1. Suit filed in one State — Application for transfer to another State under Section 24, CPC — Rejection by common High Court citing exclusive power of Supreme Court under Section 25, CPC. (Para 4 , 5 )
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2023 Supreme(SC) 169
SUPREME COURT OF INDIA
HRISHIKESH ROY, DIPANKAR DATTA, JJ.
Shah Newaz Khan and Others – Appellants
Versus
State of Nagaland and Others – Respondents
Civil Appeal No. 1497 of 2023, SLP (C) No. 4149 of 2016
WITH
Shah Newaz Khan and Others – Appellants
Versus
State of Nagaland and Others – Respondents
Transfer Petition (C) No. 307 of 2016
Decided On : 28-02-2023
IMPORTANT POINTS
(1) Transfer of suit/appeal – Section 25 of CPC does not in all cases fetter power of a common High Court to order inter-State transfer of a suit, appeal or other proceeding – Section 25 of CPC applies to inter-State transfer of a suit, appeal or other proceeding where both States have a High Court in terms of Article 214 of Constitution and not to a transfer where both States have a common High Court under Article 231 thereof.
(2) A general law cannot defeat provisions of a special law to the extent to which they are in conflict.
Headnote:
(A) Civil Procedure Code, 1908 – Sections 24 and 25 – Constitution of India – Articles 228 and 231 – [North-Eastern Areas (Reorganisation) Act, 1971 – Sections 28 and 29] – Transfer of suit/appeal – Section 25 of CPC does not in all cases fetter power of a common High Court to order inter-State transfer of a suit, appeal or other proceeding – Section 25 of CPC applies to inter-State transfer of a suit, appeal or other proceeding where both States have a High Court in terms of Article 214 of Constitution and not to a transfer where both States have a common High Court under Article 231 thereof – Power under Section 24 of CPC can be exercised by High Court even for inter-State transfer of a suit, appeal or other proceeding, if it is common High Court for two or more States under Article 231 of Constitution and both Civil Courts (transferor and transferee) are subordinate to it – Although States of Assam and Nagaland in political map of India have well demarcated areas, for the purpose of administration of justice, both States are mandatorily subject to jurisdiction of Gauhati High Court – Interpretation of law that seeks to address mischief, that is consistent with Constitution and promotes constitutional objectives and that which responds to needs of nation must be adopted. (Paras 43, 44, 46 and 48)
(B) Statute Law – Generalia specialibus non derogant – A general law cannot defeat provisions of a special law to the extent to which they are in conflict; else, effort has to be made at reconciling the two provisions by homogenous reading – There has to be an inconsistency between the two so as to apply maxim generalia specialibus non derogant – Jurisdiction conferred on Supreme Court pursuant to amendment of Section 25 of CPC in 1976 though special, invocation of jurisdiction of High Court under Section 24 may not come in conflict and defeat Section 25, if jurisdiction is still found available to be exercised in a given case under former without doing violence to the latter. (Para 37)
Facts of the case:
Is Supreme Court sole repository of power in terms of Section 25 of the Code of Civil Procedure to direct transfer of a suit, appeal or other proceeding from a Civil Court in one State to a Civil Court in another State? Or, is it open for a High Court, if it is common High Court for two or more States, to entertain an application for transfer under section 24 of CPC and transfer a suit, appeal or other proceeding from a Civil Court to another Civil Court, both of which are subordinate to such High Court but situate in different States in relation to which it exercises jurisdiction, for consideration and decision?
Findings of Court:
Impugned judgment and order being unsustainable in law has to be and is, accordingly, set aside and civil appeal stands allowed. Gauhati High Court shall now proceed to decide the application under Section 24 of CPC afresh, on its own merits.
Result : Transfer Petition dismissed.
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Table of Contents
2. Whether common High Court can transfer suits between subordinate courts in different States under Section 24, CPC, or if such inter-State transfer is exclusive to Supreme Court under Section 25, CPC. (Para 6 , 9 , 11 )
3. Analysis of common High Court's superintendence under Articles 227 and 235 — Distinction between transfers to different High Courts versus transfers within a common High Court's jurisdiction. (Para 15 , 16 , 37 , 38 , 39 , 40 , 41 , 43 , 44 , 45 , 46 )
4. Section 24, CPC empowers a common High Court to order inter-State transfer if both courts are subordinate to it; Section 25, CPC applies where States have separate High Courts. (Para 38 , 48 )
5. Impugned order set aside — Matter remitted to High Court for fresh consideration of transfer application under Section 24, CPC — Transfer petition under Section 25, CPC dismissed. (Para 49 , 50 )
