Gauhati High Court
Tr.P.(C)./6/2018 on 2 May, 2019
Author: A.S. Bopanna
Bench: A.S. Bopanna, Arup Kumar Goswami
GAHC010021782018
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
TR. PETITION (C) NO.6 OF 2018
Smti. Megha Jain,
Wife of Shri Kartik Jain,
Daughter of Shri Mahabir Jain,
Resident of 2nd Floor, Shiv Kunj, Aadarsh Nagar Colony,
Opposite Gauhati Goushala, Chatribari, Guwahati - 781008,
District - Kamrup (M), Assam.
........Petitioner
-Versus-
Shri Kartik Jain,
Son of Shri Sanjeev Jain,
Resident of Chanmari Ramhlun Road,
Aizawl, Mizoram - 796007.
Permanent Address: House No.A/51,
Care of Shri Sumermal Paharia,
Surya Nagar, Ghaziabad, UP - 201011.
........Respondent
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. A.S. BOPANNA
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
For the petitioner : Mr. A.K. Purkayastha, Advocate.
For respondent : Mr. Kartik Jain, Respondent in Person.
Date of hearing and Judgment & Order : 2nd May, 2019.
JUDGMENT & ORDER (ORAL)
(A.S. Bopanna, CJ) In Tr. Petition (C) No.6/2018, an issue had arisen with regard to the maintainability of the transfer petition before this Court, whereby transfer of MAT Tr. Petition (C) No.6/2018 Page 1 of 9 Case No.2170/2017 pending in the Court of the learned District Judge, Aizawl, State of Mizoram, wherein a matrimonial dispute was raised, was sought to the Court of the learned Principal Judge, Family Court, Kamrup (Metropolitan) at Guwahati. In that circumstance, an earlier judgment dated 13.10.2015 passed by a learned Single Judge of this Court in Transfer Petition (C) No.23/2015 (Smti. Pomi Sengupta -Vs- Biswajit Sengupta & Ors.) was cited, wherein it was held that the transfer petition filed under Section 24 of the CPC cannot be entertained when a case is sought to be transferred from a subordinate Court of one State to another State though the same High Court was exercising the jurisdiction.
2. In such circumstance, the learned Single Judge, who was confronted with the said issue in the instant case in Tr. Petition (C) No.6/2018 and since the learned Single Judge was unable to subscribe to the view taken in the case of Smti. Pomi Sengupta (supra) has referred the matter to a larger Bench by raising the following points of reference:-
―(a) Whether this Court has the jurisdiction to exercise powers under Section 24 CPC read with Section 23(1) and/or Section 23(2) CPC to transfer a suit, appeal or any other proceeding from one of the four States under its jurisdiction to any one other State under its jurisdiction for trial?
(b) Whether the ratio laid down in the case of Pomi Sengupta Vs. Biswajit Sengupta, (2015) 6 GLR 396 lays down the correct law by holding that this Court lacked jurisdiction under Section 24 to transfer suit, appeal or other proceeding from one State to another State, though under its jurisdiction?
(c) Any other point which may arise for consideration of the Hon'ble larger Bench while hearing the matter.‖
3. In order to consider the points referred, we have exhaustively heard Mr. A.K. Purkayastha, learned counsel representing the petitioner, who is seeking transfer of the case and Mr. K. Jain, the respondent, who has appeared in person. In that background, we have adverted to take note of the factual position in the Tr. Petition (C) No.6/2018 Page 2 of 9 background of the provisions as contained in the Civil Procedure Code as also the decisions referred to.
4. At the outset, it would be appropriate to take note of the provisions as contained in Sections 23, 24 & 25 of the Code of Civil Procedure, which reads as hereunder:-
―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 to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.
24. General power of transfer and withdrawal.-- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage--
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn Tr. Petition (C) No.6/2018 Page 3 of 9 (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of this section --
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) ‗proceeding' includes a proceeding for the execution of a decree or order.
(4) the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.
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.
(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.
