IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM

AND ARUNACHAL PRADESH)

Transfer Petition( C ) No. 23/ 2015

Smti Pomi Sengupta

Wife of Shri Biswajit Sengupta
Daughter of Shri Prabhat Ch. Das
Resident of topla Basti, Near NS Area, X-55
P.O. & P.S Digboi
Dist-Tinsukia, Assam

………. Petitioner

-Versus-

1.Shri Biswajit Sengupta

Son of Sri Bimal Sengupta

Resident of Kanaklata Path , Raja Ali Road,

Sripuria, PO & PS-Tinsukia

Dist-Tinsukia

Presently Residing at Minister Line,

Tezu, PO & PS-Tezu, Dist-Lohit

Arunachal Pradesh.

2.The State of Arunachal Pradesh

………. Respondents

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 PRESENT

HON’BLE MR. JUSTICE N. CHAUDHURY

For the Petitioner : Mr. R Dev, Advocate

For the Respondent : Mr. B Banerjee, learned Amicus Curiea, Mr. K Dorji, Adv.

Date of hearing :07.10.2015

Date of Judgment : 13.10.2015

JUDGMENT AND ORDER(CAV)

The main point for determination in this case is whether High Court

in exercise of power under Section 24 of the Code of Civil Procedure can

transfer a proceeding pending in one State to another court in another

State merely because both the courts are under territorial jurisdiction of

the same High Court. Considering the gravity of the point for

determination, this court requested Mr. B Banerjee, learned senior counsel

who was present in the court to render required assistance as Amicus

Curiae and the learned senior counsel readily agreed to the request.

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 2. I have heard Mr. B Banerjee, learned senior counsel, Amicus Curiae

Mr. K Doji for the respondents and Mr. Mr. R Dev on behalf of the

petitioner.

3. The facts involved in the present proceeding is that opposite party

Biswajit Sengupta who is a permanent resident of Tinsukia at present

residing at Tezu in the State of Arunachal Pradesh in course of his

employment. He married the petitioner herein on 17.4.2008 at Digboi

within the State of Assam following Hindu rites. The parties started their

matrimonial life at Shripuria Pathar in the District of Tinsukia and

thereafter went to Tezu where the respondent No. 1 was residing because

of his employment. It is alleged that since after marriage, the husband

and his family members started torturing the wife and demanded dowry to

the tune of Rs.50,000/- while the petitioner wife tolerated the torture

meted out to her silently. A boy child was born to them on 20.7.2009 at

IOC Hospital in Digboi in the State of Assam. Even the birth of a male child

to a family did not improve the relation between the parties and it is

alleged to have worsened further. The petitioner wife was physically and

mentally tortured because of which she was compelled to leave her

matrimonial house and returned to her paternal residence at Digboi on

12.9.2010. Barely three months have elapsed thereafter the

husband/respondent No.1 instituted a divorce proceeding being

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 T.S.(Divorce) No.12 of 2014 in the court of learned District Judge at Tezu

in the State of Arunachal Pradesh and eventually a summon of the

proceeding was served on the present petitioner. The petitioner

immediately rushed to this High Court and filed an application under

Section 24 of the Code of Civil Procedure praying for transfer of the

proceeding from the court of learned District Judge at Tezu to the District

Judge at Tinsukia on several grounds. She stated that she is under severe

financial constraints and braving all odds, she managed to get a written

statement filed at Tezu through a learned counsel but was not in a

position to further contest the proceeding at Tezu inasmuch as she is a

poor woman and that her six year old child is reading in Kindergarten class

at Digboi. She does not have any source of income and has been living at

the mercy of her parents. She further stated that her father is also a poor

person being a painter by profession and is 75 years old. Her father has

been suffering from various old age ailments and cannot support the

petitioner financially or otherwise and under such circumstances, really the

petitioner has been living at the mercy of her elder brother. On the other

hand, respondent No.1 is a teacher of Government school and in addition

to monthly salary of Rs.15,000/- he has also been earning about

Rs.20,000/- from tuition. The respondent No.1 , therefore, shall have not

difficulty in coming to his own home town for contesting the proceeding

while the petitioner cannot go to Tezu for contesting the proceeding owing

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 to her aforesaid difficulties. With these submissions on facts, petitioner

prayed that the divorce proceeding pending in the court of learned District

Judge at Tezu be transferred to the court of District Judge, Tinsukia in the

State of Assam.

