The Supreme Court opined that Section 25 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) does not impose a complete bar to denude a common High Court like Gauhati High Court to entertain applications under Section 24 for interstate transfers.
It was clarified that the High Court cannot transfer the suit to such a civil court which is subordinate to a different High Court. In that case, the power vests only with the Supreme Court. This is because the High Court to whom an application is made does not enjoy the power of superintendence under Article 227 over the Civil Court to which transfer has to be made.
It was held that for section 24(1)(a), the power for interstate transfer vests with the High Court only if the Civil Court is subordinate to it under Article 227 read with Article 235 and under Section 3 of the CPC. It was expounded that such power is supreme and vests with the High Court without being subject to the power of the Supreme Court under Section 25. The only caveat is that this power cannot be exercised if the transfer is to be made to a civil court of such a State where the High Court does not have jurisdiction or judicial superintendence. Simply put, Section 25 bars interstate transfer by the High Court only when the States have their own High Court, the bar does not operate when the States have a common High Court.
Brief Facts:
The issue in the present case was whether the Supreme Court is the sole repository of power as per Section 25 of the CPC to direct transfer of suit/appeal etc. from 1 civil court in 1 state to another or can even the common High Court of 2 or more states can entertain an application for transfer under Section 24 of the CPC from 1 civil court to another (when both civil courts are subordinate to High Court but situated in different states).
Brief Background:
The Appellants preferred a suit for declaration of rights, titles, and interests in the Court of District Judge at Dimapur, Nagaland. However, due to the hostility of the Defendants, the suit was dismissed and restored on 3 different occasions. Therefore, an application was preferred by the Appellants under Section 24 of the CPC before the Gauhati High Court for the transfer of the suit to the District Judge at Gauhati, Assam.
The application was rejected by the Gauhati High Court (common High Court for Assam, Nagaland, Mizoram, and Arunachal Pradesh).
Hence, the present appeal has been preferred seeking transfer under Section 25 of the CPC.
Contentions of the Appellant:
It was argued that the emphasis in Section 24 of CPC is on the words “court subordinate to it.” Further, as per Article 231 of the Constitution, there can be common High Courts for 2 or more states. Hence, the High Court has the power to direct inter-state transfer of proceedings if both transferor and transferee courts are subordinate to it and fall under the territorial jurisdiction of that High Court.
It was submitted that Sections 24 and 25 have to be harmoniously read to mean that Section 25 applies when the 2 states have different High Courts.
Contentions of the Respondent No. 1, 2, and 3:
It was argued that only Section 25 of the CPC provides for the transfer of a case from a Civil Court in 1 State to a Civil Court in another State.
Contentions of the Respondent No. 4 and 5:
It was contended that the power to transfer inter-state is expressly only provided to the Supreme Court. Further, it was submitted that the power under Section 24 is only in continuation of Sections 22 and 23. Section 24 explains how powers provided under Sections 22 and 23 can be used. There is no connection with Section 25 whatsoever.
Observations of the Court:
The Top Court analyzed the relevant Articles of the Constitution of India. It moved on to trace the origin of a common High Court i.e., Gauhati High Court. It was noted that till a little over a decade back, the Gauhati High Court was a common High Court for all the 7 sister states. In 2012, separate High Courts were established for Meghalaya, Manipur, and Tripura.
It was noted that all the civil courts in Assam, Nagaland, Mizoram, and Arunachal Pradesh are subordinate to a common Gauhati High Court in terms of Article 231 of the Constitution.
Further, it was noted that pre-amended Section 25 did not allow for interstate transfers. It was left to an administrative act and only with the agreement of the State Governments. However, after amendment, the said power vested with Court to decide inter-state transfers.
The Bench moved on to discuss judicial precedents which showed that a lot of High Courts agreed with the view that Section 25 does not bar application under Section 24 for interstate transfers.
The Court noted that a literal reading of Section 25 shows that such power to transfer interstate only lies with the Supreme Court. However, a general power was pointed out which is only given in Section 24 i.e., High Court can even suo moto transfer a case. This is absent in Section 25. Section 24 thus, stands to be a general law and Section 25 which provides for power only when an application is preferred by the parties is a special law.
It was opined that a general law cannot defeat special law to the extent to which they are in conflict. Homogenous reading should be done to remove the conflict.
The Apex Court concluded that Section 25 does not impose a complete bar to denude a common High Court like Gauhati High Court to entertain applications under Section 24 for interstate transfers.
The reasoning provided for this conclusion was first, that Gauhati High Court in terms of Article 227 is superior to all district courts in the States which are subject to the control of the Gauhati High Court. It was clarified that the High Court cannot transfer the suit to such a civil court which is subordinate to a different High Court. In that case, the power vests only with the Supreme Court. This is because the High Court to whom an application is made does not enjoy the power of superintendence under Article 227 over the Civil Court to which transfer has to be made.
For Section 25, the prerequisite is the involvement of 2 civil courts in 2 different states and subject to the power of judicial superintendence and administrative control of the High Courts of each state.
For section 24(1)(a), the power vests with the High Court only if the Civil Court is subordinate to it under Article 227 read with Article 235, and under Section 3 of the CPC. It was expounded that such power is supreme and vests with the High Court without being subject to the power of the Supreme Court under Section 25. The only caveat is that this power cannot be exercised if the transfer is to be made to a civil court of such a State where the High Court does not have jurisdiction or judicial superintendence.
The Apex Court opined that this special nature of jurisdiction in the case of Common High Courts must be given due regard and further, power cannot be truncated that is given under Section 24(1)(a), (b) which also includes suo moto power.
The Top Court further clarified that once the suit is adjudicated upon by the Gauhati High Court at its principal seat, it would be under the ordinary civil jurisdiction and the High Court would step into the role of the civil court from which the suit was withdrawn.
Simply put, Section 25 bars interstate transfer by the High Court only when the States have their own High Court, the bar does not operate when the States have a common High Court.
Lastly, the Bench remarked that the provisions have to be read in such a manner that the “access to justice” is strengthened and not flustered as a concept.
The decision of the Court:
Based on the reasons, the Supreme Court set aside the order and directed the Gauhati High Court to decide the Section 24 application on its own merits. Hence, the Section 25 application was rendered infructuous and accordingly dismissed.
Case Title: Shah Newaz Khan & Ors. V. State of Nagaland & Ors.
Coram: Hon’ble Mr. Justice Hrishikesh Roy, Hon’ble Mr. Justice Dipankar Datta
Case No: Civil Appeal No. 1497 of 2023 with Transfer Petition (C) No. 307/2016
Citation: 2023 Latest Caselaw 153 SC
Advocate for Appellant: Adv. Diksha Rai
Advocates for Respondents: Advs. K. Enatoli Sema, Vivek Narayan Sharma
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