Holding

The transfer order was set aside because the High Court failed to apply its mind or record any grounds, violating the requirements of Section 24 CPC.

Summary

The Kandi Friends Education Trust filed an application under Section 24 of the Code of Civil Procedure, 1908 seeking to transfer a civil suit from the Civil Judge, Ropar, to the Additional Civil Judge, Chandigarh. The High Court transferred the suit without recording any reasons, without considering the plaintiff's allegations or the defendants' counter‑allegations, and named a specific judge for the transfer. The appellant, Kulwinder Kaur, challenged the transfer, arguing that the High Court had not applied its mind as required by law. The Supreme Court held that the power to transfer a case under Section 24 must be exercised with due care, circumspection, and a recorded rationale, and cannot be exercised ipse dixit. Consequently, the Court set aside the High Court’s transfer order and remitted the matter for fresh disposal, allowing the appeal.

Issues considered

Whether the High Court was justified in transferring the suit without recording any reasons or considering the parties' allegations.
Whether the power under Section 24 of the CPC can be exercised ipse dixit and by naming a specific judge.
Whether the High Court complied with the requirement of applying its mind when exercising discretionary transfer powers.

Legislation cited

Code of Civil Procedure, 1908s. 24, s. 25

Subjects

Transfer of suitSection 24 CPCDiscretionary powerApplication of mindFair trialCivil procedureHigh Court order

Judgment

[2008] 1 S.C.R. 556

A KULWINDER KAUR @ KULWINDER GURCHARAN
SINGH
v.
KANDI FRIENDS EDUCATION TRUST AND ORS.
(C.A. No. 338 of 2008)
B JANUARY 11, 2008
[C.K. THAKKER AND MARKANDEY KATJU, JJ.]

Code of Civil Procedure, 1908 - s. 24 - Transfer of cases
c - Power of court - Scope of - High Court transferring civil suit
from the court of Civil Judge, Ropar to the court of Additional
Civil Judge, Chandigarh - Challenge to - Held: High Court
did not record any reason/ground for transferring the suit -
Also it did not consider the a/legations and counter-allegations
D - Moreso, the delay was a.ttributable to plaintiff in the suit -
Power u/s 24 cannot be exercised ipse dixit in the manner in

.. -
which it was done - High Court should have applied its mind
to these aspects and prima fade satisfied as to the grounds
which weighed in taking such action - Thus, order of High Court
set aside and matter remitted back.
E
The question which arose for consideration in this
appeal was whether in the facts and circumstances of the
case, the High Court was justified in transferring civil suit
from the Court of Civil Judge, Ropar to the Court of
F Additional Civil Judge, Chandigarh, by naming the Judge.
Allowing the appeal and remitting the matter, the
Court
HELD: 1.1 Section 24 of the Code of Civil Procedure,
G 1908 empowers a High Court or a District Court to transfer
inter alia any suit, appeal or other proceeding pending
before it or in any Court subordinate to it to any other
Court for trial and disposal. The said provision confers
comprehensive power on the Court to transfer suits,
H 556

,-
I
KULWINDER KAUR @ KULWINDER G. SINGH v. 557
KANDI FRIENDS ED. TRUST & ORS.

appeals or other proceedings 'at any stage' either oh an A
application by any party or suo motu. [Para 13]
1.2 Although the discretionary power of transfer of
cases cannot be imprisoned within a strait-jacket or any
cast-iron formula unanimously applicable to all situations,
it cannot be gainsaid that the power to transfer a case 8
must be exercised with due care, caution and
circumspection. 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 C
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; D
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 E
or other proceeding, etc. These are some of the instances
which are germane in considering the question of transfer
of a suit, appeal or other proceeding. However, they are
illustrative in nature and by no means be treated as
exhaustive. If on the above or other relevant
i considerations, the Court feels that the plaintiff or the F
..; 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. [Para 14]
[564-C, D, E, F, G]
G
Maneka Sanjay Gandhi v. Rani Jethmalani, 1979 (2) SCR
378; Subramaniam Swamy v Ramakrishna Hegde, 1990 (1)
sec 417 - relied on.
2.1 In the instant case, the High Court without stating
anything whatsoever as to allegations and counter- H
558 SUPREME COURT REPORTS [2008] 1 S.C.R.

