole amount. It was made unilaterally without the consent of the party. As it was not found to be bona fide and made to defeat provisions of Section 20(c), therefore, it could not confer jurisdiction on Court within whose jurisdiction interest was directed to be paid. 

The fact must have direct relevance in the lis involved. It is not that every fact be treated as a cause of action in part and may create a jurisdiction of the court, in whose territorial jurisdiction it has occurred. The condition precedent for creation of jurisdiction is that the facts occurred therein must form an integral part of the cause of action. A mere allegation by a plaintiff for the purpose of creating a jurisdiction should not be enforced for conferring jurisdiction. More so, a fact, which does not have any direct relevance with the lis but is made to occur only to defeat to statutory provisions of Section 20 (c) of the Code in order to deprive the court which must have territorial jurisdiction over the subject matter of the suit, should not be accepted for the reason that the act has knowingly or purposely been performed to harass the defendant and deprive the court of territorial jurisdiction over the subject matter and to try the suit.

The Court is bound to determine exclusively jurisdictional issue before granting relief.

 

Reference:

1) http://www.nja.nic.in/16%20CPC.pdf

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Section 19: Suits for compensation for wrongs to person or movables

Code of Civil Procedure Section 18. Place of institution of suit where local limits of jurisdiction of Courts are uncertain.

19. Suits for compensation for wrongs to person or movables.—Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.

(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi.

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 20. Other suits to be instituted where defendants reside or cause of action arises.

==========

Simplified Explanation:

Section 19 provides for institution of suits for compensation for wrongs to person or movable property.

Judgments:

(a) In State of Assam & Ors. v. Dr. Brojen Gogoi & Ors., AIR 1998 SC 143, the Supreme Court examined a case wherein the Bombay High Court had granted anticipatory bail to a person who was allegedly connected with the offence, for all practical purposes, in a place within the territorial jurisdiction of Gauhati High Court and all such activities had perpetuated therein. The Apex Court transferred the case from Bombay High Court to Gauhati High Court to be heard further.

(b) In C.B.I., Anti-corruption Branch v. Narayan Diwakar, AIR 1999 SC 2362, the Apex Court considered a case where the respondent was the Incharge /Collector in Daman within the territorial jurisdiction of Bombay High Court and an FIR had been lodged against him in Daman for hatching conspiracy. He stood transferred to Arunachal Pradesh within the territorial jurisdiction of Gauhati High Court. The CBI gave him a wireless message from Bombay advising him to appear before its officers, in respect of investigation of the said case, in Bombay. The respondent filed a writ petition under Article 226 of the Constitution before the Gauhati High Court. The Supreme Court did not decide the case on merit but observed as under:-

“Suffice it to say that on the facts and circumstances of the case and the material on record, we have no hesitation to hold that the Gauhati High Court was clearly in error in deciding the question of jurisdiction in favour of the respondent. In our considered view, the writ petition filed by the respondent in the Gauhati High Court was not maintainable.”

The entire argument in the case had been that the Gauhati High Court had no jurisdiction to entertain the writ petition as no cause of action had arisen, even partly, within its territorial jurisdiction and receiving the message in Arunachal Pradesh to appear before the CBI Authority at Bombay did not give rise to the cause of action, even partly.

Reference:

1) http://www.nja.nic.in/16%20CPC.pdf

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