Section 25 of Code of Civil Procedure 1908 "Power of Supreme Court to transfer suits, etc"

(1) After application, notice and hearing as desired, the supreme court at any stage if satisfied
that order which is given under this section is sufficient for giving justice, then commands or
can give order to transfer any case, suitappeal or any proceeding to transfer it from one high
court or civil court to others state high court or civil court.

2 every application which has been made under this section it should be supported with
affidavit.

3 In this section it has been given that the court to which the suit, appeal or other
proceeding has been transferred, it is in special privilege that it can retry that case ot it
can start it from proceed from the stage at which it was transferred to it.

4 In dismissing any application under this section, the Supreme

4 If supreme court dismisses any application under this section, and

5 the law applied to the suit transferred under this section shall be
the law which the suit originally instituted ought to have applied to
such suit or case.
Case law-

Guda Vijayalakshmi vs Guda Ramchandra Sekhara Sastry  

The petitioner  (wife) filed  a suit  (O.P.  72/79)  in forma  pauperis  seeking
maintenance  from  the  respondent (husband) in  the court  of subordinate
Judge, Eluru (Andhra Pradesh). On  the receipt  of the  notice of  the suit,  the
respondent filed  a divorce suit (Petition Case No. 28/1980) against the wife
under section 13 of the Hindu Marriage Act, 1955  in   the  court   of  the
District  Judge,   Udaipur (Rajasthan). By  the instant  transfer petition  filed
under section 25  C.P.C., 1908, the wife sought to get the suit at Udaipur
transferred to Eluru.      A preliminary  objection was  raised to the effect that
section 25  of the Civil Procedure Code, which gets excluded by reason  of the
provisions of  sections 20  and 21 of the Hindu Marriage  Act, 1955,  is not
applicable to proceedings under the  said Act  and as  such the  Supreme Court
has no power to  transfer the  husband’s suit from Udaipur District Court,
Udaipur  (Rajasthan) to  Eluru District  Court, Eluru (A.P.).      Rejecting the
preliminary objection, the Court ^      HELD: Per curiam      On merits,  it is
expedient for the ends of justice to transfer the  husband’s suit  pending in  the
District Court Udaipur (Rajasthan)  to the  District Court at Eluru (Andhra
Pradesh), where both the proceedings could be tried together and for  that
purpose,  the wife  is agreeable  to have  her maintenance suit  transferred to
the District Court at Eluru (A.P.). [226 A-B]      Per Tulzapurkar J.      1. It  will
invariably  be expedient to have a joint or consolidated hearing or trial by one
and the same Court of a husband’s petition for restitution of conjugal rights on
the ground that  the wife has withdrawn from his society without reasonable
excuse  under section 9 of the Hindu Marriage Act
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and the  wife’s petition for judicial separation against her husband on  ground
of  cruelty under  section 10 of the said Act in  order to  avoid conflicting
decisions being rendered by two  different Courts.  In such  a situation  resort
will have to be had to the 224 powers under  sections 23  to 25 of the Civil
Procedure Code for directing  transfer of  the petitions for a consolidated
hearing. [228 G-H, 227A]      2:1.  On   a  proper   construction  of   the  relevant
provisions, it cannot be said that the substantive provision contained in
section 25 Civil Procedure Code is excluded by reason of  section 21  of the
Hindu Marriage Act. 1955. [226 F]      2:2. In  terms, section  21 C.P.C.  does
not  make  any distinction between procedural and substantive provisions of
C.P.C. and  all that it provides is that the Code, as far as may be, shall apply to
all proceedings under the Act and the phrase "as  far as  may be" means and is
intended to exclude only  such   provisions  of  the  Code  as  are  or  may  be
inconsistent with  any of  the provisions of the Code. It is impossible to  say
that  such  provisions  of  the  Code  as partake of  the character of substantive
law are excluded by implication as  no such implication can be read into
section 21 of  the Act  and  a  particular  provision  of  the  Code irrespective of
whether it is procedural or substantive will not apply  only if it is inconsistent
with any provisions of the Act. [226 G-H, 227 A-B]      3. Section 21A of the
Hindu Marriage Act, 1955 does not exclude the  power of  transfer conferred
upon the  Supreme Court by  the present  section 25  C.P.C.,  in  relation  to
proceedings under that Act. The marginal note of section 21A itself makes  it
clear  that it deals with power to transfer petitions and  direct their  joint or
consolidated "trial in certain cases"  and is  not exhaustive. Section 21A does
not deal with  the present  section 25  C.P.C.  which  has  been substituted by
an amendment  which has come into force with effect from February 1, 1977
(section 11 of the Amending Act 104, 1976). By the amendment very wide and
plenary power has been conferred  on the  Supreme Court  for the first time to
transfer any suit, appeal or other proceedings from one High Court to  another
High  Court or from one Civil Court in one State to  another Civil  Court in any
other State throughout the country. Conferral of such wide and plenary power
on the Supreme Court  could  not  have  been  in  contemplation  of Parliament
at  the time  of enactment  of section 21A of the Hindu Marriage Act, 1955.
[227 C-D, F-H, 228 A-B]      Smt. Rama  Kanta v.  Ashok Kumar,  AIR  1977
Punjab  & Haryana 373 and Priyavari Mehta v. Priyanath Mehta, AIR 1980
Bombay 337, overruled.      Per Amrendra Nath Sen, J.      1.  A  plain  reading
of  section  25  C.P.C.  clearly indicates that  very wide  jurisdiction and powers
have been conferred on  the Supreme Court to transfer any suit, appeal or any
other proceedings  from a  High Court or other Civil Court in  any State  to a
High Court or other Civil Court in any other  State for  the ends  of  justice.
Supreme  Court enjoys the  power and jurisdiction to entertain the transfer
application under section 25 of the Code of Civil Procedure. [230 F, 233 D]
2 : 1. Sections 21 and 21A of the Hindu Marriage Act do not in  any  way,
exclude,  effect  or  curtail  the  power conferred on  the Supreme Court under
section 25 of the Code of Civil Procedure. If the jurisdiction clearly conferred
225
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on any  court has  to  be  ousted,  the  exclusion  of  such jurisdiction must  be
made  in clear  and unequivocal terms. [232E, 233D]      2 :  2. Section  21 of
the  Hindu  Marriage  Act  only provides that  "all proceedings under the
Hindu Marriage Act shall be  regulated as  far as  may be  by the Code of Civil
Procedure, 1908".  Section 21 of the Hindu Marriage Act does not deal  with
the question of jurisdiction of any court and it cannot be construed to exclude
the jurisdiction conferred on the Supreme Court under section 25 C.P.C. [232
E-G]      2 :  3. Section  21A of  the Hindu  Marriage  Act  has, indeed, no
bearing on the question of jurisdiction conferred on the Supreme Court under
section 25 C.P.C. Section 21A has no application  to the  case of  transfer  of
any  suit  or proceeding from one State to another. [233 B-C]      2 :  4. The
Supreme Court  must necessarily  enjoy the power and  jurisdiction under  the
provisions  of section 25 C.P.C. of  transferring such  a suit  or proceeding  for
the ends of  justice unless  the power  and jurisdiction  of the Supreme Court
are specifically  taken away  by any statute. [232D-E]      3. Section  25 of the
Code of Civil Procedure came into force after  section 21  and 21A  of the
Hindu Marriage Act have been  incorporated in  the Hindu Marriage Act, 1955
and as such section 25 of the Code overrides sections 21 and 21A of the Hindu
Marriage Act. [233 A-E]