Code of Civil Procedure, 1908 (CPC)
Transfer of Suits under Sections 22 to 25 CPC: Grounds, Powers and Procedure
The rules on the place of suing usually leave the plaintiff with a choice of forum, and the plaintiff chooses the one that suits him. Sections 22 to 25 of the Code of Civil Procedure, 1908 exist because that choice must sometimes yield: to the defendant's convenience where several courts were open, to the interests of justice within a State, and to the ends of justice across State lines. These notes cover all four transfer provisions, the grounds on which a civil suit is transferred, the law on apprehension of bias, and the distinction between transfer by the High Court under Section 24 and by the Supreme Court under Section 25.
The four transfer routes, the grounds recognised, and what a transfer is not for
1. Sections 22 and 23: Transfer Where More Than One Court is Competent
§ Section 22, CPC 1908 Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed. |
Section 22 is a narrow and specific provision, and four conditions must be satisfied before it operates. First, the suit must be one that could have been instituted in two or more courts; where only one court was competent, the section has no application at all. Second, only a defendant may apply, since the provision exists to answer the plaintiff's choice of forum, and a plaintiff who has chosen cannot complain of his own choice. Third, the application must be made after notice to the other parties. Fourth, it must be made at the earliest possible opportunity, and in all cases where issues are settled, at or before their settlement, the same discipline the Code imposes on objections under Section 21. The court then decides, on the balance of convenience, in which of the competent courts the suit shall proceed.
Section 23: to which court the application lies
Situation | Court to which the Section 22 application is made |
|---|---|
Both courts are subordinate to the same appellate court | That appellate court |
The courts are subordinate to different appellate courts, but to the same High Court | The High Court |
The courts are subordinate to different High Courts | The High Court within whose local limits the court in which the suit is brought is situate |
Section 23(3) adds an important limit on the third situation: where the courts are subordinate to different High Courts, the High Court approached may transfer the suit to a court in another State only in the manner and to the extent the section allows, because one High Court has no general authority over the courts of another State. That gap is precisely what Section 25 fills.
2. Section 24: General Power of Transfer and Withdrawal
§ Section 24, CPC 1908 (in substance) On the application of any party 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) retransfer the same for trial or disposal to the Court from which it was withdrawn. Where a suit or proceeding has been transferred or withdrawn, the Court which thereafter tries it may, subject to any special directions, either retry it or proceed from the point at which it was transferred or withdrawn. |
Section 24 is the workhorse of transfer practice, and its breadth is its defining feature. The power belongs to both the High Court and the District Court, each over the courts subordinate to it. It reaches any suit, appeal or other proceeding, and may be exercised at any stage, before or after issues are framed, and even during trial. It may be exercised on the application of any party, plaintiff or defendant, or by the court of its own motion without notice. And it includes not merely transfer but withdrawal, allowing the superior court to take a case to itself, to send it to another competent court, or to send it back.
§ Three points examiners test on Section 24 The transferee court's competence. The transferee must ordinarily be competent to try the suit. The section expressly permits transfer notwithstanding want of pecuniary jurisdiction in the terms it provides, and in such a case the transferee court proceeds as though its ordinary limits did not restrict it for that suit. Retrial or continuation. After transfer, the new court may, unless directed otherwise, either retry the matter de novo or proceed from the point at which it was transferred. Evidence already recorded need not be wasted. Suo motu exercise. The High Court or District Court may transfer on its own motion without notice, which distinguishes Section 24 sharply from Sections 22 and 25, both of which require a party's application. |
3. Section 25: Transfer by the Supreme Court
§ Section 25, CPC 1908 (in substance) On the application of a party, and after notice to the parties and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, 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 other Civil Court in any other State. Every application shall be made by a motion supported by an affidavit. The Court to which the suit is transferred shall, subject to any special directions, either retry it or proceed from the stage at which it was transferred. Where an application is dismissed as frivolous or vexatious, compensatory costs may be awarded, and the law applicable is the law which the transferor Court would have applied. |
Section 25 exists because no High Court can transfer a case out of its own State. Four features follow from its text. The power is inter-State only: it moves a case from a court in one State to a court in another. It is exercisable only on a party's application, never suo motu, and the application must be by motion supported by affidavit. The test is a single one, whether the order is expedient for the ends of justice. And the transferee court applies the law which the transferor court would have applied, so a party does not gain or lose substantive advantage by the move, which is important where the two States have different local amendments to the Code or different personal law legislation in force.
