transfer of suits
In Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 2 SCR 378, this Court stated;
Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. (emphasis supplied)
Similarly in Subramaniam Swamy v. Ramakrishna Hegde, (1990) 1 SCC 4, dealing with power of this Court to transfer a case under Section 25 of the Code, A.M. Ahmadi, J. (as His Lordship then was) stated;
Under the old section the State Government was empowered to transfer a suit, appeal or other proceeding pending in the High Court of that State to any other High Court on receipt of a report from the Judge trying or hearing the suit that there existed reasonable grounds for such transfer provided the State Government of the State in which the other High Court had its principal seat consented to the transfer. The present Section 25 confers the power of transfer on the Supreme Court and is of wide amplitude. Under the present provision the Supreme Court is empowered at any stage to transfer any suit, appeal or other proceeding from a High Court or other Civil Court in one State to a High Court or other Civil Court of another State if it is satisfied that such an order is expedient for the ends of justice. The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one court has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. The Parliament has therefore, invested this Court with the discretion to transfer the case from one Court to another if that is considered expedient to meet the ends of justice. Words of wide amplitude- for the ends of justice-have been advisedly used to leave the matter to the discretion of the apex court as it is not possible to conceive of all situations requiring or justifying the exercise of power. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner's plea for the transfer of the case must be tested on this touchstone.
Supreme Court of India
Indian Overseas Bank, Madras vs Chemical Construction Company & ... on 3 May, 1979
The principle governing the general power of transfer and withdrawal under Section 24 of the Code is that the plaintiff is the dominus litis and, as such, entitled to institute his suit in any forum which the law allows him. The Court should not lightly change that forum and compel him to go to another Court, with consequent increase in inconvenience and expense of prosecuting his suit. A mere balance of convenience in favour of proceedings in another Court, albeit a material consideration may not always be a sure criterion justifying transfer.
As compared with Section 24, the power of transfer of a civil proceeding to another Court, conferred under the new Section 25 on the Supreme Court, is far wider. And, so is the amplitude of the expression, "expedient in the interest of justice" which furnishes a general guideline for the exercise of the power. Whether it is expedient or desirable in the interest of justice to transfer a proceeding to another Court is a question which depends on the circumstances of the particular case.
Although the exercise of this discretionary power can not be imprisoned within them straight jacket of any cast iron formula uniformly applicable to all situations, yet, certain broad propositions as to what may constitute a ground for transfer can be deduced from judicial decisions. One of them is that where two suits raising common questions of facts and laws between parties common to both the suits are pending in two different courts, it is generally in the interest of justice to transfer one of those suits to the other forum to be tried by the same Court, with consequent avoidance of multiplicity in the trial of the same issues and the risk of conflicting decisions thereon.
The Apex Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh v Kandi Friends Educational Trust and others , laid down the following guidelines to exercise power under Section 24 of CPC by the Courts and they are as follows:
(1) Balance of convenience or inconvenience to the plaintiff or the defendant or witnesses;
(2) convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit.
(3) Issues raised by the parties.
(4) reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending.
(5) important questions of law involved or a considerable section of public interested in the litigation.
(6) interest of justice demanding for transfer of case etc.,"
In Indian Overseas Bank, Madras v Chemical Construction Company, wherein a civil suit is sought to be transferred from the Court of District Judge, Madhya Pradesh, to the file of High Court at Madras, where another suit is pending and material issues in both the suits are common or inter dependant, the Apex Court observed that there is no cast iron formula uniformly applicable to all situations as to what constitutes a valid ground for transfer and a mere balance of inconvenience in favour of the proceedings in another Court, albeit, a material consideration, may not always be a sure criterion justifying transfer. One of the grounds is that where two suits arise common question of fact and law between the parties common to both the suits, are pending in two different courts, it is generally in the interest of justice to transfer one of the suit to other forum to be tried by the same Court with the consequent avoidance of multiplicity of proceedings and risk of conflicting decisions.
In Thiruvenkitan v Anantha Kumar, the Kerala High Court held that when a petition is filed for withdrawal and transfer of the suit filed for partition to Sub Court, Kottayam, from Sub Court, Kollam, on the ground that major items of the property are situated within the jurisdiction of Alappuzha Sub Court and that the places of business of the family are at Alappuzha and Kottayam, but the Court held that mere inconvenience as pointed out by the defendant would not be a ground sufficient to deprive of his choice of forum. It is well established that plaintiff has a right to choose the forum for his action. The essential guiding principle is convenience of both the parties must be weighed. Since majority of properties are situated at Alappuzha, the Court allowed the Petition.
