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In litigation, the plaintiff, acting as the arbiter litis or dominus litis, holds the prerogative to select the forum where a suit can be initiated if multiple courts have jurisdiction. Typically, this right of the plaintiff remains inviolable and cannot be restricted, controlled, or interfered with.
However, this right is subject to the authority vested in superior courts to transfer a case pending in one inferior court to another or to reclaim the case for its own hearing and disposition.
Sections 22 to 25 delineate the legal framework concerning the transfer and withdrawal of suits, appeals, and other proceedings from one court to another.
Sections 22 and 23 afford the defendant the opportunity to petition for the transfer of a suit, while Sections 24 and 25 authorise certain courts to transfer any suit, appeal, or other proceeding either upon application by any party or at the court's own initiative.
The overarching objective of every procedural law is to streamline the administration of justice. Central to this objective is ensuring a fair and impartial trial, which is indispensable for the dispensation of justice.
Achieving justice requires the court to treat both parties equally, impartially, and with even-handedness. While a plaintiff retains the right to select their preferred forum, in the interest of administering justice fairly and impartially, a court may transfer a case from one court to another.
Scope
Section 22 permits the defendant to seek a transfer of a lawsuit, while Section 23 specifies the appropriate court for such a request.
Section 24 encompasses the broad authority to transfer any legal action, appeal, or proceeding at any juncture, either upon application by a party or at the discretion of the court itself.
However, this authority does not extend to enabling a High Court to transfer any case, appeal, or proceeding from a subordinate court to a non-subordinate court.
Section 25 grants the Supreme Court expansive powers to transfer any lawsuit, appeal, or proceeding from one High Court to another or from a civil court in one state to another civil court in a different state.
The authority to transfer a case rests within the discretion of the court and must be exercised judiciously, akin to any other discretionary power. A transfer order should demonstrate a thoughtful consideration of the circumstances influencing the decision.
The power of transfer cannot be wielded arbitrarily. When considering a transfer application, the court should refrain from delving into the merits of the case, as doing so could prejudice the final outcome or the interests of either party (Kulwinder Kaur v Kandi Friends Education Trust AIR 2008 SC 1333).
The court may appropriately investigate the circumstances to determine if the plaintiff exercised their right to choose the forum in bad faith or for ulterior motives (Indian Overseas Bank v Chemical Construction Co.).
While it's true that an application for transfer can be submitted at any stage, the court may reject such a request if it appears to be an attempt to evade an adverse decision post-hearing.
It is advisable for the court to provide reasons supporting a transfer order. Failure to do so may lead to the superior court disapproving the order, citing a lack of proper consideration by the issuing court (Kulwinder Kaur v Kandi Friends Education Trust).
The exercise of the power to transfer must be approached with utmost care and consideration for the interests of justice. When deliberating on the matter, the court is confronted with two conflicting interests:
(i) the plaintiff's right to select their preferred forum, and
(ii) the court's obligation to ensure a fair trial and the administration of justice. The primary concern should be the pursuit of justice, and the court must be convinced that justice is more likely to be served by denying the plaintiff's choice of forum (Arvee Industries v Ratan Lal AIR 1977 SC 2429).
The burden of establishing sufficient grounds for transfer rests heavily on the applicant.
In the case of Maneka Sanjay Gandhi v Rani Jethmalani (AIR 1979 SC 468), Justice Krishna Iyer emphasised the paramount importance of ensuring a fair trial. He stated that the court should not be swayed by minor inconveniences or personal preferences but should focus on substantial factors crucial to public justice.
When transferring a case from one court to another or from one state to another, the court must not only consider the balance of convenience but also assess whether the trial expenses and difficulties would lead to injustice or if the suit was filed to cause injustice to the applicant.
Although the lack of territorial jurisdiction of the transferee court is a relevant factor, it does not conclusively impede the court's power to order a transfer
Who may apply?
Sections 22 and 23 of the Code address the entitlement of a defendant to request the transfer of a lawsuit. If the plaintiff can file a suit in two or more courts, the defendant, after notifying the opposing party, may promptly apply to transfer the suit to a different court.
Alternatively, in other scenarios, any party involved in the lawsuit, appeal, or other legal proceedings may file such an application.
To Which Court Application Lies?
The Code specifies the court to which an application for transfer can be directed as follows:
1. If multiple courts with jurisdiction fall under the same appellate court, the application for transfer can be directed to that appellate court.
2. If these courts are subordinate to the same High Court, the application can be made to that High Court.
3. In cases where the courts are subordinate to different High Courts, the application should be directed to the High Court within the local jurisdiction of the court where the suit is filed.
Additionally, the Supreme Court holds the authority to transfer any lawsuit, appeal, or other proceeding from one High Court to another, or from one Civil Court in a state to another Civil Court in a different state.
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