Section 24 compared with Section 25
Basis | Section 24 | Section 25 |
|---|---|---|
Which court transfers | High Court or District Court | The Supreme Court alone |
Geographical scope | Within the State, among courts subordinate to the transferring court | From a court in one State to a court in another State |
How invoked | On any party's application or suo motu, without notice if the court acts on its own motion | Only on a party's application, by motion supported by affidavit |
Test applied | The interests of justice and balance of convenience | Whether the order is expedient for the ends of justice |
Additional powers | Withdrawal, trial by the superior court itself, and retransfer | Transfer only; compensatory costs for a frivolous application |
Law applied afterwards | The same law, the courts being within one State | The law the transferor court would have applied |
4. Grounds for Transfer of a Civil Suit
Neither Section 24 nor Section 25 enumerates grounds; both confide the matter to judicial discretion guided by the interests of justice. The case law has nevertheless settled the categories that succeed.
i. Reasonable apprehension of bias or of an unfair trial. The leading ground, examined separately below.
ii. Balance of convenience of parties and witnesses. Where the bulk of the witnesses, the documents and the subject matter lie in one place, and the chosen forum imposes disproportionate hardship, transfer follows. In matrimonial proceedings this ground has produced a settled practice of leaning in favour of the wife's convenience, particularly where she is unemployed, has the care of young children, or faces long and expensive travel.
iii. Common questions pending in different courts. Where several suits between the same or connected parties raise common questions, transferring them to one court avoids conflicting decisions and duplicated evidence, and is the natural companion to consolidation under Section 151.
iv. Avoidance of multiplicity of proceedings, including cases where a transfer allows related matters to be heard and disposed of together.
v. Serious questions of law of general importance, or circumstances such as the inability of a court to function, the paralysis of proceedings by local conditions, or a real threat to the safety of a party or witnesses.
§ What will not justify a transfer Mere dissatisfaction with the judge or with adverse interlocutory orders. The remedy against a wrong order is appeal or revision, not the removal of the judge. The convenience of the plaintiff alone, who chose the forum, or of counsel rather than of the party. A desire to select a forum thought more favourable on the law, since Section 25 expressly preserves the law that the transferor court would have applied. Vague or unsubstantiated allegations against the presiding officer. A transfer carries a stigma for the court from which the case is moved, so the material must be real and must be examined with care. |
5. Transfer on the Ground of Apprehension of Bias
The governing principle is that justice must not only be done but must manifestly and undoubtedly be seen to be done. A transfer on this ground therefore does not require proof that the judge is in fact biased; it requires that the apprehension in the mind of the party be reasonable, that is, such as a right-minded person in the party's position would entertain, and that it be founded on material, not on suspicion or on the party's disappointment. Typical instances are a demonstrable personal or professional connection between the judge and a party or counsel, an interest of the judge in the subject matter, or conduct disclosing prejudgment of the case. Two cautions are equally settled: a party is not entitled to choose his judge, and an unfounded allegation made to secure a transfer may itself attract costs.
📖 Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167 A transfer was sought on the ground that a fair trial was not possible in the court where the proceedings were pending, on account of the atmosphere and the alleged hostility of a section of the local Bar. Krishna Iyer J stated the guiding principles: assurance of a fair trial is the first imperative of the dispensation of justice, and the central criterion for a transfer is the requirement of the interests of justice; but a mere apprehension in the mind of a party, without material sufficient to satisfy the court that a fair trial is in real jeopardy, is not enough, and vague allegations, inconvenience of counsel or the local unpopularity of a party will not do. Petitions for transfer must be examined with care, because a transfer implies a reflection on the court from which the case is moved. Rule: the test is a reasonable apprehension founded on material that a fair trial is in jeopardy, not a party's subjective preference. Though stated in a criminal transfer, the principle governs civil transfers under Sections 24 and 25 as well. |
📖 Dr. Subramaniam Swamy v. Ramakrishna Hegde, (1990) 1 SCC 4 An application under Section 25 sought the transfer of a suit from a court in one State to another, and the Supreme Court used the occasion to explain the scope of the section as recast in 1976. The Court held that the sole criterion under Section 25 is whether the order is expedient for the ends of justice; the convenience of parties and witnesses, the questions of law involved and the interest of justice as a whole are to be weighed, and the paramount consideration is that the transfer should further, not defeat, justice. A transfer will not be ordered merely because one party finds the forum inconvenient, and the apprehension of not getting justice must rest on reasonable grounds. Rule: the leading modern statement on Section 25, fixing expediency for the ends of justice as the single test and cautioning against transfers on light grounds. |
6. Procedure and Practical Points
i. Notice and hearing. Sections 22, 24 and 25 all contemplate notice to the other parties and an opportunity to be heard, except where the court acts suo motu under Section 24.