If these general principles are kept in mind while deciding an application filed under Section 24 of CPC, which deals with general power of the Court to withdraw and transfer of the cases pending on the file of the Court Subordinate to it and transfer to the other, it is easy for any Judge to decide the transfer petition. On close analysis, the law declared by the Apex Court in Kulwinder Kaur's case (referred supra), Guda Vijayalakshmi's case (referred supra) and also in Indian Oversees Bank's case (referred supra), the convenience to the party to appear before the Court alone is not the ground to withdraw the pending cases before another Court and transfer to the other.
The Court has to keep in mind the inconvenience caused to both the parties and if the Court finds that inconvenience caused to the petitioner outweighed the inconvenience being caused to the respondent, then the Court may withdraw the pending matrimonial case from one Court and transfer to another Court.
In case of State of Punjab v/s Davinder Pal Singh Bhullar, reported in (2011) 14 SCC 770, the apex Court has consider the scope of judicial bias. The relevant paras of the judgment are as under :-
"10. There may be a case where allegations may be made against a Judge of having bias/prejudice at any stage of the proceedings or after the proceedings are over. There may be some substance in it or it may be made for ulterior purpose or in a pending case to avoid the Bench if a party apprehends that judgment may be delivered against him. Suspicion or bias disables an official from acting as an adjudicator. Further, if such allegation is made without any substance, it would be disastrous to the system as a whole, for the reason, that it casts doubt upon a Judge who has no personal interest in the outcome of the controversy.
11. In respect of judicial bias, the statement made by Frank J. of the United States is worth quoting:-
"If, however, `bias' and `partiality' be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions ....... Much harm is done by the myth that, merely by....... taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine." [In re: Linahan, 138 F. 2nd 650 (1943)] (See also: State of West Bengal & Ors. v. Shivananda Pathak & Ors., AIR 1998 SC 2050).
12. To recall the words of Mr. Justice Frankfurter in Public Utilities Commission of the District of Columbia v. Franklin S. Pollak, 343 US 451 (1952) 466: The Judicial process demands that a judge moves within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it.
It does. The fact is that, on the whole, judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted.
13. In Bhajan Lal, Chief Minister, Haryana v. M/s. Jindal Strips Ltd. & Ors., (1994) 6 SCC 19, this Court observed that there may be some consternation and apprehension in the mind of a party and undoubtedly, he has a right to have fair trial, as guaranteed by the Constitution. The apprehension of bias must be reasonable, i.e. which a reasonable person can entertain. Even in that case, he has no right to ask for a change of Bench, for the reason that such an apprehension may be inadequate and he cannot be permitted to have the Bench of his choice.
The Court held as under:-
"Bias is the second limb of natural justice. Prima facie no one should be a judge in what is to be regarded as `sua causa', whether or not he is named as a party. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject-matter, from a close relationship or from a tenuous one."
The apex Court has considered the scope of Section 24 of CPC in the case of Kulwinder Kaur v/s Kandi Friends Education Trust [(2008) 3 SCC 659] the Judge should be cautioned in allowing the application under Section 24 at any stage of the proceeding. There should be material on record and the ground for transferring the pending proceeding to another Court. Para 23 to 28 are reproduced below :-
"23. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; interest of justice demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a fair trial in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order.
Apex Court in Supreme Court Advocates-on-record Association & Anr. vs. Union of India & Ors. reported in (2016) 5 SCC 808, wherein Khehar, CJ. (as His Lordship then was) inter alia observed that it is the duty of a Court to decide a plea of recusal on merits and not release a matter on the mere asking of a litigant. Khehar, C.J. succinctly enunciated the law of recusal as follows:-
"A Judge may recuse at his own from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never be acceded to. For that would give the impression, that the Judge had been scared out of the case, just by the force of the objection. A Judge before he assumes his office, takes an oath to discharge his duties without fear or favour. He would breach his oath of office, if he accepts a prayer for recusal, unless justified."
It is the constitutional duty of every Judge to decide matters not only 'without favour' but also 'without fear'. Insinuations of bias or prejudice founded on irrelevant or flimsy grounds ought to be dealt with sternly and the court ought not to bow down to such instances of browbeating and recuse itself on the plea of remaining insouciant. A Judge dealing with a lis is required not only to see that the cause is dealt with fairly but also has to ensure that the judicial process is insulated from the machinations of scheming parties and the majesty of justice is preserved. A party to a lis particularly an advocate as in the present case who seeks to circumvent the judicial process through various subterfuges of delay and/or belated pleas of recusal ought not to be encouraged by a mechanical acceptance of such plea on its face value but a deeper scrutiny as to its tenability in law and in fact is necessary before it is accepted and acted upon.
