Keerthi B. Nair vs Rolland Andrade

Thomas P. Joseph, J.—The question urged for a decision in this proceeding is whether invoking sub- s.(3) of S. 23 r/w S. 22 of the CPC (for short, "the Code") it is within the power of a High Court transfer a case pending in a Court subordinate to it to a Court subordinate to another High Court or withdraw a case pending in a Court subordinate to another High Court to a Court subordinate to it ?. Placing reliance on the decision in Jency Vs. Biju Thomas, learned counsel for petitioner contends that it is permissible.

A resume of the facts of the case required to decide the question are : Petitioner/wife filed O.P.No. 952 of 2011 for restitution of conjugal rights and M.C. No. 269 of 2011 seeking maintenance from the respondent/husband in the Family Court, Nedumangad. Respondent filed O.P. No. 770 of 2011 for restitution of conjugal rights in the Family Court at L.B. Nagar, R.R. District, Andhra Pradesh which is subordinate to the High Court of Andhra Pradesh. Petitioner states that she received notice on 17.08.2011 in O.P.No. 770 of 2011 before which she had filed O.P. No. 952 of 2011 in the Family Court, Nedumangad. Hence, it is prayed that O.P. No. 770 of 2011 may be withdrawn from the Family Court, L.B. Nagar, R.R. District, Andhra Pradesh and transferred to the Family Court, Nedumangad.

In the decision relied by the learned counsel and referred supra, it is held that under sub-s.(3) of S. 23 of the Code an application for transfer is maintainable before a High Court even where the proposed transferee Court is subordinate to another High Court and that if the petition for divorce (in that case) could be filed either before the Family Court, Chennai or before the Family Court, Ernakulam, this Court in exercise of its power under sub- s.(3) of S. 23 of the Code could transfer the case from Family Court, Ernakulam to Family Court, Chennai provided the requirements of sub-s.(3) of S. 23 r/w S. 22 of the Code are satisfied. Learned Judge has placed reliance on the decisions (to hold so) in Ran: Kumar v. Tula Ram Nathu Ran: (AIR 1920 Pat 138), Firm Kanhaiyalai v. Zumerlal (AIR 1940 Nag.145), P. Sadayandi Nadar and Others Vs. Venugopala Chetty and Others, and the orders in C.M.C.No. 10 of 1996 and M.F.A.No. 1330 of 1996 of this Court.

Section 23 of the Code reads :

(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under S. 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 to the High Court within the local limits of whose jurisdiction the Courts in which the suit is brought is situate.

It is not disputed that the above said provision is subject to S. 22 of the Code which deals with the power to transfer suits which may be instituted in more than one Court. S. 24 of the Code deals with general power of the High Court and the District Court for transfer and withdrawal suits, appeals or other proceedings. The power tinder S. 24 of the Code is confined, so far as the High Court is concerned to the Courts subordinate to it and so far as the District Court is concerned to the Courts subordinate to it. S. 25 of the Code as substituted by Act 104 of 1976 deals with the power of the Supreme Court to transfer suits, appeal or other proceeding from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. S. 25 of the Code underwent drastic change by Act 104 of 1976 and it is by the said Act that the provision as now seen in S. 25 is incorporated. Ss. 22, 24 and 25 thus deals with the power for transfer and withdrawal of cases. S. 23 of the Code deals with the forum or machinery for making an application. It is not as if sub-s.(3) of S. 23 of the Code confers power on the High Court to transfer a case from a Court subordinate to it to a Court subordinate to another Court or, withdraw a case from a Court subordinate to another High Court to a Court subordinate to itself. S. 23 of the Code is not substantive provision, it is merely procedural and it only speaks about the forum and not the power. The power for transfer/withdrawal is conferred by S. 22, S. 24 or S. 25 of the Code. Sub-s.(3) of S. 23 is therefore subject to S. 25 of the Code.

I stated that so far as general power for the District Court and High Court is concerned, S. 24 governs the field, so faras the District Court is concerned, transfer and withdrawal is confined to and from Courts subordinate to it while, so far as the High Court is concerned it is confined to the Courts subordinate to it.