A allegations, without considering the reply submitted by
the appellant and without recording any reason/ground
passed the impugned order transferring the case. The
contesting respondent no doubt submitted that the Court
did not: observe anything since observations by a High
B Court one way or the other might prejudice one of the
parties to the suit. It is true that normally while making an
order of transfer, the Court may not enter into merits of
the matter as it may affect the final outcome of the
proceedings or cause prejudice to one or the other side.
C However, at the same time, an order of transfer must reflect
application of mind by the Court and the circumstances
which weighed in taking the action. [Para 17] [566-F, G;
567-A, B]
2.2 The plaintiff alleged that though more than three
D years had passed from instituting the suit, it was not
disposed of and delay had been caused by the defendants
as they were in office and they wanted to prolong the
proceedings so that they may take undue benefit of their . .
status. The defendants in the reply filed by them
E contended that delay had not been caused by them, but
it was the plaintiff who was responsible for not proceeding
with the suit and was to be blamed for creation of such
situation. In support of the contention, Zimni proceedings
were relied upon. It was also urged that the plaintiff-side
F could not get favourable order on applications under
Order XXXIX, Rules 1 and 2 of the Code and, hence, it
wanted to get the case transferred. In view of the assertion
and retraction by the plaintiff and the defendants, the High
Court ought to have applied its mind to those aspects and
prima facie satisfied as to the grounds put forward by the
G plaintiff in the transfer application and ought to have
passed an order one way or the other without entering
into the controversy in the suit. Unfortunately, the High
Court allowed the application observing that it would be
'appropriate' to transfer the suit pending in the Court of
H Smt. Asha Konal, Civil Judge, Ropar to the Court of Sh. Y.
KULWINDER KAUR @ KULWINDER G. SINGH v. 559
KANDI FRIENDS ED. TRUST & ORS. [THAKKER, J.]

-"". S. Rathore, Additional Civil Judge, (Sr. Divn) Chandigarh. A
Thus, powers under section 24 of the Code cannot be
exercised ipse dixit in the manner in which it has been
done. [Para 17] [567-B~ C, D, E, F, G]
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 338
B
of 2008.
From the final Judgment and Order dated 17 .11.2006 of
-f the High Court of Punjab and Haryaila at Chandigarh in C.M.
No. 22108-Cll of2006.
Puneet Bali, Hittan Nehra and S.S. Jauhar for the Appellant. c
Sridhar, Rishi Malhotra, R. Singh and Prem Malhotra for
the Respondents.
The Judgment of the Court was delivered by
D
C.K. THAKKER, J. 1. Leave granted.
--< 2. This appeal is directed against the judgment and order
• dated November 17, 2006 in Civil Miscellaneous No. 22108
Cll of 2006. By the said order, the High Court of Punjab &
Haryana transferred Civil Suit No. 506 of 2003 from the Court E
of Smt. Asha Kendal, Civil Judge (Sr. Dvn.), Ropar to the Court
of Sh. Y.S. Rathore, Additional Civil Judge (Sr. Dvn.),
Chandigarh.
3. Short facts giving rise to present appeal are that Kandi
1 Friends Educational Trust ("Trust" for short) was set up for F
... establishing professional educational institutions with prominent
educationists and industrialists of the State of Punjab oil
September 24, 1997. It is the case of the appellant that
Gurcharan Singh, her husband was the Founder Chairman of
the Trust whereas the appellant was a Trustee along with the G
Founder Chairman. In 1998, certain new trustees were inducted
~ including one B.S. Randhawa. In September, 2002, elections
were held and Gurcharan Singh was again elected as the
Chairman of the Trust. B.S. Randhawa and his wife Hardev Kaur
raised protest against the said election. In December, 2002, H
560 SUPREME COURT REPORTS [2008] 1 S.C.R.