In this context, it may be apposite to recount the observations of Kurian Joseph, J. in Supreme Court Advocates-on-record Association & Anr. (supra) as follows:-
"74. There may be situations where mischievous litigants wanting to avoid a Judge may be because he is known to them to be very strong and thus making an attempt for forum shopping by raising baseless submissions on conflict of interest. The Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union, has made two very relevant observations in this regard: (ZACC para 46) "46. ... 'Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a Judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.' ...
'It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party."
75. Ultimately, the question is whether a fair-minded and reasonably informed person, on correct facts, would reasonably entertain a doubt on the impartiality of the Judge. The reasonableness of the apprehension must be assessed in the light of the oath of office he has taken as a Judge to administer justice without fear or favour, affection or ill will and his ability to carry out the oath by reason of his training and experience whereby he is in a position to disabuse his mind of any irrelevant personal belief or predisposition or unwarranted apprehensions of his image in public or difficulty in deciding a controversial issue particularly when the same is highly sensitive."
Supreme Court of India
Smt. Kaushalya Devi vs Shri Mool, Raj And Others on 4 September, 1963
This Court has had occasion to deal with transfer applications in several cases, but we have never come across a case where the allegations made in the transfer applications are contested by an affidavit made by the learned Magistrate who tries the case himself. It is true that if in a petition for transfer allegations are made against the Magistrate in regard to what he said or did during the course of the trial, and it appears that the said allegations require to be examined, this Court calls for a report from the Magistrate ; and when a report is thus called for, the Magistrate no doubt gives his version in respect of the allegations made by the petitioner against him. But it is impossible to understand how the Magistrate in whose court the proceedings in question are pending can rush into the arena and make an affidavit disputing the prayer made by the petitioner for transfer of the case. A transfer application can be opposed by the complainant if the proceedings have commenced at the instance of a private complainant; it may be opposed by the State; but the Magistrate in whose court the proceedings are pending should never forget that he is a judge and not a partisan for the Administration or the prosecution; that is why it is inconceivable that he should make an affidavit like the present traversing the grounds set out by the accused person when an application for transfer is made by him/her, but, unfortunately, that is precisely what has happened in the present case. The statement made by the learned Magistrate in paragraph 6 of his affidavit, to which we have already referred, clearly shows that the Magistrate has assumed a partisan role and has purported to contest the plea which the petitioner wanted to raise in defence in respect of the charge levelled against her by the complainant. Unfortunately, in some parts of the country, the policy of separating the Judiciary from the executive has still not been implemented. Nevertheless, we are confident that even in areas Where such separation has not taken place, members of the judiciary are functioning without fear or favour. But when an instance like the present comes to the notice of this Court, it naturally causes us considerable concern. The learned Magistrate who has been ill-advised to make the present affidavit, did not realise that when he entered the arena and made an affidavit on behalf of the Administration, his statement that the executive has no influence in his court, is apt to sound idle and meaningless. A little reflection would have satisfied him of the gross impropriety of his action in making an affidavit like the present. It is an elementary principle of the rule of law that judges who preside over trials, civil or criminal, never enter the arena. In criminal trials, particularly, it is of utmost importance that the Magistrate who tries the case must remain fearless, impartial and objective; and so, no argument is required in support of the proposition that if a Magistrate chooses to make an affidavit challenging the application made by an accused person whose case is pending in his court, makes the said affidavit on behalf of the Administration, and in the affidavit puts in a strong plea opposing the transfer, all essential attributes of a fair and impartial criminal trial are immediately put in jeopardy. It is very much to be regretted that the Delhi Administration chose to request the Magistrate to make an affidavit and that the Magistrate accepted the said request and made the affidavit on the lines we have already indicated. That being so, even without considering the merits of the contentions raised by the petitioner, we think it is expedient for the ends of justice that the case pending against the petitioner and three other persons should be transferred from the court of the learned Sub-Divisional Magistrate, Delhi, to a court of competent jurisdiction in Saharanpur, U. P. We accordingly direct that the papers in this case should be sent to the District Magistrate, Saharanpur, who should nominate a Magistrate of competent jurisdiction in his district to try this case.