Concept of cause of action or reason for filing transfer petition has to be examined.

P. K. MISRA, J.

1. The unnumbered civil miscellaneous petition is filed by the defendant for transferring O.S. No. 544 of 2006, filed before the I Additional District Court, Coimbatore, to the Principal District Court, Virudhunagar. The relevant portion of the Presidential Order dated 6.7.2004, establishing a Permanent Bench, of the Madras High Court at Madurai, is as follows:

“There shall be established a permanent Bench of the Madras High Court at Madurai and such Judges of the Madras High Court, … shall sit at Madurai in order to exercise the jurisdiction and powers for the time being vested in that High Court in respect of cases arising in the districts of … (names of the districts are omitted as unnecessary)

Provided that the Chief Justice of that High Court may, in his discretion, order that any case or class of cases arising in any such district shall be heard at Chennai.”

2. Thus, as per the Presidential Order, some of the Districts including Virudhunagar have been carved out and come within the jurisdiction of the Permanent Bench at Madurai, whereas the other districts including Coimbatore continue to remain within the jurisdiction of the Principal Bench it Chennai.

3. Registry has raised the question of maintainability of such transfer petition as the district of Coimbatore does not come within the territorial jurisdiction of the Permanent Bench at Madurai.

4. Learned single Judge, before whom Transfer C.M.P. (MD) SR. No. 31306 of 2007 was listed, has referred the matter to be considered by the Division Bench in view of importance of the question raised and also because of some divergence of view in such matter.

5. Keeping in view the importance of the question raised, we have requested Mr. M.M. Vallinayagam and Mr. G. Prabhu Rajadurai, Advocates, to assist the Court as Amicus curiae. Apart from the above counsels, we have heard Mr. S.N. Ravichandran for the petitioner. We place on record our appreciation for the valuable assistance rendered by all the counsels.

6. Sections 22 to 25 of the Code of Civil Procedure hereinafter referred to as “the C.P.C,” deal with the question of transfer. A careful reading of Sections 22, 23 and 24 of C.P.C. makes it clear that the provisions contained in Sections 22 and 23 must be read together. Section 22 itself makes it clear that such a petition for transfer can be filed only by the defendant in a case where the suit could have been filed in any one of two or more Courts. It is not applicable where the suit could have been instituted only in one Court. Moreover, such petition has to be filed at the earliest, possible, opportunity and in all cases before settlement of issues. Section 23 lays down the procedure as to how such petition under Section 22 can be filed. As per Section 23(1), where the Courts having jurisdiction are subordinate, to one appellate Court, the petition under Section 22 is to be made before such appellate Court. As per Section 23(2), where such Courts are subordinate to different appellate Courts but to the same High Court, the petition shall be made before the High Court. As per Section 23(3) where such counts are subordinate to different High Courts, the application can be filed before the High Court who has jurisdiction over the Court wherein the suit has been filed.

7. The provisions contained in Section 24 stand on a different footing. While a petition under Section 22 read with Section 23 can be filed only by the defendant and that too before the settlement of issues, an application under Section 24 can be filed by any of the parties, that is to say, either the plaintiff or the defendant. Moreover such application can be filed at any stage. Under Sections 22 and 23, a suit may be transferred from a Court having jurisdiction to a Court having alternative or parallel jurisdiction, whereas under Section 24(2) a suit or proceeding may be transferred to a Court competent to try such suit though such latter Court may not have territorial jurisdicti