Summary
Plaintiffs whose suit before the District Judge at Dimapur, Nagaland had thrice been dismissed and restored sought its transfer under Section 24 CPC to the District Judge at Guwahati, Assam; the Gauhati High Court, the common High Court for Assam, Nagaland, Mizoram and Arunachal Pradesh, rejected the application relying on Durgesh Sharma, holding that only the Supreme Court can order an inter-State transfer under Section 25. The Supreme Court allowed the appeal: Section 25 applies to inter-State transfers where both States have their own High Court under Article 214, not where they share a common High Court under Article 231; a common High Court may exercise its Section 24 power even for an inter-State transfer if both civil courts are subordinate to it, a narrow reading of Section 25 being inconsistent with access to justice for litigants of the North-East.
Issues
- Whether Section 25 CPC, which vests the Supreme Court with power to transfer a suit from a civil court in one State to a civil court in another State, bars a common High Court for two or more States under Article 231 from entertaining an application under Section 24 CPC to transfer a suit between civil courts in different States that are both subordinate to it.
Provisions considered
- Section 24(1)(a) and (b), Code of Civil Procedure, 1908The general power of transfer and withdrawal is fettered only by the requirement that the transferee court be subordinate to the High Court and competent; nothing in the section bars its exercise because the transferee court is in a different State, and the power subsists so long as the court remains subordinate under Articles 227 and 235 and Section 3 CPC. (¶¶ 37, 41, 43)
- Section 25 (as substituted by Act 104 of 1976), Code of Civil Procedure, 1908The special power was conferred on the Supreme Court to remedy the mischief of transfers depending on the consent of two State Governments; it is attracted where the transferor and transferee courts are not only in different States but under the superintendence and control of different High Courts, as in Durgesh Sharma, and is not a complete bar on a common High Court. (¶¶ 27, 28, 38, 39, 40, 44)
- Articles 214, 231, 227, 235 and 228, Constitution of IndiaParliament may establish a common High Court for two or more States; all courts in Assam, Nagaland, Mizoram and Arunachal Pradesh are under the superintendence and control of the Gauhati High Court, and even a withdrawal under Article 228 to its principal seat would be an inter-State transfer which Section 25 cannot bar. (¶¶ 16, 24, 26, 39, 45)
- Sections 22 and 23, Code of Civil Procedure, 1908These provisions permit transfer on the doctrine of forum conveniens at the instance of a defendant alone and have no application to an application by plaintiffs. (¶ 47)
Held
- Durgesh Sharma binds where the High Court of one State seeks to transfer a proceeding to a court subordinate to the High Court of another State, but its ratio does not apply to a common High Court; Megha Jain, Chalasani Deepthi and Irene Blanch Khera consistently hold that Section 25 does not bar a common High Court from entertaining a Section 24 application for an inter-State transfer within its jurisdiction. (¶¶ 30, 31, 32, 33, 34, 35, 36)
- Withdrawal of a suit from a court in Nagaland under Section 24(1)(b)(i) to the principal seat at Guwahati would itself involve an inter-State movement that Section 25 cannot control, and it would be a fallacy to permit such transfer under sub-clause (i) but not under sub-clause (ii); on a harmonious reading Section 25 bars transfer between civil courts of States having their own High Courts and not within a common High Court. (¶ 44)
- A High Court is as much a constitutional court as the Supreme Court; Section 25 must be construed in a fair, pragmatic and realistic manner, and a narrow reading that compels litigants of far-flung areas of the North-East to approach the Supreme Court would impede access to justice, a fundamental right. (¶¶ 42, 46, 48)
Result
Appeal allowed; Gauhati High Court judgment dated 10.12.2015 in TR No. 68 of 2015 set aside and the High Court to decide the Section 24 CPC application afresh on its merits with reasonable priority; Transfer Petition (C) No. 307 of 2016 under Section 25 CPC dismissed as infructuous; parties to bear their own costs.