ii. Stage of the application. Section 22 must be invoked at the earliest opportunity and at or before the settlement of issues; Sections 24 and 25 may be invoked at any stage.
iii. Interim orders. Pending disposal of a transfer application, the superior court may stay the proceedings in the transferor court, and often does so in Section 25 applications.
iv. Effect on evidence. After transfer under Section 24 or Section 25, the transferee court may retry the matter or continue from the stage reached, which prevents the waste of recorded evidence.
v. Order under Section 24 is not appealable as a decree, being an order not listed in Order XLIII Rule 1; the remedy against it lies, where available, in revision under Section 115 or under Article 227.
7. Landmark Judgments on Transfer of Suits
- Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167. A fair trial is the first imperative; a reasonable apprehension founded on material, not a vague one, justifies transfer.
- Dr. Subramaniam Swamy v. Ramakrishna Hegde, (1990) 1 SCC 4. Expediency for the ends of justice is the sole test under Section 25; convenience, questions of law and the overall interests of justice are weighed.
- Durgesh Sharma v. Jayshree, (2008) 9 SCC 648. A High Court cannot transfer a case from a court in its State to a court in another State; that power belongs to the Supreme Court alone under Section 25.
- Kulwinder Kaur v. Kandi Friends Education Trust, (2008) 3 SCC 659. The grounds for transfer under Section 24 are not exhaustive; balance of convenience, the interests of justice and a reasonable apprehension of an unfair trial are among the relevant considerations.
8. Frequently Asked Questions on Transfer of Suits
When can a defendant apply for transfer under Section 22 CPC?
Where the suit could have been instituted in two or more courts and has been instituted in one of them. Only a defendant may apply, after notice to the other parties, at the earliest possible opportunity, and where issues are settled, at or before their settlement.
What is the scope of Section 24 of the CPC?
The High Court or District Court may, on the application of any party or of its own motion, at any stage, transfer any suit, appeal or proceeding to a subordinate competent court, or withdraw it and try it itself, transfer it elsewhere or retransfer it. The transferee court may retry the matter or proceed from the stage reached.
Can a High Court transfer a case to a court in another State?
No. A High Court's power under Section 24 extends to courts subordinate to it within its own State. Inter-State transfer is exclusively the Supreme Court's power under Section 25, as confirmed in Durgesh Sharma v. Jayshree.
What is the test for transfer under Section 25 CPC?
Whether the order is expedient for the ends of justice. The application must be by motion supported by affidavit, made by a party, and compensatory costs may follow a frivolous or vexatious application. The transferee court applies the law that the transferor court would have applied.
On what grounds can a civil suit be transferred?
A reasonable apprehension of bias or an unfair trial, the balance of convenience of parties and witnesses, the pendency of connected suits raising common questions, the avoidance of multiplicity and conflicting decrees, and circumstances making a fair trial impracticable in the chosen forum.
Is apprehension of bias by itself enough for a transfer?
No. The apprehension must be reasonable and supported by material showing that a fair trial is in real jeopardy. Mere dissatisfaction with the judge, adverse interlocutory orders, or the inconvenience of counsel will not do, as Maneka Sanjay Gandhi holds.
What is the difference between Section 24 and Section 25 CPC?
Section 24 is an intra-State power of the High Court and District Court, exercisable on application or suo motu at any stage, and includes withdrawal and retransfer. Section 25 is the Supreme Court's inter-State power, exercisable only on a party's application supported by affidavit, where expedient for the ends of justice.
9. Related Topics in This CPC Series
- Place of Suing: Sections 15 to 25 and the Proper Forum
- Institution of a Civil Suit: Section 26 and the Cause of Action
- Res Sub Judice: Stay of Suit under Section 10
- Jurisdiction of Civil Courts: Section 9, Types and Section 21