A Gurcharan Singh, Chairman of the Trust sought certain ;....
amendments in the Constitution of the Trust which were approved
by majority though B.S. Randhawa and Hardev Kaur opposed
to such amendments. On June 21, 2003, Gurcharan Singh,
Chairman of the Trust was murdered while hewas taking stroll
B in a park along with the appellant. B.S. Randhawa, who was
one of the Trustees, was arrested as the main accused and
was charged for committing murder of Gurcharan Singh. F.l.R. ..,.
No. 271 of 2003 was registered on the same day at Mohali
Police Station. In view of death of Gurcharan Singh, election of
c the Chairman was again held on July 23, 2003 and the appellant
was unanimously elected as the Chairperson. Ms. Japneet Kaur
was nominated as trustee being daughter of late Gurcharan
Singh and she also started attending meetings of the Trust. B.S.
Randhawa and Hardev Kaur were obviously unhappy with the
development. Hardev Kaur, hence, filed a suit on July 25, 2003
D
for a declaration that all proceedings cooducted by the
defendants in the Meeting dated July 23, 2003 in which the )".
appellant was elected as the Chairperson were illegal, null and • <
void and liable to be set aside. Certain other reliefs were also
claimed. In the suit, the appellant herein was impleaded as
E defendant No. 4. Along with the plaint, the plaintiffs filed an
application under Order XXXIX, Rules 1 and 2 of the Code of
Civil Procedure, 1908 (hereinafter referred to as "the Code")
for interim relief, but only limited interim relief was granted and
the plaintiff Smt. Hardev Kaur was allowed to attend meetings
F of the Trust. Other interim reliefs were expressly refused. Having ..
failed to get relief sought in interim application, Hardev Kaur ...
and B.S. Randhawa filed another suit, i.e. the present suit in
October, 2003 in the name of Kandi Friends Education Trust
through its so-called General Secretary Jaspal Singh. Though
G the appellant was duly elected as Chairperson of the Trust, she
was wrongly described as Trustee and it was stated by the
plaintiff that they were in-charge and in management of the Trust.
A declaration was sought that the resolution dated October 14,
2003 adopted by the defendants was illegal, null and void.
H
KULWINDER KAUR @ KULWINDER G. SINGH v. . 561
KANDI FRIENDS ED. TRUST & ORS. [THAKKER, J.]
~· Consequential reliefs were also prayed. A

4. On June 4, 2005, one more suit was filed by Jaspal
Singh for declaration and permanent injunction against the
appellant. In interim injunction, only status quo was ordered to
be maintained by the Court. Jaspal Singh also filed a transfer
B
application No. 14 of2006 in the District Court, Roparfortransfer
of suit from the Court of Smt. Asha Kondal to the Court of Shri
-f A.S. Garewal, which was, however, dismissed as withdrawn.

5. On November 2, 2006, the Trust filed an application
under Section 24 of the Code in the High Court of Punjab & c
Haryana being Civil Miscellaneous No. 22108 Cll of 2006 for
transfer of Suit No. 506 of 2003 pending in the Court of Smt.
Asha Kondal, Sub-Judge, (Sr. Dvn.), Ropar "to any other Court
of competent jurisdiction in Chandigarh or in the State of
Haryana" in view of "peculiar facts and circumstances of the
D
case in the interest of justice". It was inter a/ia alleged in the
-..;( Transfer Application that though the suit was instituted in 2003
~ seeking injunction against the defendant-appellant herein and
others, it was pending even in November, 2006. More than three
years had passed and yet there was no 'much progress' in the
case. It was further alleged that there was lot of local pressure E
which had led to delay and it had given advantage to the
defendants as they were in power and were trying to protract
the proceedings. It was asserted that the Institution was one of
the most prestigious institutions in the area and lots of funds
-;
were generated as there were several students. Hence, the F
Committee members who were in office were trying their level
"" best to stall the proceedings by using various tactics. It was
also stated that though the term of the appellant expired on
August 31, 2005, she continued to be in power simply because
no case filed against her was decided either way. A prayer was, G
therefore, made to transfer the case.
6. The appellant herein filed detailed reply to the application
contending that false and scandalous allegations have been
levelled by the plaintiff against the defendants which were not
H
562 SUPREME COURT REPORTS [2008] 1 S.C.R.

