Supreme Court settles the jurisdiction to transfer suits between High Courts: Durgesh Sharma vs. Jayshree (2008)

Introduction

Date of the Judgment: September 26, 2008

Judges: C.K. Thakker, J., D.K. Jain, J.

Can a High Court transfer cases from a court subordinate to it to another court subordinate to a different High Court? The Supreme Court addressed this question in Durgesh Sharma v. Jayshree, concerning the jurisdiction and authority to transfer legal proceedings between different High Courts. This case involves a matrimonial dispute where the husband sought a divorce, and the wife requested a transfer of the case to a court closer to her residence. The Supreme Court, in this judgment authored by Justice C.K. Thakker, clarified the extent of a High Court’s power to transfer suits to courts under the jurisdiction of another High Court.

Case Background

Durgesh Sharma (the husband) and Jayshree (the wife) were married on May 16, 1989, in Malegaon, Maharashtra. After the marriage, they resided in Ujjain, Madhya Pradesh.

The husband claimed that the wife was quarrelsome and threatened to consume poison if her wishes were not met. He alleged she left their matrimonial home in 1991 and subsequently gave birth to twins on December 25, 1991, while staying with her parents.

In 1997, the wife returned to Ujjain but allegedly left again after 3-4 months, permanently deserting the husband without a valid reason.

On September 22, 2004, the husband sent a notice to the wife asking her to return. The wife responded on October 8, 2004, with allegations against the husband, indicating she was unwilling to stay with him.

Due to the wife’s failure to return, the husband filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955, on October 27, 2004, in the Family Court at Ujjain. The petition cited desertion and cruelty as grounds for divorce.

The wife contested these claims in her written statement, denying the allegations and stating that the husband had not provided maintenance for her and their children. She also claimed that the Ujjain court lacked jurisdiction, as she resided in Malegaon, Maharashtra, approximately 400 km from Ujjain, and her elderly parents needed her support.

The wife also initiated proceedings for maintenance under Section 125 of the Code of Criminal Procedure, 1973, in Malegaon, and under Section 24 of the Hindu Marriage Act in Ujjain.

On March 23, 2005, the wife filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in the Court of Civil Judge, Senior Division, Malegaon.

Subsequently, she applied under Section 23 of the Code of Civil Procedure, 1908, in the High Court of Madhya Pradesh (Indore Bench) to transfer the husband’s divorce case from the Family Court at Ujjain to a competent court in Malegaon, Maharashtra.

Timeline

Course of Proceedings

The High Court of Madhya Pradesh, Indore Bench, through an order dated January 25, 2007, allowed the wife’s application and directed the transfer of HMA 164A of 2004 from the Family Court, Ujjain, to a competent court at Malegaon through the District Judge, Nasik. This order was challenged by the husband in the Supreme Court.

Legal Framework

The legal framework relevant to this case includes:

• Section 13 of the Hindu Marriage Act, 1955: Deals with divorce. The husband filed a petition under this section seeking dissolution of marriage on the grounds of desertion and cruelty.
• Section 9 of the Hindu Marriage Act, 1955: Addresses restitution of conjugal rights. The wife filed an application under this section seeking to restore her marital relationship with the husband.
• Section 125 of the Code of Criminal Procedure, 1973: Pertains to maintenance. The wife initiated proceedings under this section seeking maintenance from her husband.
• Section 22 of the Code of Civil Procedure, 1908: Provides that where a suit may be instituted in one of two or more courts, the defendant may apply to have the suit transferred to another court.
• Section 23 of the Code of Civil Procedure, 1908: Specifies the court to which an application for transfer may be made. It states:
  
  “23. To what Court application lies.
  (1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.
  (2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.
  (3) Where such Courts are subordinate to different High Courts, the application shall be made the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.”
• Section 24 of the Code of Civil Procedure, 1908: Contains general powers of transfer and withdrawal of suits, appeals, or other proceedings at any stage, either on the application of a party or by the court’s own motion.
• Section 25 of the Code of Civil Procedure, 1908: Deals with the power of the Supreme Court to transfer suits, etc. It states:
  
  “25. Power of Supreme Court to transfer suits, etc
  (1) 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.”

Arguments

Arguments by the Appellant (Husband):

• The High Court erred in transferring a case from a court subordinate to it to a court subordinate to another High Court, as it lacks such power.
• The High Court of Madhya Pradesh could not transfer a case to a court subordinate to the High Court of Bombay.
• Even on the merits, no valid ground for the transfer was established by the wife.

Arguments by the Respondent (Wife):

• The High Court’s order aligns with the law, asserting that under sub-section (3) of Section 23 of the Code, the High Court can transfer a case if it deems appropriate.
• Traveling approximately 400 km alone would be difficult for the wife, justifying the High Court’s exercise of discretion.
• The Supreme Court should not interfere with the High Court’s order under Article 136 of the Constitution.