6. Can a common High Court transfer a suit from one State to another under Section 24 CPC?
Yes, if the High Court is a common High Court for two or more States and both the transferor and transferee civil courts are subordinate to it under Articles 227 and 235 of the Constitution and Section 3 of the CPC. (Para 38 , 41 , 43 , 48 )
7. When does Section 25 of the CPC exclusively apply to inter-State transfers?
Section 25 applies to inter-State transfers of suits, appeals, or proceedings where the involved States have separate High Courts, ensuring no High Court transfers a case to a court subordinate to another High Court. (Para 39 , 40 , 48 )
8. How does the power of withdrawal under Section 24(1)(b)(i) relate to inter-State transfer?
If a common High Court withdraws a suit from a subordinate court in one State to its principal seat in another State, it constitutes an inter-State transfer not barred by Section 25, as the High Court's constitutional powers cannot be abrogated. (Para 44 )
JUDGMENT :
DIPANKAR DATTA, J.
1. Leave granted.
THE ISSUE
2. An issue, pristinely legal and novel, emerges for decision. It is novel in the sense that although three different High Courts of the country have taken views which are entirely consistent, except the view taken in the judgment and order under challenge of the Gauhati High Court which impliedly stands overruled by a larger Bench of the same High Court, this Court hitherto might not have had the occasion to deal with such an issue and decide either way.
3. Shortly put, the issue is:
Is the Supreme Court the sole repository of power in terms of section 25 of the Code of Civil Procedure (for brevity ‘the CPC’) to direct transfer of a suit, appeal or other proceeding from a Civil Court in one State to a Civil Court in another State? Or, is it open for a High Court, if it is the common High Court for two or more States, to entertain an application for transfer under section 24 of the CPC and transfer a suit, appeal or other proceeding from a Civil Court to another Civil Court, both of which are subordinate to such High Court but situate in different States in relation to which it exercises jurisdiction, for consideration and decision?
FACTS AND THE ORDER UNDER CHALLENGE
4. The facts leading to presentation of this appeal reveal that the appellants having instituted a suit for declaration of right, title and interest as well as for perpetual injunction and damages in the court of the District Judge at Dimapur, Nagaland sometime in 2007, failed to prosecute it in the right earnest allegedly due to hostile circumstances created by the private defendants in the suit resulting in dismissal and restoration thereof on three occasions. Pleading why it is impossible for them to continue with prosecution of the suit at Dimapur, the appellants moved an application under section 24 of the CPC before the Gauhati High Court for an order to transfer the suit to the court of the District Judge at Guwahati, Assam. A learned Judge of the Gauhati High Court, which presently happens to be the common High Court for the States of Assam, Nagaland, Mizoram and Arunachal Pradesh, presiding over the Bench at the principal seat at Guwahati, rejected the application for transfer by a judgment and order dated 10th December, 2015. While so rejecting, the learned Judge followed His Lordship’s previous decision in Pomi Sengupta vs. Biswajit Sengupta, (2015) 6 GLR 396 which, in turn, had entirely relied on the decision of this Court in Durgesh Sharma vs. Jayshree, (2008) 9 SCC 648. The judgment and order of rejection of the application under section 24 of the CPC is under challenge in this appeal.
5. The appellants, by way of abundant caution, have also applied before this Court under section 25 of the CPC seeking the same relief that was disallowed by the learned Judge.
APPELLANTS’ CONTENTIONS
6. Appearing in support of the appeal, Mr. Goswami, learned senior counsel contended that:
(a) Article 214 of the Constitution of India ordains that there shall be a High-Court for each State. Article 231 of the Constitution of India provides for the establishment of a common High Court for two or more States.
(b) The relevant provisions of the CPC for the purpose of a decision on the present dispute are sections 22 to 25 read with section 3 thereof dealing with subordination of courts.
(c) The power of the High Court and the District Courts to direct transfer of proceedings is provided in section 24 of the CPC.
(d) The facts of the instant case clearly satisfy all the ingredients of section 24 CPC, more particularly, sub-clause (ii) of clause (b) of sub-section (1) thereof. A bare perusal of such provision 24 would indicate that the High Court may, at any stage, direct transfer of proceedings pending before it to any court subordinate to it, or transfer proceedings pending in any court subordinate to it to itself or to any other court subordinate to it. Thus, the emphasis under the said provision is on the expression “court
