Power of transfer and withdrawal by HC or DC by Application or suo motu under S-24CPC
Sections 22 to 25 enact law as regards transfer and withdrawal of suits, appeals and other proceedings from one Court to another Court. Section 24 contains general power of transfer of any suit, appeal or other proceeding at any stage on the application of a party or by a Court suo motu (of its own motion). Sub-section (2) empowers the Court ordering transfer to issue directions for de novo trial or to proceed with the suit, appeal or other proceeding from the point at which it was transferred or withdrawn. This section is thus wider in scope than Section 406 of the Code of Criminal Procedure, 1973. Every application under this section shall be made by a motion which shall be supported by an affidavit.
Moreover, under Section 151 of the Code of Civil Procedure every court has the inherent jurisdiction to pass any order to meet the ends of justice. In Pragji Soorji and Co. of Bombay v. Kalu Mal Shori Mal and Co. of Amritsar, AIR 1924 Lah 306, it has been held that the inherent powers under Section 151 of the Code of Civil Procedure can be used for the purpose of preventing or remedying grave abuses.
Provision under Code of Civil Procedure
Sec 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(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
(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.
(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.
Provisions under The Bengal, Agra and Assam Civil Courts Act, 1887
SECTION 03: CLASSES OF COURTS
There shall be the following classes of Civil Courts under this Act, namely:-
(1) the Court of the District Judge;
(2) the Court of the Additional Judge;
(3) the Court of the Subordinate Judge; and
(4) the Court of the Munsif.
SECTION 09: ADMINISTRATIVE CONTROL OF COURTS
Subject to the superintendence of the High Court, the District Judge shall have administrative control over all the Civil Courts under this Act within the local limits of his jurisdiction.
SECTION 10: TEMPORARY CHARGE OF DISTRICT COURT
(1) In the event of the death, resignation or removal of the District Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his absence from the place at which his Court is held, the Additional Judge, or, if an Additional Judge is not present at that place, the senior Subordinate Judge present thereat, shall, without relinquishing his ordinary duties, assume charge of the office of the District Judge, and shall continue in charge thereof until the office is resumed by the District Judge or assumed by an officer appointed thereto.
(2) While in the charge of the Office of the District Judge, the Additional Judge or Subordinate Judge, as the case may be, may, subject to any rules which the High Court may make in this behalf, exercise any of the powers of the District Judge.
SECTION 11: TRANSFER OF PROCEEDINGS ON VACATION OF OFFICE OF SUBORDINATE JUDGE
(1) In the event of the death, resignation or removal of a Subordinate Judge, or of his being incapacitated by illness or otherwise for the performance of his duties or of his absence from the place at which his Court is held, the District Judge may transfer all or any of the proceedings pending in the Court of the Subordinate Judge either to his own Court or to any Court under his administrative control competent to dispose of them.
(2) Proceedings transferred under sub-section (1) shall be disposed of as if they had been instituted in the Court to which they are so transferred;
(3) Provided that the District Judge may retransfer to the Court of the Subordinate Judge or his successor any proceedings transferred under sub-sec. (1) to his own or any other Court.
(4) For the purposes of proceedings which are not pending in the Court of the Subordinate Judge on the occurrence of an event referred to in sub-section (1), and with respect to which that Court has exclusive jurisdiction, the District Judge may exercise all or any of the jurisdiction of that Court.
Where several Courts having jurisdiction are subordinate to one appellate Court, an application for transfer may be made to such appellate Court and the Court may transfer a case from one Court subordinate to it to another Court subordinate to it. Likewise, where such Courts are subordinate to the same High Court, an application may be made and action may be taken by the High Court transferring a case from one Court subordinate to it to any other Court subordinate to that High Court. But where such Courts are subordinate to different High Courts, it is only the Supreme Court which may pass an order of transfer. In other words, if two courts are subordinate to different High Courts, one High Court has no power, jurisdiction or authority to transfer a case pending in any court subordinate to that High Court to a Court subordinate to other High Court. It is only the Supreme Court which may order the transfer. [Durgesh Sharma Vs. Jayshree [SC 2008]
- Allegation against presiding officer– Pushpadevi vs Jai Narain [AIR 1992 SC 1113]
- Rent Controller- Rent controller is not court. He is a persona designata, so no transfer could be granted.
- High court can try Eviction Suit under West Bengal premises Tenancy Act although it is not a trial court [Krishna Kumar vs Ramnarain [AIR 1984 Cal 162]
- Consolidating of Suits- No provision under CPC apart from Sec151.
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