(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 Tr. Petition (C) No.6/2018 Page 4 of 9 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.‖
5. In the present circumstance, the transfer petition filed is under Section 24 of the CPC before the learned Single Judge of this Court and as already taken note, the relief prayed therein was to transfer the MAT Case No.2170/2017 from the Court of the learned District Judge, Aizawl, State of Mizoram to the Court of the learned Principal Judge, Family Court, Kamrup (Metropolitan) at Guwahati. In the case of Smti. Pomi Sengupta (supra), which was relied upon by the respondent before the learned Single Judge, the view expressed was that the transfer would not be permissible and to arrive at such conclusion, the learned Single Judge had relied on the decision of the Hon'ble Supreme Court in the case of Durgesh Sharma -Vs- Jayashree Sharma, reported in (2008) 9 SCC 648. In the said decision, the Hon'ble Supreme Court had made reference to Section 23 of the CPC and in that light had held that the same only makes a provision for an appropriate forum while Section 25 of the CPC, which is a code by itself, provides for seeking transfer of the case from a subordinate Court in one State to a subordinate Court in another State and in such circumstance, it is only the Hon'ble Supreme Court, which can exercise jurisdiction.
6. It is to be taken note that the consideration, which had arisen in Durgesh Sharma (supra) was with regard to the transfer of a petition sought from a subordinate Court in the State of Madhya Pradesh to the subordinate Court in the State of Maharashtra. The undisputed position is that both the States concerned therein, namely, the State of Madhya Pradesh and the State of Maharashtra, have their separate High Court, which exercises jurisdiction over the subordinate Courts in the respective States. In such circumstance, the forum as provided under Section 23 of the CPC, even if taken note, a transfer petition could not have been filed Tr. Petition (C) No.6/2018 Page 5 of 9 under Section 24 of the CPC before the High Court but only under Section 25 of the CPC before the Hon'ble Supreme Court. In contra distinction to the said position, we are confronted with the situation, wherein the Gauhati High Court, as on today, exercises jurisdiction over the subordinate Courts in four states, namely, Assam, Nagaland, Mizoram and Arunachal Pradesh.
7. The issue presently is with regard to the transfer from the State of Mizoram to the State of Assam, which are both administered by the Gauhati High Court. It is in that circumstance, a consideration is required as to whether even in such circumstance, a petition under Section 25 of the CPC before the Hon'ble Supreme Court alone would lie. In that regard, a perusal of Section 25 of the CPC would indicate that it provides for filing of a petition before the Hon'ble Supreme Court if the proceeding is to 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. The provision would indicate that it pre-supposes the existence of a High Court in each of the States in respect of which such transfer petition relates to. To that effect, it would also be profitable to take note of the provisions as contained in Article 214 of the Constitution of India, which provides that there shall be a High Court for each State. However, in the present context, there is a common High Court for the States of Assam, Nagaland, Mizoram and Arunachal Pradesh and the States of Nagaland, Mizoram and Arunachal Pradesh do not have a separate High Court of their own. These three States have Permanent Benches with Principal Seat of the Gauahti High Court at Guwahati in Assam. For further clarity on this aspect, we find it appropriate to refer to the Notification No.G.S.R. 599(E) dated 22.06.1990, which is the Gauhati High Court (Establishment of a Permanent Bench at Aizawl) Order, 1990.
8. A perusal of the same indicates that His Excellency the President, after consultation with the Chief Justice of the Gauhati High Court and the Governor of Mizoram, has made the Order for establishment of the Permanent Bench at Aizawl. The same provides that the Permanent Bench of the Gauhati High Court at Aizawl and such Judges of the Gauhati High Court, being not less than two in number, as the Chief Justice of that High Court may, from time to time nominate, shall sit at Tr. Petition (C) No.6/2018 Page 6 of 9 Aizawl in order to exercise the jurisdiction and powers for the time being vested in the Gauhati High Court in respect of cases arising in the State of Mizoram. The proviso indicates that the Chief Justice of the High Court may, in his discretion, order that any case or class of cases arising in the State of Mizoram shall be heard at Gauhati.
