Supreme Court: The bench of Hrishikesh Roy and Dipankar Datta*, JJ has explained the true import of Section 25 of the Civil Procedure Code, 1908 [‘CPC’] and has held that the same 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 the Constitution and not to a transfer where both States have a common High Court under Article 231 thereof. Whereas, Section 24 of the CPC applies for inter-State transfer of a suit, appeal or other proceeding, if it is the common High Court for two or more States under Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it.
In the case at hand, a suit for declaration of right, title and interest as well as for perpetual injunction and damages was instituted before the District Judge at Dimapur, Nagaland sometime in 2007. However, pleading that it was 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. The Gauhati High Court, which presently happens to be the common High Court for the States of Assam, Nagaland, Mizoram and Arunachal Pradesh, rejected the application for transfer by a judgment and order dated 10-12-2015.
When the Said order was challenged before the Supreme Court, the issue relating to the scope and ambit of section 24 vis-à-vis section 25 of the CPC arose in view of the peculiar circumstances wherein two States share a common High Court as provided under Article 231 of the Constitution of India.
Narrow Interpretation of Section 25 CPC will be against “real” access to justice
Observing that an approach to construe Section 25 of the CPC has to be fair, pragmatic, reasonable and realistic, the Court stated,
“A narrow interpretation of section 25 imposing a bar for entertainment of an application under section 24 for transfer of a suit, appeal or other proceeding by a common High Court like the Gauhati High Court inter-se the four States in relation to which it exercises jurisdiction could place a heavy burden and might pose an insurmountable obstacle for litigants of the far-flung areas of the North-East, if they were made to approach this Court for such transfer on the specious ground that the Civil Court to which the same is proposed to be transferred is in a State other than the State in which the suit has been instituted.”
Why was Section 25 CPC amended?
The Court highlighted that with the amendment of Section 25 CPC, a serious impediment in administration of justice by the courts of law was remedied by conferment of power on the Supreme Court to decide on inter-State transfer of any suit, appeal or other proceeding pending in a Civil Court of one State to a Civil Court of another State. Since under the pre-amended Section 25 CPC, such a transfer could be made by the transferor State only if the transferee State were to consent to it, it was rightly observed that it was not the function of the States to decide on such transfer.
Section 24 CPC’s General Power versus Section 25 CPC’s Special Power
The Court explained that while section 24 CPC is part of the general law and Section 25 CPC is the special law, Section 24(1)(b) CPC opens up an avenue for the High Court, upon reaching a satisfaction that a case for transfer has been made out, to withdraw any suit, appeal or other proceeding pending in any court subordinate to it and (i) to try and dispose of the same; or (ii) to transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) to retransfer the same for trial or disposal to the court from which it is withdrawn; whereas, Section 25 CPC empowers the Supreme Court on a satisfaction being recorded that an order is expedient for the ends of justice to direct that any suit, appeal or other proceeding be transferred (i) from one High Court to a High Court; and (ii) from other Civil Court in one State to other Civil Court in any other State.
What is important to attract Section 25 CPCis the involvement of two civil courts (transferor and transferee) in the proceedings for transfer, which are not only situate in two different States, but are also subject to the power of judicial superintendence and administrative control of the High Courts of each such State.
Section 25 CPC whether a bar on application under Section 24 CPC in case of common High Courts?
Going through various authorities, the Court made clear that Section 25 CPC does not bar entertainment of an application under Section 24 CPC thereof by a High Court, even for an inter-State transfer, if such High Court is the common High Court for two or more States and transfer, as prayed, is not to a civil court beyond the said High Court’s jurisdiction.
In the case at hand a civil suit was instituted before the District Court, Dimapur, Nagaland and transfer was sought to the District Court, Guwahati, Assam. In such circumstances the Court observed that, such a transfer, if allowed, no doubt would constitute an inter-State transfer and that a plain and literal reading of section 25 of the CPC does suggest that the power to so transfer lies with the Supreme Court only.
On the conflict or inconsistency between the two provisions, the Court explained that though special, invocation of the jurisdiction of the High Court under Section 24 CPC may not come in conflict and defeat Section 25 CPC, if jurisdiction is still found available to be exercised in a given case under the former without doing violence to the latter.
The Court observed that,
“Section 25 of the CPC “notwithstanding the scheme envisaged in it” does not operate as a complete bar to denude a common High Court, like the Gauhati High Court, to entertain an application under Section 24 CPC thereof even for an order to transfer a suit, appeal or other proceeding from one State to another State, provided the States concerned are two of the four States in relation to which such High Court still exercises jurisdiction.”
Special Status of Common High Courts
The courts and tribunals in the States of Assam, Nagaland, Mizoram and Arunachal Pradesh are not only under the superintendence of the Gauhati High Court in terms of Article 227, all district courts and courts subordinate thereto in such States are subject to the control of the Gauhati High Court under Article 235 as well as subordinate to the same High Court in terms of section 3 of the CPC. Section 25 has been inserted in the CPC with a definite purpose of ensuring that no High Court transfers a suit, appeal or other proceeding pending in a Civil Court in one State to a Civil Court in another State. The reason for this is that the High Court to which the application for transfer is made does have the power in law to transfer a suit, appeal or other proceeding to a Civil Court subordinate to it but it does not have any power in law to transfer any of the above to a Civil Court which is subordinate to another High Court.
While focusing on section 25, one cannot be completely oblivious of the terms of section 24(1)(b)(ii). In such circumstances, the High Court enjoys a supreme power which is not even subject to the power of the Supreme Court under section 25. The only caveat is that this power of transfer under section 24(1)(a) and 24(1)(b)(ii), however, cannot be exercised by the Gauhati High Court, say for transfer of a civil suit from a court in Assam or Nagaland to a Civil Court in Tripura or Manipur or Meghalaya because the said States, from 2012, are no longer part of the Gauhati High Court and are since having High Courts of their own.
The Court stressed that,
“A High Court, howsoever big or small, old or new, is as much a Constitutional Court as this Court is and enjoys wide ranging powers vested in it by law. No doubt, the power under section 25 is a special power, but the common High Courts of the country ought not to read section 24 of the CPC in a manner as if the power of the Supreme Court under section 25 to order an inter-State transfer is available to be exclusively exercised by it in all cases of inter-State transfer, thereby denuding the common High Courts of the country of their jurisdiction by mere reference to involvement of an inter-State transfer and without anything more being looked at.”
Hence, having regard to the special nature of jurisdiction that is vested in a common High Court like the Gauhati High Court, the Court held that Section 25 does not in all cases fetter the power of a common High Court to order inter-State transfer of a suit, appeal or other proceeding.
[Shah Newaz Khan v. State of Nagaland, 2023 SCC OnLine SC 203, decided on 28-02-2023]
*Judgment Authored by Justice Dipankar Datta
Advocates who appeared in this case :
For Appellant(s): Senior Advocate Parthiv K. Goswami, Advocates Diksha Rai, Ragini Pandey, Atiga Singh;
For Respondent(s): Senior Advocate K N Balgopal, Advocates K. Enatoli Sema, Limayinla Jamir, Amit Kumar Singh, Chubalemla Chang, Prang Newmai, Vivek Narayan Sharma, Mahima Bhardwaj, Laksha Bhavnani, Pranshu Kausha, Shubham Awasthi, Rajeev Kumar Jha, Ram Kumar.