SHAH NEWAZ KHAN & ORS. versus STATE OF NAGALAND & ORS on 28 February 2023

SHAH NEWAZ KHAN & ORS.

v.

STATE OF NAGALAND & ORS.

(Civil appeal no. 1497 of 2023)

FEBRUARY 28, 2023

[HRISHIKESH ROY AND DIPANKAR DATTA, JJ.]

Code of Civil Procedure, 1908 – ss.24, 25 – Constitution ofIndia – Arts. 214, 231 – Suit – Transfer of – Appellant-plaintiffmoved an application u/s. 24 of CPC before the Gauhati High Court(Common High Court for the states of Assam, Nagaland and twoother states) for an order to transfer of a suit filed by appellant inthe court of the District Judge, Dimapur, Nagaland to the court ofthe District Judge at Gauhati, Assam – High Court rejected thetransfer application – In appeal before the Supreme Court, issuewas: Is the Supreme Court the sole repository of power in terms ofs. 25 of the CPC to direct transfer of a suit, appeal or otherproceeding from a Civil Court in one State to a Civil Court in anotherState? Or, is it open for a High Court, if it is the common HighCourt for two or more States, to entertain an application for transferu/s. 24 of the CPC and transfer a suit, appeal or other proceedingfrom a Civil Court to another Civil Court, both of which aresubordinate to such High Court but situate in different States inrelation to which it exercises jurisdiction, for consideration anddecision – Held: A true and proper interpretation of s.25 of theCPC leads to conclusion that same applies to inter-State transfer ofa suit, appeal or other proceeding where both States have a HighCourt in terms of Art.214 of the Constitution and not to a transferwhere both States have a common High Court under Art. 231 –Power u/s. 24 of the CPC can be exercised by the High Court evenfor inter-State transfer of a suit, appeal or other proceeding, if it isthe common High Court for two or more States under Art. 231 ofthe Constitution and both the Civil Courts (transferor and transferee)are subordinate to it – Judgment of High Court set aside – GauhatiHigh Court to now decide the application u/s. 24 of CPC afresh.

Code of Civil Procedure, 1908 – ss.24, 25 – Interpretation of– Held: A narrow interpretation of s.25 imposing a bar for

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Aentertainment of an application u/s. 24 for transfer of a suit, appealor other proceeding by a common High Court like the Gauhati HighCourt inter-se the four States in relation to which it exercisesjurisdiction could place a heavy burden and might pose aninsurmountable obstacle for litigants of the far-flung areas of theNorth-East, if they were made to approach Supreme Court for suchBtransfer on the specious ground that the Civil Court to which thesame is proposed to be transferred is in a State other than the Statein which the suit has been instituted.

Interpretation of Statutes – An interpretation of the law thatseeks to address the mischief, that is consistent with the ConstitutionCand promotes constitutional objectives and that which responds tothe needs of the nation must be adopted.

Allowing the appeal, the Court

Conclusion

HELD : 1. Section 24 of the CPC is a general power ofD‘transfer and withdrawal’ capable of being invoked by the HighCourts at any stage either suo motu without notice or on theapplication of any of the parties after notice, whereas section 25confers exclusive power on the Supreme Court, on the applicationof either of the parties and after notice, to transfer suits, etc.from the Courts stated therein. While section 24 is part of theEgeneral law, section 25 is the special law. Law is well-settled, andreferring to the decision in Amarendra Pratap Singh vs. TejBahadur Prajapati, that a general law cannot defeat the provisionsof a special law to the extent to which they are in conflict; else, aneffort has to be made at reconciling the two provisions byFhomogenous reading. What, therefore, needs to be seen andappreciated is whether there is any conflict or inconsistencybetween the general law (section 24) and the special law (section25) for the former to yield to the latter, and ascertain whether theHigh Court still has the jurisdiction under the general law to orderan inter-State transfer notwithstanding the special law vestingGthe Supreme Court with such power of transfer. There has to bean inconsistency between the two so as to apply the maximgeneralia specialibus non derogant. The jurisdiction conferred onthe Supreme Court pursuant to the amendment of section 25 ofthe CPC in 1976 though special, invocation of the jurisdiction ofHthe High Court under section 24 may not come in conflict and defeat section 25, if jurisdiction is still found available to beexercised in a given case under the former without doing violenceto the latter. [Para 37][1006-H; 1007-A, D-G]

2. A High Court ~ howsoever big or small, old or new ~ isas much a Constitutional Court as this Court is and enjoys wideranging powers vested in it by law. No doubt, the power undersection 25 is a special power, but the common High Courts of thecountry ought not to read section 24 of the CPC in a manner as ifthe power of the Supreme Court under section 25 to order aninter-State transfer is available to be exclusively exercised by itin all cases of inter-State transfer, thereby denuding the commonHigh Courts of the country of their jurisdiction by mere referenceto involvement of an inter-State transfer and without anythingmore being looked at. [Para 42][1009-G-H; 1010-A-B]