4. This court by order dated 25.5.2015 issued notice of motion

observing that the question as to maintainability of the proceeding is to be

decided in view of provision of Section-25 of the Code of Civil Procedure.

By the same order, Mr. B Banerjee, learned senior counsel who was

present in the court at that time was engaged as Amicus Curiae to assist

this court on the point of law.

5. On being summoned, the husband/respondent No. 1 has entered

appearance by engaging counsel.

6. Section -24 of the CPC has conferred power on High Court to

transfer any suit, appeal or other proceeding pending before it for trial or

disposal to any court subordinate to it or to withdraw the same or may

either try to dispose the same or transfer the appeal for disposal to any

court subordinate and competent to try to dispose of the same. Section 24

of the CPC is a concurrent general provision which has vested power on

the District Judge as well as the High Court for withdrawing any suit or

appeal from any court subordinate to it or either dispose of the same or

to transfer to any other court subordinate to it for disposal. What is

necessary for Section-24 is that the court where the subject proceeding is

Tr. P (C) No.23 of 2015 Page 5 of 18

 pending must be subordinate to the High Court or the District Court as the

case may be and there upon the District court or High Court may

withdraw the same to itself and may either try to dispose of the same or

may transfer the same for disposal to any other court within its territorial

jurisdiction. Incidentally, the State of Assam and the State of Arunachal

Pradesh are under the jurisdiction of the same High Court and so at the

first blush, it appears that such an application under Section- 24 of the

CPC would be maintainable for transferring a proceeding from Arunachal

Pradesh to Assam and vice-versa. But once the provision of Section- 25 is

perused, a serious doubt arises as to whether such a power can at all be

exercised by High Court although both the courts are under the

jurisdiction of the same High Court.

7. Section-25 of the CPC provides that on the application of a party

and after notice to the other side and after hearing them, Hon’ble

Supreme Court may at any stage direct that any suit, appeal or other

proceeding be transferred from a High Court or other civil court in one

State to a High Court or civil court in any other State. The mentioning

of the words of ‘in any other State’ occurring in Section -25 (1) gives rise

to reasonable doubt as to whether legislature in its wisdom has

exclusively vested the power to transfer a proceeding pending in a court

in one State to another court in another State with the Supreme Court

only.

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 8. The provisions under sections 22 to 25 of the Code of Civil

Procedure are the appropriate provisions in regard to transfer of

proceedings from one court to another. Section 22 provides that when a

suit may be instituted in more than one court in view of the provisions of

section 16 to 20 of the Code and plaintiff being dominus litis chooses one

court as per his convenience, a defendant may at the earliest opportunity

and in all cases before settlement of issues, file an application for transfer

of the suit to any of the other courts having jurisdiction to try the same

and thereupon the court to which such application shall be filed , shall

determine after hearing all sides in which of the courts having jurisdiction

to try the suit , the same shall be tried. Section 23 of the Code relates to

provisions as to which court such a transfer application shall be filed In

Section-23 (1) it is provided that when the two courts having jurisdiction

over a matter is subordinate to the same appellate court in that event

application for transfer can be made before the appellate court. But when

the court where the proceeding is pending and the court to which it is

sought to be transferred are not subordinate to the same appellate court

but they are under the control of the same High Court in that event, as

per clause (2) of section 23, the application can be filed before the same

High Court. On the other hand, if such courts are subordinate to different

High courts , the transfer application can be filed in that High court unde4r

whose jurisdiction the suit is pending. We are confronting here a question

Tr. P (C) No.23 of 2015 Page 7 of 18

 which does not appear to be directly addressed by section 23 of the Code.

The Code contemplates a situation when the two subordinate courts

having jurisdiction to try a suit are either under territorial jurisdiction of

one High court or under two High courts bvut does not deal with a

situation when when the two subordinate courts are situated in two

different states under territorial jurisdiction of one High court. This is

because most of the states of the country, have their own separate high

court. Perhaps, the only exceptions are the high court of Punjab and

Haryana and the Gauhati High court where more than one states are

under control and superintendence of one High court.

9. Perhaps in view of the provision of Section-23 (2) of the CPC,

applications are being filed before this court for transfer of proceedings

pending in a court in one State under territorial jurisdiction of this court to

a court situated in another State under the jurisdiction of this High Court.