9. The constitution of the High Court with its Principal Seat and the Permanent Benches in the manner, as taken note supra, would indicate that all the Courts in all the said four States are subordinate to the Gauhati High Court and since no separate High Courts are established in respect of Nagaland, Mizoram and Arunachal Pradesh, a provision under the Notification dated 22.06.1990 is made for the establishment of the Permanent Bench at Aizawl. Similar Notifications had been issued in respect of other two States. These aspects would leave no room for doubt that the Gauhati High Court can exercise its power and jurisdiction over all Courts in all the four States. If in that light, the provision as contained in Section 24 of the CPC, extracted above, is taken note, Sub-Section (1)(a) would indicate that the High Court or the District Court may, at any stage, transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same. If the said provision is kept in view and the above noted discussion relating to the establishment of the High Court and the Permanent Bench is taken note and in that circumstance, when the subordinate Court in the State of Mizoram as also the subordinate Court in the State of Assam is subordinate to the Gauhati High Court, a transfer petition filed under Section 24 of the CPC before this Court, namely, the Gauhati High Court, even for transfer of a case from the subordinate Court in any of the four States, as indicated above, to the other State would be maintainable from the very provision as contained in Section 24 itself. In such circumstance, the question of filing a petition under Section 25 of the CPC would not arise since there are no separate High Courts exercising jurisdiction over the States referred to above. If in that background, the observation, as contained in Smti. Pomi Sengupta (supra) is taken note, the learned Single Judge was not justified in arriving at the conclusion that if a petition Tr. Petition (C) No.6/2018 Page 7 of 9 under Section 24 of the CPC is entertained, it would amount to adding words to the provision.
10. In our opinion, as discussed above, the very provision as contained in Section 24 makes a provision for entertaining a petition in the present circumstance. If in that background, a further reference is made to the case of Durgesh Sharma (supra), to which reference is made in the case of Smti. Pomi Sengupta (supra), the said position, as taken note by us, is evident in the observations as contained in Paragraph 47 thereof, which reads as hereunder:-
―47. In our considered opinion, where several Courts having jurisdiction are subordinate to one appellate Court, an application for transfer may be made to such appellate Court and the Court may transfer a case from one Court subordinate to it to another Court subordinate to it. Likewise, where such Courts are subordinate to the same High Court, an application may be made and action may be taken by the High Court transferring a case from one Court subordinate to it to any other Court subordinate to that High Court. But where such Courts are subordinate to different High Courts, it is only the Supreme Court (this Court) which may pass an order of transfer. In other words, if two courts are subordinate to different High Courts, one High Court has no power, jurisdiction or authority to transfer a case pending in any court subordinate to that High Court to a Court subordinate to other High Court. It is only the Supreme Court (this Court) which may order the transfer.‖
11. In fact, the Hon'ble Supreme Court in the said decision has further held that the jurisdiction of the High Court has territorial limitations. It can exercise the power throughout the territories in relation to which it exercises the jurisdiction, i.e. 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 rules must be within those territories, which clearly implies that they must be amenable to jurisdiction in accordance with law. In the present facts, as already taken note, since the four States, referred to above, has a Common High Tr. Petition (C) No.6/2018 Page 8 of 9 Court and the writs to be issued by the High Court would run in all the four States having territorial jurisdiction over such States, even in that circumstance, we are of the opinion that in such cases where there is no separate High Court established in respect of the State, the High Court exercising territorial jurisdiction over such State would have the jurisdiction even to entertain a transfer petition under Section 24 of the CPC. Hence, we answer the questions, as referred to by the learned Single Judge, as under:-
(a) It is held that this Court has jurisdiction to exercise powers under Section 24 of the CPC read with Section 23(1) and/or Section 23(2) of CPC to transfer a suit, appeal or any other proceeding from one of the four States under its jurisdiction to any one other States under its jurisdiction for trial.
(b) In view of the discussions contained above, the ratio laid down in the case of Pomi Sengupta -Vs- Biswajit Sengupta, reported in (2015) 6 GLR 396 does not lay down the correct law. Hence, we, accordingly, overrule the same.
(c) No other point arises for consideration in that context.
12. Having answered the reference in the above manner, we direct that the Registry shall now place the petition before the learned Single Judge for consideration of the same on its own merit and in accordance with law.
Sd/- Sd/-
J U D G E CHIEF JUSTICE
Comparing Assistant
Tr. Petition (C) No.6/2018 Page 9 of 9