Transfer of suits from one civil court to another

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 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.

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.