Incidentally, the Gauhati High Court at present has jurisdiction not only

over the State of Assam but also over the States of Nagaland, Mizoram

and Arunachal Pradesh. Prior to March 23, 2013 this High court had

territorial jurisdiction over the States of Meghalaya, Manipur and Tripura.

But after establishment of different High courts in those States, Gauhati

High Court has no jurisdiction over those States any more. Mr. R Dev

learned counsel for the petitioner in the present case has cited some

instances to show that when these states were under jurisdiction of this

Tr. P (C) No.23 of 2015 Page 8 of 18

 High court, applications under Section 24 of the CPC used to be filed at

the principal seat of the High court for transfer of a proceeding from one

State to another and never before any question was raised as to whether

such an application is maintainable. Since such a question was never

before raised, so there was no occasion on the part of the High court to

deal with such question. Now, that the question has arisen at the very out

set during motion hearing and before the opposite party had appeared,

the question needs to be answered.

10. Mr. B Banerjee, learned Amicus Curiae has placed reliance on the

case of Durgesh Sharm a –vs- Jayashree Sharm a reported in (2008)

9 SCC 648. In that case, Durgesh Sharma , the husband filed a divorce

proceeding under section 13 of The Hindu Marriage Act, 1955 before

Family Court at Ujjain in the state of Madhya Pradesh. His wife , Jayashree

Sharma then filed an application under section 23 of the Code of Civil

Procedure before High Court of Madhya Pradesh praying for transfer of the

divorce proceeding at Ujjain to a competent court at Malegaon in the

District of Nasik in Maharashtra. The High court of Madhya Pradesh by

judgment dated 25.1.2007 allowed the application and transferred the

divorce proceeding pending at Ujjain under its territorial jurisdiction to a

court at Malegaon under territorial jurisdiction of Bombay High court.

Aggrieved, husband Durgesh Sharma approached the Hon’ble Supreme

court challenging the order passed by the Madhya Pradesh High court

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 transferring a proceeding outside its territorial jurisdiction. The Hon’ble

Supreme court allowed the SLP setting aside the order of the High court.

The power and jurisdiction of High court under Section 24 of vis-a –vis

the provision of Section-25 of the Code came up for consideration in this

case and the Hon’ble Supreme Court has held that power of transferring a

proceeding from one State to another has been consciously vested by

legislature exclusively on the Supreme Court and a High Court in exercise

of power under Section 24 CPC cannot exercise this jurisdiction.

11. Plaintiffs as a general rule is the dominus-litis to choose the forum

for institution of proceeding and under a normal circumstance, defendants

cannot raise any objection in regard thereto provided the court where the

proceeding is pending has inherent jurisdiction to try the same. Section-22

CPC provides that when two different courts have competence and

jurisdiction to try a matter and the proceeding has been instituted in one

of these two courts, in that event the defendants may apply to have the

suit transferred to another court and Section-23 lays down the procedure

in regard to filing of such application. Hon’ble Supreme Court held in the

aforesaid case that earlier there was cleavage of opinions on the question

whether a case could be transferred from a court having no jurisdiction to

try it. The Law Commission, therefore, considered the question and

suggested amendment in the provision. In the Statements of Objects and

Reasons, the following observations were made:

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 “There is a conflict of decisions with regard to the question
whether Section 24 applies in relation to a transfer of a suit from a
court which has no jurisdiction to try it. The High Court of Andhra
Pradesh has held that the language of Section 24 is very wide and
there are no restrictions or impediments in the way of the High
Court exercising the power of transfer merely because there is a
dispute regarding jurisdiction. Some other High Courts have taken
a contrary view. It is being clarified that a case may be transferred
from a court which has no jurisdiction to try it.”

12. Pursuant to the aforesaid recommendation of the Law Commission,

amendment of the CPC was made in 1976 and this is how present Section-

24 has come into existence. Section-24 of the CPC after amendment on

1976 is quoted below:

“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 desire 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

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 (iii) retransfer 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 thereafter tries
such suit 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, Courts of Additional and
Assistant Judges shall be deemed to be subordinate to the District
Court.
(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.”

