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T & W OF SUIT etc. under CPC, 1908

September 11, 2019

TRANSFER AND WITHDRAWAL OF SUIT, APPEALS & OTHER PROCEEDINGS

  • Sections 22 to 25 of the Code of Civil Procedure, 1908 (CPC) deal with the transfers and withdrawal of suits/appeals from one court to another.
  • Sections 22 & 23 enable a defendant to apply for transfer of a suit while Sections 24 & 25 empower certain courts to transfer any suit, appeal or other proceeding either on an application made by any party or by the court suo motu.

Who may apply for transfer—

  • Section 22 deals with the right of a defendant to apply for the transfer of a suit. It provides that where the plaintiff has the choice of two or more courts and institutes the suit in one of such courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity, apply to the court for transfer of suit to another Court.
  • Conditions—
  • Where issues are settled, at or before the settlement of issues, and
  • Notice must be given to the other side.

Section 23—To what Court application for transfer of suit lies?—

Such application shall lie to the following courts—

  • 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.
  • 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.
  • Where such Courts are subordinate to different High Courts, the application shall be made the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.
  • The Hon’ble Supreme Court has inherent power and may transfer any suit, appeal, or other proceedings from one High Court to another, or from one civil court in a State to another civil court in other State (Section 25)

Section 24—General power of transfer and withdrawal?[1]—

  • Section 24 provides that the High Court or District Court may transfer or withdraw any suit/ appeal or other proceedings at any stage for disposal of the suit.
  • Such transfer may be made on the application of the parties and after notice to the parties.
  • The court may also transfer/ withdraw the suit/ appeal etc. on its own motion without notice to the parties.(MPJ-2002)
  • “Proceeding” includes a proceeding for the execution of a decree or order.
  • It is to be noted that a suit or proceeding may be transferred under section 24 from a Court which has no jurisdiction to try it.

Section 25—Power of Supreme Court to transfer suits, etc.

  • Section 25 confers power upon the Supreme Court to transfer suits/ appeal or other proceedings. Such transfer may be made from one High Court/Civil Court to another High Court/ Civil Court for the end of justice.
  • Such transfer may be made on the application of the parties and after notice to the parties. The Supreme Court under Section 25 can not transfer the suit on its own motion, unlike Section 24.
  • Every application under this section shall be made by a motion which shall be supported by an affidavit.
  • However, if the application for transfer of suit is dismissed by the Supreme Court on the ground of frivolous or vexatious nature, the Court may order for compensation upto 2,000/-.

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[1].What are the general powers conferred on the High Court or the District Court as regards the transfer and withdrawal of suits, appeals or other proceedings? (RJS-1999). Can a party apply for the transfer of a suit or appeal? If so, describe the procedure adopted in the matter?(RJS-1999)

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