A correct. It was submitted that suit filed by the plaintiff was not
maintainable as there was no proper resolution and no authority
had been given by the appellant-Chairperson to file such suit. It
was further stated that no one could have a court of one's own
choice and on the facts and in the circumstances, no case was
B made out for transfer of suit. It was stated that Zimni orders
clearly revealed that there was no delay on the part of the
defendants. The delay was largely attributable to the plaintiff-
trust.
7. In this connection, it was stated in the reply as under;
c
Date of filing 11.11.2003
Issues framed 24.12.2003
For PWs. 30.3.2004
D No PWs. Produced Till date 29.11.2006
It was, therefore, submitted that the application was devoid ).
of merit, laced with malice and was liable to be dismissed.
8. The learned Single Judge of the High Court observed
E that it was alleged by the plaintiff that though the suit was filed in
2003, there was 'no substantive progress' in the suit. The learned
Judge no doubt observed that certain allegations levelled by
the plaintiff had been controverted and counter-allegations had
been made by the defendants. But without going into the
F allegations and counter-allegations, it would be appropriate to t-
transfer the suit to Chandigarh. Accordingly, by the impugned ,.
order, the suit was transferred and a direction was issued to
decide the matter expeditiously by giving two opportunities to
each of the parties spread over a period of six months.
G 9. The aforesaid order is challenged by the appellant in
the present appeal. On January 5, 2007, notice was issued by
this Court and further proceedings in the suit were stayed.
Counter affidavit was thereafter filed. The matter then was
ordered to be posted for final hearing.
H
KULWINDER KAUR @ KULWINDER G. SINGH v. 563
KANDI FRIENDS ED. TRUST & ORS. [THAKKER, J.]
~
10. We have heard the learned counsel for the parties. A

11. The learned counsel for the appellant contended that
the High Court committed an error of law and of jurisdictioii-1n
transferring the case from Ropar to Chandigarh. It was
submitted that no reasons/grounds have been disclosed fo'r
taking such action of transferring the suit. The counsel submitted
B
that all the allegations levelled by the plaintiff had· been
-+ controverted by the defendants and even the learned Judge 'of
the High Court had observed in the order that there were
allegations and counter-allegations by the parties. In spite of
such situation, the Court passed the impugned order of transfer c
which is not in consonance with law. On merits, it was submitted
that it was factually incorrect to allege that there was, delay on
the part of the defendants. The defendants had produced Zimni
which went to show that it was the plaintiff and not the defendants
who was responsible for the delay. If it is so, the High Court was D
A wrong in passing the impugned order. Finally, it was.submitteq
~ that the High Court was not justified in transferring the case in
the court of a particular named Judge. Normally, no such order
is passed. Even in the transfer-application, no such prayer was.
made by the plaintiff. The order to that extent, therefore, deserves E
to be setaside.

12. The learned counsel for the respondent, on the other
hand, supported the impugned order. It was submitted that
·-1 the High Court was satisfied that Section 24 of the Code
confers discretionary power on the Court to transfer a case F
"" from one court to any other court subordinate to it: In exercise
of the said power, an action has been taken which cannot be
challenged under Article 136 of the Constitution. It was
submitted that the High Court took into account 'ground reality'
that a suit of 2003 which was of an urgent nature was not G
11 disposed of even in 2006. If, in the light of the above fact, the
case is transferred, it could not be said that the order
deserves interference in exercise of discretionary jurisdiction
by this Court. It was, therefore, submitted that the appeal
deserves to be dismissed. H
564 SUPREME COURT REPORTS [2008] 1 S.C.R.

>--
A 13. Having considered rival contentions of the parties and
having gone through the proceedings of the case, we are of the
view that the impugned order deserves to be set aside. So far
as the power of transfer is concerned, Section 24 of the Code
empowers a High Court or a District Court to transfer inter a/ia
B any suit, appeal or other proceeding pending before it or in any
Court subordinate to it to any other Court for trial and disposal.
The said provision confers comprehensive power on the Court f-
to transfer suits, appeals or other proceedings 'at any stage'
either on an application by any party or suo motu.
c 14. Although the discretionary power of transfer of cases
cannot be imprisoned within a strait-jacket of any cast-iron
formula unanimously applicable to all situations, it cannot be
gainsaid that the power to transfer a case must be exercised
with due care, caution and circumspection. Reading Sections
D 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
E 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
t
F 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
G
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.
H
KULWINDER KAUR @ KULWINDER G. SINGH v. 565
KANDI FRIENDS ED. TRUST & ORS. [THAKKER, J.]
......
15. In Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) . A
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 8
. 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
c
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)
:'i 16. Similarly in Subramaniam Swamy v. Ramakrishna
D
Hegde, (1990) 1 SCC 4, dealing with power of this Court to
A,
transfer a case under Section 25 of the Code, A.M. Ahmadi, J.
" (as His Lordship then was) ~tated;
"Under the old section the State Government was
empowered to transfer a suit, appeal or other proceeding E
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 F
.... 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
G
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
H
566 SUPREME COURT REPORTS (2008] 1 S.C.R.