13. On the other hand, Section-25 CPC as it existed in the Code of Civil

Procedure, 1908 vested power in the Governor General in Council to

transfer in certain circumstances a suit, appeal or other proceeding from

one High Court to another High Court. In the year 1937 by issuance of the

Government of India (adaptation of Indian Law) order, 1937 some

amendments were made in Section-25 of the then CPC. Prior to the

amendment the State Government could exercise power by affecting

transfer from one High Court to another High and this is why Law

Commission made recommendation for taking away this power from the

State Government in view of analogous provision of Section-406 of the

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 Code of Criminal Procedure. The Law Commission made recommendation

for empowering Hon’ble Supreme Court to transfer cases and appeals

from one court to another court. This is how wide power on transfer has

been taken out form the power of the State Government and has

conferred power consciously on the Supreme Court. Hon’ble Supreme

Court considered Clause-12 of the statements of objects and reasons of

the Law Commission in this regard and the same is quoted below:

“Clause 12.—Section 25 of the Code empowers the State

Government to transfer suits, etc. in certain circumstances from
the High Court exercising jurisdiction in the State to another High
Court. This section is very narrow in scope as it provides only for
the transfer of suit, appeal or other proceeding pending in a High
Court presided over by a Single Judge. Besides, the State
Government, does not seem to be an appropriate agency for
exercising the power of transfer. Section 25 is, therefore, being
substituted by a new section which provides for the transfer to the
Supreme Court the existing power vested with the State
Government and to confer on the Supreme Court such wide
powers of transfer as it has in criminal cases under Section 406 of
the Code of Criminal Procedure, 1973. Further, the new section
covers transfer of cases from or to the Original Side of a High
Court to or from any other civil court. The new section is thus
wider in scope than Section 406 of the Code of Criminal Procedure,
1973.”

14. The present Section-25, therefore, is an outcome of aforesaid

historical and legislative events. The Hon’ble Supreme Court has held in

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 the case of Durgesh Sharma (supra) that section 23 of the CPC is nothing

but a provision of procedure and it does not confer any power of

transferring a proceeding at all. The findings of the Hon’ble Supreme Court

in this regard have been given from para-52 to 57 of the aforesaid

Judgment which are quoted below for ready reference:

“52. The counsel for the respondent wife submitted that provisions
of Sections 23(3) and 25 of the Code should be harmoniously
construed. Referring to Priyavari Mehta12 and Lakshmi
Nagdev15 it was submitted that Section 23(3) of the Code did not
stand deleted or superseded by Section 25 of the Code. If it is held
that for transfer of a case, appeal or other proceeding from a court
subordinate to one High Court to a court subordinate to another
High Court, only this Court can be approached, Section 23(3) of
the Code will become nugatory, redundant and futile. No court of
law will interpret one provision of law which will make another
provision superfluous or ineffective. It was, therefore, submitted
that it has been rightly held that the parties must be left “to choose
the forum” either under Section 23(3) or 25 of the Code.
53. We are unable to uphold the contention. In our considered
view, the fallacy in the argument lies in the fact that it presumes
and presupposes that Section 23 of the Code is a substantive
provision which authorises a court mentioned therein to order
transfer. It is not so. The said section, as held by us, is merely a
procedural one or a machinery provision and provides mode,
method or manner in approaching a court for making an
application. It does not empower a court to effect transfer.

Tr. P (C) No.23 of 2015 Page 14 of 18

 Moreover, Section 25 of the Code is a complete code dealing with
substantive as well as procedural law. Section 23, in our opinion,
therefore, cannot be interpreted in the manner suggested by the
learned counsel appearing for the wife.

54. After the commencement of the Constitution and

establishment of the Supreme Court (this Court), Parliament
thought it proper to amend Section 25 of the Code and
accordingly, it was substituted by empowering this Court to order
transfer from one High Court to another High Court or to one civil
court in one State to another civil court in any other State.
55. It is no doubt true that even when Section 25 in the present
form was substituted by the Amendment Act of 1976, sub-section
(3) of Section 23 of the Code has neither been deleted nor
amended. That, however, is not relevant. Since in our considered
view, Section 23 is merely a procedural provision, no order of
transfer can be made under the said provision. If the case is
covered by Section 25 of the Code, it is only that section which will
apply for both the purposes, namely, for the purpose of making
application and also for the purpose of effecting transfer. On the
contrary, reading of sub-section (3) of Section 23 of the Code in
the manner suggested by the learned counsel for the respondent
wife would result in allowing inroad and encroachment on the
power of this Court not intended by Parliament. Section 23,
therefore, in our considered view, must be read subject to Section
25 of the Code. The decisions taking a contrary view do not lay
down correct law. We, therefore, overrule them. Even if such
power was with a High Court earlier, it stood withdrawn with effect

