(4) In dismissing any application under this section, the Supreme Court, may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.
History and Scope of Section 25:
Section 25, as it originally stood, empowered the State Government to transfer a suit, appeal or other proceeding pending in a High Court presided over by a single Judge to any other High Court with the consent of the State Government of that Court.
The old section has, however, been substituted by the new section which confers the power of transfer a suits, etc. from a High Court or civil court in one State to another High Court or other civil court in any other State. The Supreme Court has similar power of transfer as it has in regard to criminal cases under section 406 of the Code of Criminal Procedure, 1973.
There is then the power of the Supreme Court to transfer suits, which is provided in section 25 of the Code. On the application of a party to the hearing of a suit, appeal or other proceeding pending in a High Court or civil court in one State and after notice to the parties, and after hearing them, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct transfer of such suit, appeal or other proceeding to another High Court or other civil court in another State.
Moulding the Relief in lieu of Transfer:
The suit was transferred for joint trial with other suit but other suit was decreed and appeal against decree was pending. In these circumstances the Supreme Court on application for retransfer of transferred suit directed the trial court to frame issues and record evidence on day to day basis and transmit the record to appellate court for disposal along with the pending appeal. This was done to “avoid the conflicting decisions.
Transfer in Family Matters—avoidance of conflicting decisions:
The Supreme Court’s power to transfer suits is not curtailed or excluded by sections 21 and 21-A of the Hindu Marriage Act. It can transfer suit for judicial separation by the wife and that by the husband for restitution of conjugal rights filed in two different States to have joint or consolidated hearing or trial of both the petitions by one and the same Court in order to avoid conflicting decisions being rendered by two different Courts.
The plaintiff has the right to choose his own forum and burden lies on the applicant to make out a strong case for transfer. A mere balance of convenience in favour of proceedings in another court may be a relevant consideration but will not be a sufficient ground for transfer.
As a general rule the court should not interfere unless the expenses and difficulties of the trial would be so great as to lead to injustice or the suit has been filed in a particular court for the purpose of working injustice. Another valid ground for transfer is the abuse of the process of the court.
Wife sought transfer of divorce petition from Bombay to Delhi. Both the parties had agreed that their marriage be dissolved by mutual consent. The case was transferred.
Wife filed petition for maintenance allowance under S. 125, Criminal Procedure Code at Agra and husband filed divorce petition before family court at Agra under S. 13 of Hindu Marriage Act. Wife sought transfer of Hindu marriage petition from family court Agra to Delhi. No objections were filed against transfer petition. Supreme Court directed divorce petition to be transferred to Delhi.
Husband filed petition of divorce in the court of District Judge, Delhi against the wife with a child of 2V2 years staying at Varanasi. Supreme Court withdrew case from Delhi court and transferred it to Varanasi Court.
Participative Role of Courts—Family Matters Sensitive:
In considering transfer matter before Family Court it is taken note of that family matters are sensitive and family court Judges have to play greater participative role. This objective can be achieved only if rapport between Judges and parties is established.
Transfer of cause before Family Court was sought on unfounded allegations against Presiding Judge and baseless apprehension that petitioner will not get justice, still Supreme Court left option to transfer case by the concerned Judge of the Family Court.
Transfer of suit—Identity of cause of action:
Where there was contract for supply of jute bag between plaintiff company and defendant company. Goods supplied were found to be defective and, therefore, returned. Suit was filed by both companies against each other for recovery of amount before different Courts. Cause of action was alleged in two plaints referred to the same period and transaction. Issues arising were common.
Almost same set of oral and documentary evidence was required to be adduced. Hence, possibility of conflicting decrees were not ruled out. As such, suit instituted at later point of time was directed to be transferred to the Court where earlier suit had been filed.
Transfer of case on consideration of “expediency for ends of justice”:
Only consideration which was relevant was “expediency for ends of justice”. Court would also have regard to and respect for rule enacted in Section 10. But departure from Section 10 could be made by Supreme Court in appropriate cases.
Where there was sale of “Heart Lung Machine” to plaintiff-hospital, but performance of such machine was not found to be satisfactory. Plaintiff had filed suit in Nasik against dealer for recovery of amount.
Dealer had also filed suit in Delhi against plaintiff for recovery of outstanding amount by way of balance price of machinery and interest there on. Held, that, as both suits had arisen out of same transaction but suit at Nasik was instituted first in point of time, hence, Supreme Court while following ordinary rule had transferred suit at Delhi to the Court at Nasik.
Powers of Courts to transfer suit:
Merely because the plea under Section 10 of the C.P.C. had been rejected. Supreme Court was not denuded of the exercise of power to transfer the suit if the ends of justice called for exercise of such power.
Essentials of a suit:
The essentials of a suit are four in number. They are as under:
1. The opposing parties:
In every suit there must be at least one plaintiff and one defendant. There may be more than one plaintiff and more than one defendant where an act or transaction proceeds from two or more persons or it affects two or more persons.
