In a significant verdict, the Supreme Court Tuesday held that a high court can transfer a civil lawsuit from one state to another if it is common and has jurisdiction over both the states.
The judgement came on a “pristinely legal and novel” issue whether the Supreme Court is the sole repository of power under section 25 of the Code of Civil Procedure (CPC) to direct transfer of a “suit, appeal or other proceeding from a civil court in one State to a civil court in another”.
A bench comprising Justices Hrishikesh Roy and Dipankar Datta referred to relevant provisions of the CPC and ruled that the apex court is the sole authority to transfer civil cases from one state to another if the jurisdictional high courts are different.
The top court, however, said that a high court like Gauhati, which is common for Assam, Nagaland, Mizoram and Arunachal Pradesh, cannot be deprived of powers to transfer civil cases from one state to another under its jurisdiction.
“The power under section 24 of the CPC can be exercised by the High Court even for inter-State transfer of a suit, appeal or other proceeding, if it is the common High Court for two or more States under Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it,” Justice Roy, writing the judgement for the bench, said.
“From the factual matrix vis- -vis the Constitutional and statutory provisions, there can be no cavil that the courts and tribunals in the States of Assam, Nagaland, Mizoram and Arunachal Pradesh are not only under the superintendence of the Gauhati High Court in terms of Article 227, all district courts and courts subordinate thereto in such States are subject to the control of the Gauhati High Court under Article 235 …,” the bench said.
Dealing with submissions that only the Supreme Court has the power under section 25 of the CPC to order inter-state transfer of civil cases, the 47-page judgement said an approach to construe the provision has to be “fair, pragmatic, reasonable and realistic.”
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“Any construction of section 25 which would impede access to justice’, considered to be a Fundamental Right, has to be eschewed,” it said.
A narrow interpretation imposing a bar for entertainment of an application for transfer of a suit, appeal or other proceeding by a common High Court like the Gauhati High Court in the four States could place a heavy burden and might pose an insurmountable obstacle for litigants of the far-flung areas of the North-East, if they were made to approach the top court, it said.
The legal issue had arisen in a case filed by one Shah Newaz Khan who had moved the Gauhati High Court for transfer of his civil case from the court of the district judge at Dimapur in Nagaland to Assam.
Seeking transfer, Khan had alleged that he was facing hostile circumstances in Nagaland.
The Gauhati High Court held that it lacked the power which can solely be exercised by the Supreme Court.
Setting aside the decision, the apex court set the law straight and asked the high court to decide the transfer plea of Khan afresh.