Issues Framed by the Supreme Court

The primary issue before the Supreme Court was:

1. Whether a High Court has the power, authority, and jurisdiction to transfer suits, appeals, or other proceedings from a court subordinate to it to another court subordinate to another High Court.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

1. Abu Bakar Abdul Rahiman & Co. v. Rambux, AIR 1916 Nagpur 31: The Court of Judicial Commissioner, Nagpur, held that it could not transfer a case to a court subordinate to another High Court.
2. Ram Kumar v. Tula Ram Nathu Ram, AIR 1920 Patna 138 (2): The Patna High Court disagreed with Abu Bakar, holding that such an order could be passed.
3. Dr. Rajnath v. L. Vidya Ram & Ors., AIR 1953 All 772: The Allahabad High Court observed that Section 23 of the Code is supplemental to Section 22, and Section 24 is a general provision empowering the High Court or the District Court to transfer a case.
4. Firm Kanhaiyalal v. Zumerlal, AIR 1940 Nag 145: The Nagpur High Court held that a High Court can transfer a suit pending in a court subordinate to that High Court to a court subordinate to another High Court, overruling Abu Bakar.
5. P. Salayandi Nadar & Ors. v. Venugopala Chetty & Ors., AIR 1960 Ker 91: The Kerala High Court held that a High Court has the power to transfer a suit pending in a court subordinate to it to a court subordinate to another High Court.
6. Western U.P. Electric Power Supply Company Ltd. v. Hind Lamps Ltd., (1969) 2 SCWR 16: The Supreme Court noted a concession by the appellant’s counsel that the High Court had jurisdiction to transfer the suit.
7. State Bank of India v. M/s Sakow Industries Faridabad (Pvt.) Ltd., New Delhi, AIR 1976 P&H 321: The Punjab & Haryana High Court ordered the transfer of a suit from Ballabhgarh Court to Alipore Court, observing that it could pass such an order under Section 23(3) read with Section 151 of the Code.
8. Priyavari Mehta v. Priyanath Mehta, AIR 1980 Bom 337: The Bombay High Court held that it had the power under sub-section (3) of Section 23 of the Code to transfer a suit, and that the amended Section 25 of the Code did not supersede this power.
9. Mamta Gupta v. Mukund Kumar Gupta, AIR 2000 AP 394: The Andhra Pradesh High Court held that both Sections 23(3) and 25 must be given effect, and the power to transfer a case by a High Court under sub-section (3) of Section 23 to a court subordinate to a different High Court must be conceded.
10. Lakshmi Nagdev v. Jitendra Kumar Nagdev, (2004) 4 MPLJ 310: The Madhya Pradesh High Court held that a transfer could be effected under Section 23(3) of the Code.
11. Guda Vijayalakshmi v. Guda Sekhara Sastry, (1981) 2 SCC 646: The Supreme Court held that a transfer petition under Section 25 of the Code would be maintainable irrespective of the provisions of Sections 21 and 21-A of the Hindu Marriage Act.

Judgment

The Supreme Court held that a High Court lacks the 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 under sub-section (3) of Section 23 of the Code of Civil Procedure. Only the Supreme Court can exercise this authority under Section 25 of the Code.

How each authority was viewed by the Court:

• Abu Bakar Abdul Rahiman & Co. v. Rambux, AIR 1916 Nagpur 31: Overruled. The Supreme Court explicitly overruled this case, which held that a High Court could not transfer a case to a court subordinate to another High Court.
• Guda Vijayalakshmi v. Guda Sekhara Sastry, (1981) 2 SCC 646: Discussed. The Court referred to this case to emphasize its wide powers of transfer under Section 25 of the Code.

The Court stated: “Section 23, in our opinion, therefore, cannot be interpreted in the manner suggested by the learned counsel appearing for the wife.”

The Court further added: “Even if such power was with a High Court earlier, it stood withdrawn with effect from January 01, 1977 in view of Section 25 of the Code as amended by Code of Civil Procedure (Amendment) Act, 1976.”

Finally, the Court concluded: “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.”

What weighed in the mind of the Court?

The Supreme Court’s decision in Durgesh Sharma v. Jayshree was primarily influenced by the interpretation of the procedural and substantive aspects of Sections 23 and 25 of the Code of Civil Procedure. The Court emphasized that Section 23 is merely a procedural provision that specifies the appropriate forum for making an application for transfer but does not, in itself, grant the power to transfer a case. The Court underscored that Section 25 is a self-contained code that exclusively empowers the Supreme Court to transfer cases from a High Court or civil court in one state to a High Court or civil court in another state. The legislative intent behind the amendment of Section 25 was to centralize the power of inter-High Court transfers with the Supreme Court, ensuring uniformity and preventing jurisdictional overreach by individual High Courts.

Fact:Law Ratio: The sentiment analysis of the Supreme Court’s decision reveals a strong emphasis on legal considerations over factual aspects. The ratio is approximately 20% Fact and 80% Law, indicating that the Court’s decision was predominantly driven by the interpretation and application of legal provisions rather than the specific factual circumstances of the case.

Logical Reasoning

Issue: Does a High Court have the power to transfer a case from a court subordinate to it to a court subordinate to another High Court?

Key Takeaways

• A High Court cannot transfer a case from a court subordinate to it to a court subordinate to another High Court.
• The power to transfer cases between High Courts rests solely with the Supreme Court under Section 25 of the Code of Civil Procedure.
• Litigants seeking transfer of cases between different High Courts must approach the Supreme Court for relief.

Development of Law

The ratio decidendi of this case is that Section 25 of the Code of Civil Procedure exclusively empowers the Supreme Court to transfer cases from a High Court or civil court in one state to a High Court or civil court in another state. This judgment clarifies and changes the previous legal position by overruling judgments that allowed High Courts to transfer cases to courts subordinate to other High Courts under Section 23(3) of the Code.

Conclusion

In Durgesh Sharma v. Jayshree, the Supreme Court definitively settled the issue of jurisdiction regarding the transfer of cases between High Courts. The Court held that only the Supreme Court, under Section 25 of the Code of Civil Procedure, has the authority to transfer cases from a High Court or civil court in one state to a High Court or civil court in another state. This ruling clarifies the scope of power of the High Courts, ensuring that litigants seeking such transfers must approach the Supreme Court for appropriate relief.