Smt. Kavita Nath vs Arun Kumar Bengali

N.K. Agrawal, J.—By way of this transfer petition, the petitioner seeks transfer of Civil Suit No. 55-A/09 pending before the Family Court, Durg, to Family Court, Sagar (Madhya Pradesh). Shri Alok Dewangan, learned counsel appearing for the respondent has raised a preliminary objection regarding maintainability of this petition before this court. He would submit that this court is devoid of the power to transfer a case pending in a court subordinate to it to a court subordinate to another High Court in view of specific provisions contained in Section 25 of the Code of Civil Procedure, 1908 (for short ''CPC''). He would further submit that Section 23(3) must be read subject to Section 25 of CPC.

On the other hand, Smt. Renu Kochar, learned counsel appearing for the petitioner would submit that u/s 23(3) of CPC this court has power to transfer a case to a court subordinate to different High Court. She would further submit that Section 23(3) and Section 25 of CPC should be harmoniously construed. If it was held that for transfer of a case, from a court subordinate to one High Court to a court subordinate to another High Court, only the Supreme Court could be approached. Section 23(3) of CPC would become nugatory.

I have heard the counsel appearing for the parties and perused the records of the case.

Section 23(3) of CPC provides that 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 court in which the suit is brought is situate. Section 23 of CPC merely provides forum and specifies the court in which an application for transfer may be made. Section 23 is not a substantive.

Provision vesting power in a particular court to order transfer, whereas Section 25 deals with power of transfer. Section 25 of CPC is a self contained code and comprises substantive as well as procedural law on the point it allows a party to move the court by making an application and also empowers the court to make an order of transfer.

The Supreme Court in case of Durgesh Sharma v. Jayshree, by settling down the legal proposition on this point, held that court appropriate to be approached for and competent to transfer a case pending in a court subordinate to one High Court to a court subordinate to another High Court is the Supreme Court and not High Court. The Supreme Court further observed in para 50 to 55 of the same judgment as under: "50. The matter can be examined from another angle also. Every court has its own local or territorial limits beyond which it cannot exercise the jurisdiction. So far as this Court is concerned, its jurisdiction is not circumscribed by any territorial limitation and it extends over any person or authority within the territory of India. But, it has no jurisdiction outside the country. So far as a High Court is concerned, its jurisdiction is limited to territory within which it exercises jurisdiction and not beyond it. On that analogy also, a High Court cannot pass an order transferring a case pending in a court subordinate to it to a court subordinate to another High Court. It would be inconsistent with the limitation as to territorial jurisdiction of the Court. 51. This can be compared with exercise of extraordinary jurisdiction by a writ court under Article 32 or 226 of the Constitution. It is well settled that this Court can exercise power by issuing writs, directions or orders to every authority within the territory of India (as also those functioning outside the country provided such authorities are under the control of the Government of India). But the jurisdiction of a High Court has territorial limitations. It can exercise the power "throughout the territories in relation to which it exercises the jurisdiction", that is to say. The writs issued by a High Court cannot run beyond the territory subject to its jurisdiction and the person or authority to whom the High Court is empowered to issue such writs must be within those territories which clearly implies that they must be amenable to its jurisdiction in accordance with law. 52. The counsel for the respondent wife submitted that provisions of Sections 23(3) and 25 of the Code should be harmoniously construed. Referring to Priyavari Mehta and Lakshmi Nagdev it was submitted that Section 23(3) of the Code did not stand deleted or superseded by Section 25 of the Code. If it is held that for transfer of a case, appeal or other proceeding from a court subordinate to one High Court to a court subordinate to another High Court. Only this Court can be approached. Section 23(3) of the Code will become nugatory, redundant and futile. No court of law will interpret one provision of law which will make another provision superfluous or ineffective. It was, therefore, submitted that it has been rightly held that the parties must be left "to choose the forum" either u/s 23(3) or 25 of the Code, 53. 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 Section 23 of the Code is a substantive provision which authorises 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, Section 25 of the Code is a complete code dealing with substantive as well as procedural law. Section 23, in our opinion, therefore, cannot be interpreted in the manner suggested by the learned counsel appearing for the wife. 54. After the commencement of the Constitution and establishment of the Supreme Court (this Court), Parliament thought it proper to amend Section 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. 55. It is no doubt true that even when Section 25 in the present form was substituted by the Amendment Act of 1976. Sub-section (3) of Section 23 of the Code has neither been deleted nor amended. That, however, is not relevant. Since in our considered view Section 23 is merely a procedural provision, no order of transfer can be made under the said provision. If the case is covered by Section 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-section (3) of Section 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. Section 23, therefore, in our considered view, must be read subject to Section 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 1-1-1977 in view of Section 25 of the Code as amended by the CPC (Amendment) Act. 1976. In view of above settled position of law, in the considered opinion of this court, the instant petition is not maintainable. The same deserves to be and is hereby dismissed. However, the petitioner is free to pursue her remedy in the Supreme Court. No order as to costs.