Tr. P (C) No.23 of 2015 Page 15 of 18

 from 1-1-1977 in view of Section 25 of the Code as amended by
the Code of Civil Procedure (Amendment) Act, 1976.
56. We are unable to agree with the view that in such cases,
inherent powers may be exercised under Section 151 of the Code
as held by the High Court of Punjab and Haryana in SBI8. It is
settled law that inherent powers may be exercised ex debito
justitiae in those cases, where there is no express provision in the
Code. The said power cannot be exercised in contravention or in
conflict of or ignoring express and specific provisions of law. Since
the law relating to transfer is contained in Sections 22 to 25 of the
Code, and they are exhaustive in nature, Section 151 has no
application. Even that contention, therefore, cannot take the case
of the respondent wife further.
57. For all these reasons, in our opinion, the order passed by the
High Court is not sustainable and deserves to be set aside. We hold
that a High Court has no power, authority or jurisdiction to transfer
a case, appeal or other proceeding pending in a court subordinate
to it to any court subordinate to another High Court in purported
exercise of power under sub-section (3) of Section 23 of the Code
and it is only this Court which can exercise the said authority under
Section 25 of the Code. The order passed by the High Court,
therefore, deserves to be set aside and is accordingly set aside.”

15. The case of Durges Sharma(supra) subsequently came for

consideration before another Bench of the Hon’ble Supreme Court in the

case of Nahar Industrial Enterprises Ltd. –vs- Hongkong and

Shanghai Banking Corporation reported in (2009) 8 SCC 646. In that

case The Hon’ble Punjab and Haryana High court had transferred a suit

Tr. P (C) No.23 of 2015 Page 16 of 18

 pending in a court under its territorial jurisdiction to the Debt Recovery

Tribunal in the state of Maharashtra beyond its jurisdiction. Considering

two earlier judgments by coordinated Benches of the Supreme court , it

was held that the question as to jurisdiction of tribunal vis a vis civil court

was in the uppermost in the mind of the court in the case of Indian Bank

vs ABS M arine Products Ltd. reported in (2006)5 SCC 72 , the same

question was not dealt with in the later case of SBI v R anjan Chem cals

Ltd reported in (2007)1SCC 97 . The Hon’ble Supreme court held that a

Debt Recovery Tribunal is neither a civil court nor could the jurisdiction of

civil court be taken away by transferring a suit from a civil court to a DRT.

The view taken by the Hon’ble Supreme Court in the case of Durgesh

Sharma(supra) has not been modified by the subsequent Bench of the

Hon’ble Supreme Court in any way. In the concluding paragraph of the

said judgment, Hon’ble Supreme Court observed that the Punjab and

Haryana High Court could not have transferred a suit from Civil Court at

Ludhiana to the DRT and accordingly the SLP Was allowed. The result is

that the ratio of Durgesh Sharma (supra) still holds the field.

16. Section 24 of the Code does not deal with power of High court to

transfer a suit beyond its territorial jurisdiction or from one state to

another within its jurisdiction. There is no mention of inter- state transfer

in that section at all. Such a mention only finds place in section 25 of the

Code and the power has been conferred on Supreme Court thereby.

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 Exercise of power under section 24 CPC to transfer a suit pending in a

court in one state to another court in another state merely because both

the states are under territorial jurisdiction of same high court would

amount to adding words in section 24 of the CPC which is not permissible

under the settled principles of interpretation. A bare perusal of section 25

CPC shows that such power has been exclusively vested on Supreme Court

alone. Therefore, there is no doubt that power to transfer a proceeding

from one State to another State has been exclusively and consciously

vested by the legislature on the Supreme Court alone and so High Court in

exercise of power under Section 24 of the CPC cannot usurp that power

under the garb of Section -23 and or Section 151 thereof.

17. In view of above, the application filed under Section 24 CPC

praying for transfer of the divorce proceeding from the Court of District

Judge, Tezu to the Court of District Judge, Tinsukia is not maintainable.

18. Accordingly the transfer petition stands dismissed.

19. No order as to cost.

20. Interim order passed earlier shall stand automatically vacated.

JUDGE

Nivedita

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