This question was specifically considered by the Supreme Court in Durgesh Sharma v. Jayshree Sharma 2008(4) R.C.R.(Civil) 574 SC : 2008(5) R.A.J. 619 SC : (2008 (4) KLT 169 (SC)). There, a benches of three Judges considered the effect of Ss. 22 to 25 of the Code and held that sub-s.(3) of S. 23 of the Code does not confer any power but only prescribes the forum or the machinery. That was a case where the appellant/husband had filed an original petition in the Family Court, Ujjain on 27.10.2004. Respondent/wife on her part filed a petition for restoration of conjugal rights in the Court at Malegaon. The wife filed a petition in the Indoor Bench of the Madhya Pradesh High Court under sub-s.(3) of S. 23 of the Code requesting to transfer the case from the Ujjain Court to the Court at Malegaon. The High Court invoking power under sub-s.(3) of S. 23 of the Code allowed the request. The husband challenged that order in appeal before the Supreme Court. Various arguments were advanced as to the power of the High Court to transfer a case pending in a Court subordinate to it to a Court subordinate to another Court or for withdrawal from such Court to a Court subordinate to itself. Reliance was placed on sub-s.(3) of S. 23 of the Code. In support of the contention that sub-s.(3) of S. 23 of the Code empowers the High Court to do so, reliance was placed on the decisions of various High Courts including Rain Kumarv. Tula Rani Nalhu Ram (supra), Firm Kanhaiyalal v. Zumerlal (supra) and P. Salayandi Nagar & Ors. v. Venugopala Chesty & Ors. (supra). So far as the decision in P. Salayandi Nagar & Ors. v. Venugopala Chesty & Ors. (supra) is concerned, the Supreme Court observed in paras.48 and 49 that in the said case P. Salayandi Nagar & Ors. v. Venugopala Chetty & Ors. (supra)) the High Court stated that competency of the petition (before the High Court) was not objected by the opposite party. In other words, the decision in P. Salayandi Nagar & Ors. v. Venugopala Chetty & Ors. (supra) proceeded on the assumption that the High Court had the power to transfer a suit pending in a Court subordinate to it to a Court subordinate to another High Court under sub-s.(3) of S. 23 of the Code. To be more precise the question whether sub-s.(3) of S. 23 of the Code conferred power or only prescribed the forum was not the subject matter of decision in P. Salayandi Nagar & Ors. v. Venugopala Chesty & Ors. (supra). The decisions in Rain Kumar v. Tula Ram Nathu Ram (supra), Finn Kanhaiyalal v. Zumerlal (supra) (relied on by the learned Judge in Jency v. Biju Thomas (supra)) were considered by the Supreme Court in paras.43 and 46 of the decision in Durgesh Sharma v. Jayshree Sharma (supra). Other decisions of other High Courts taking a similar view in view of sub-s.(3) of S. 23 of the Code were also considered by the Supreme Court. It was held that sub-s.(3) of S. 23 of the Code does not confer power on the High Court but only prescribed the forum and that the said provision should be read subject to S. 25 of the Code. Even if such power was with a High Court earlier, it stood withdrawn with effect from the date on which S. 25 of the Code was substituted by Act 104 of 1976. The Supreme Court also held that the decisions taking a contrary view do not lay down the correct law. In paragraph 76 the Supreme Court referred to the argument of the respondents that sub-s.(3) of S. 23 and S. 25 of the Code must be read harmoniously to avoid sub-s.(3) of S. 23 of the Code becoming nugatory, redundant and futile and held in para.77:

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 S. 23 of the Code is a substantive provision which authorizes 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. Moreover, S. 25 of the Code is a ''complete Code'' dealing with substantive as well as procedural law. S. 23, in our opinion, therefore, cannot be interpreted in the manner suggested by the learned counsel appearing for the wife". In paragraph 78 it is held:

After the commencement of the Constitution and establishment of the Supreme Court (this Court), Parliament thought it proper to amend S. 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. It is, no doubt, true that even when S. 25 in the present form was substituted by the Amendment Act of 1976, sub-s.(3) of S. 23 of the Code has neither been deleted nor amended. That, however, is not relevant. Since in our considered view, S. 23 is merely a procedural provision, no order of transfer can be made under the said provision. If the case is covered by S. 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-s.(3) of S. 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. S. 23, therefore, in our considered view, must be read subject to S. 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 from January 1. 1977 in view of S. 25 of the Code as amended by CPC (Amendment) Act. 1976.

It is also relevant to note from the above decision of the Supreme Court in paras. 71 to 74 that it has been held that in the matter of transfer/withdrawal of a case pending in a Court subordinate to one High Court to/from a Court subordinate to another Court, the power is vested only with the Supreme Court in view of S. 25 of the Code.

I may also point out that the decision in Durgesh Sharma v. Jayshree Sharma (supra) has been relied on by the Supreme Court in Nagar Industrial Enterprises ltd. v. Hong Kong & Shanghai Banking Corporation 2011(7) R.C.R. (Civil) 95 SC: 2009 (3) KLT SN 57 (CNo. 59) (SC). In the light of the above decisions of the Supreme Court, the contention that this Court has the power to withdraw a case pending in Family Court at L.B Nagar, R.R.District, Andhra Pradesh which is a Court subordinate to another High Court cannot be accepted. That power can be exercised only by the Supreme Court.

In view of S. 25 of the Code as substituted by Act 104 of 1976 the decisions relied on in Jency v. Biju Thomas (supra) have been declared as not good law. It follows that the decisions in Jency v. Biju Thomas (supra), C.M.C.No. 10 of 1996 and M.F.A.No. 1330 of 1996 do not lay down good law in view of the decision of the Supreme Court in Durgesh Sharma v. Jayshree Sharma and Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corporation (supra).

Petition fails. It is accordingly dismissed.