2. The cause of action:
Every suit must contain the cause of action. The term “cause of action” refers to the cause or the set of circumstances which leads up to a suit. It consists of every fact which is necessary to be proved to entitle the plaintiff to a decree. The term has been discussed in the preceding pages.
3. The subject-matter:
It is the right or property claimed in the suit. The court adjudicates upon the right of the parties with regard to the subject-matter in dispute.
4. The relief claimed:
The relief claimed should be stated specifically in the plaint. It may be stated in the alternative also. The relief claimed must be one which the court is able to grant. When a person is entitled to more than one relief in respect of the same cause of action, he must sue for all the reliefs.
He, however, may sue for one or more of them and reserve his right with the leave of the court to sue for the rest. If no such leave is obtained he will be precluded from afterwards suing for any relief so omitted.
Different Stages of a Suit:
Suit to be commenced by plaint:
(1) Every suit shall be instituted by presenting a [plaint in duplicate to the Court] or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable. [(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).] (Order IV Rule 1).
[(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:
Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim:
Provided further that where the defendant fails to file the written statement within the staid period of thirty days, he shall be allowed to file the same on such other day as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.]
(2) A defendant to whom a summons has been issued under sub-rule (1) may appear
(a) In person, or
(b) By a pleader duly instructed and able to answer all material questions relating to the suit, or
(c) By a pleader accompanied by some person able to answer all such questions.
(3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court. (Order V Rule 1).
Copy of plaint annexed to summons:
Every summons shall be accompanied by a copy of the plaint.] (Order V Rule 2],
Service of Summons:
[Delivery of Summons by Court:
(1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court.
(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him in such manner as the Court may direct.
(3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgement due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court:
Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.
(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the service of summons on the defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgement due), the provisions of rule 21 shall not apply.
(5) When an acknowledgement or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent has refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant :
Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1). (Order V Rule 9).
Summons given to the plaintiff for service:
(1) The Court may, in addition to the service of summons under rule 9, on the application of the plaintiff for the issue of a summons for the appearance of the defendant, permit such plaintiff to effect service of such summons on such defendant and shall, in such a case, deliver the summons to such plaintiff for service.
(2) The service of such summons shall be effected by or on behalf of such plaintiff by delivering or tendering to the defendant personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court by such mode of service as is referred to in sub-rule (3) of rule 9.
(3) The provisions of rules 16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.
(4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgement of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant. (Order V Rule 9-A).
After the summons has been served on the defendant, the defendant shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defence dealing with each allegation in the plaint and stating with respect to each allegation whether the same is admitted or denied. (Order VIII, Rule 1).
Every party to a suit is entitled to know the nature of his opponent’s case, so that he may know beforehand what case he has to meet. He is also entitled to obtain admissions from his opponent to facilitate the proof of his own case. This is termed as discovery, which may be by administering interrogatories to the opponent or by requiring him to disclose the documents by affidavit. (Order XI).
First Hearing and Striking of Issues:
On the day fixed in the summons for the defendant to appear and answer, the suit is heard if both the parties are present, unless the court adjourns it to a later date. (Order IX, Rule 1).
If neither party appears when the suit is called on for hearing, the court may dismiss the suit. If the plaintiff appears and the defendant does not appear, the plaintiff will be required to prove the service of summons on the defendant and on such proof of service an ex parte decree may be passed on the plaintiff’s proving his case. Where the defendant appears and the plaintiff does not appear, the court may dismiss the suit, unless the defendant admits the claim. (Order IX, Rules 3, 6 and 8).
At the first hearing of the case when both the parties are present the court goes through the plaint, the written statement and answers to interrogatories, if any, and then examines the parties and records their admissions and denials.
Only the substance of such examination forms part of the record and is not evidence in the suit. The object of such examination is to ascertain from the party or his pleader which material facts in the pleading of either party are admitted or denied by the other. On such ascertainment the court strikes issues which have to be determined to dispose of the case.
If it is found that the parties are not at issue on any question of law or fact, the court delivers the judgment. (Order XV, Rule 1).
Production of evidence and argument:
If, however, the parties are at issue, as is generally the case, a date is fixed for hearing when the party having the right to begin states his case and produces his evidence in support of the issues. Then the other party states his case, produces his evidence and addresses the court on the whole case. (Order XVIII).
After the case has been heard the court may pronounce judgment at once or it may reserve its judgment and deliver the same on any future date. (Order XX).
After the judgment is pronounced the successful party applies to the court for the drawing up of the decree, which is drawn up by an officer of the Court. (Order XX).
Execution is the final stage of the suit. It is the means employed in the process of law to make a decree or order of a court effective. The successful party makes an application in writing to the executing court when proceedings in execution are commenced. (Order XXI).