A 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
s suit, the plaintiff as dominus fitis 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
c be shown that trial in the chosen forum will result in denial
of justice. Cases are not unknown where a party seeking
;ustice 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
D
another if that is considered expedient to meet the ends
ofjustice. 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
E 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
F the plaintiff. The petitioner's plea for the transfer of the
case must be tested on this touchstone".
(emphasis supplied)
17. In the case on hand, the High Court without stating
G anything whatsoever as to allegations and counter-allegations,
without considering the reply submitted by the appellant herein
and without recording any reason/ground passed the impugned
order transferring the case. The learned counsel for the
contesting respondent no doubt submitted that the Court has
not observed anything since observations by a High Court one
H
KULWINDER KAUR @ KULWINDER G. SINGH v. 567
KANDI FRIENDS ED. TRUST & ORS. [THAKKER, J.]

way or the other might prejudice one of the parties to the suit. It A
.~
is true that normally While making an order of transfer, the Court
may not enter into merits of the matter as it may affect the final
outcome of the proceedings or cause prejudice to one or the
other side. At the same time, however, an order of transfer must
reflect application of mind by the Court and the circumstances B ...
which weighed in taking the action. In the instant case, it was
alleged by the plaintiff that though more than three years had
~ passed from instituting the suit, it was not disposed of and delay
had been caused by the defendants as they were in office and
they wanted to prolong the proceedings so that they may take c
undue benefit of their status. The defendants, in the reply filed
by them, contended that delay had not been caused by them,
. but it was the plaintiff who was responsible for not proceeding
with the suit and was to be blamed for creation of such situation.
In support of the contention, Zimni proceedings were relied
D
upon. It was also urged that the plaintiff-side could not get
favourable order on applications under Order XXXIX, Rules 1
~ and 2 of the Code and, hence, it wanted to get the case
...
transferred. In view of the assertion and retraction by the plaintiff
and the defendants, in our considered opinion, the High Court
ought to have applied its mind to those aspects and prima facie E
satisfied as to the grounds put forward by the plaintiff in the
transfer application and ought to have passed an order one way
or the other without entering into the controversy in the suit.
Unfortunately, the High Court allowed the application observing
~ that it would be 'appropriate' to transfer the suit pending in the F
.... Court of Smt. Asha Konal, Civil Judge, (Sr. Divn.), Ropar to the
Court of Sh. Y.S. Rathore, Additional Civil Judge (Sr. Divn.),
Chandigarh. In our opinion, powers under Section 24 of the Code
cannot be exercised ipse dixit in the manner in which it has
been done. Only on that ground and without entering into larger G
issue, the appeal deserves to be allowed and is accordingly,
.... allowed .
18. For the foregoing reasons, the appeal is allowed. The
order passed by the High Court is set aside and the matter is
H
568 SUPREME COURT REPORTS [2008] 1 S.C.R.

A remitted to the High Court for fresh disposal in accordance with
law after hearing the parties. On the facts and in circumstances
of the case, however, there shall be no order as to costs.
19. Before parting with the matter, we make it clear that
we have not entered into correctness or otherwise of what is
8 stated by the plaintiff or by the defendants and we may not be
understood to have expressed any opinion on allegations and
counter-allegations. As and when the matter will be placed before
the High Court, the Court will take an appropriate decision on
its own merits without being inhibited or influenced by the
observations made by us in this judgment. ,, .
N.J. Appeal allowed.