3. In opinion of this Court, an approach to construe section25 of the CPC has to be fair, pragmatic, reasonable and realistic.Any construction of section 25 which would impede “access tojustice”, considered to be a Fundamental Right, has to beeschewed. A narrow interpretation of section 25 imposing a barfor entertainment of an application under section 24 for transferof a suit, appeal or other proceeding by a common High Courtlike the Gauhati High Court inter-se the four States in relation towhich it exercises jurisdiction could place a heavy burden andmight pose an insurmountable obstacle for litigants of the far-flung areas of the North-East, if they were made to approach thisCourt for such transfer on the specious ground that the CivilCourt to which the same is proposed to be transferred is in aState other than the State in which the suit has been instituted.An interpretation of the law that seeks to address the mischief,that is consistent with the Constitution and promotesconstitutional objectives and that which responds to the needs ofthe nation must be adopted. If “access to justice” has to be real,it becomes the moral responsibility of the Supreme Court, thesupreme guardians/protectors of the rights of people guaranteedby the Constitution and the laws, not to construe the substantivepart in section 25 of the Code in a pedantic manner to bring abouta situation that would thwart the initiative of making “access tojustice” real. [Para 46][1012-C-F]

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A4. In view of the aforesaid discussions, the issue is answeredby concluding that:

(i) a true and proper interpretation of section 25 of the CPClead to the conclusion that the same applies to inter-State transferof a suit, appeal or other proceeding where both States have aBHigh Court in terms of Article 214 of the Constitution and not toa transfer where both States have a common High Court underArticle 231 thereof; and

(ii) the power under section 24 of the CPC can be exercisedby the High Court even for inter-State transfer of a suit, appealCor other proceeding, if it is the common High Court for two ormore States under Article 231 of the Constitution and both theCivil Courts (transferor and transferee) are subordinate to it.[Para 48][1013-A-D]

Durgesh Sharma vs. Jayshree (2008) 9 SCC 648 :[2008] 13 SCR 1056- distinguished.DD. Saibaba v Bar Council of India & Anr. (2003) 6SCC 186 : [2003] 3 SCR 1209; Amarendra PratapSingh vs. Tej Bahadur Prajapati (2004) 10 SCC 65 :[2003] 6 Suppl. SCR 42 – referred to.

Pomi Sengupta vs. Biswajit Sengupta (2015) 6 GLRE396; Megha Jain vs. Kartik Jain (2019) 6 GLR 379;Chalasani Deepthi vs. Chalasani Krishna Chaitanya2015 SCC OnLine Hyd 978; Irene Blanch Khera vs.Glenn John Vijay 2018 (6) Mh. L.J. 199 – referred to.

12th Edition of ‘Principles of Statutory Interpretation’Fat page 131 (Para 6 (e))

Case Law Reference

From the Judgment and Order dated 10.12.2015 of the High Courtof Gauhati in TR No.68 of 2015.H

With

Transfer Petition (c) No.307 of 2016.

Parthiv K. Goswami, Sr. Adv., Ms. Ragini Pandey, Ms. AtigaSingh, Ms. Diksha Rai, Advs. for the Appellants.

K N Balgopal, Sr. Adv., Ms. K. Enatoli Sema, Ms. LimayinlaJamir, Amit Kumar Singh, Ms. Chubalemla Chang, Prang Newmai, VivekNarayan Sharma, Ms. Mahima Bhardwaj, Ms. Laksha Bhavnani,Pranshu Kausha, Shubham Awasthi, Rajeev Kumar Jha, Ram Kumar,Advs. for the Respondents.

The Judgment of the Court was delivered by DIPANKAR DATTA, J.

1. Leave granted.

THE ISSUE

2. An issue, pristinely legal and novel, emerges for decision. It isnovel in the sense that although three different High Courts of the countryhave taken views which are entirely consistent, except the view taken inthe judgment and order under challenge of the Gauhati High Court whichimpliedly stands overruled by a larger Bench of the same High Court,this Court hitherto might not have had the occasion to deal with such anissue and decide either way.

3. Shortly put, the issue is:

Is the Supreme Court the sole repository of power in terms ofsection 25 of the Code of Civil Procedure (for brevity ‘the CPC’)to direct transfer of a suit, appeal or other proceeding from a CivilCourt in one State to a Civil Court in another State? Or, is it openfor a High Court, if it is the common High Court for two or moreStates, to entertain an application for transfer under section 24 ofthe CPC and transfer a suit, appeal or other proceeding from aCivil Court to another Civil Court, both of which are subordinateto such High Court but situate in different States in relation towhich it exercises jurisdiction, for consideration and decision?

FACTS AND THE ORDER UNDER CHALLENGE

4. The facts leading to presentation of this appeal reveal that theappellants having instituted a suit for declaration of right, title and interest A

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Aas well as for perpetual injunction and damages in the court of the DistrictJudge at Dimapur, Nagaland sometime in 2007, failed to prosecute it inthe right earnest allegedly due to hostile circumstances created by theprivate defendants in the suit resulting in dismissal and restoration thereofon three occasions. Pleading why it is impossible for them to continuewith prosecution of the suit at Dimapur, the appellants moved anBapplication under section 24 of the CPC before the Gauhati High Courtfor an order to transfer the suit to the court of the District Judge atGuwahati, Assam. A learned Judge of the Gauhati High Court, whichpresently happens to be the common High Court for the States of Assam,Nagaland, Mizoram and Arunachal Pradesh, presiding over the BenchCat the principal seat at Guwahati, rejected the application for transfer bya judgment and order dated 10[th] December, 2015. While so rejecting,the learned Judge followed His Lordship’s previous decision in PomiSengupta vs. Biswajit Sengupta[1]which, in turn, had entirely relied onthe decision of this Court in Durgesh Sharma vs. Jayshree[2]. Thejudgment and order of rejection of the application under section 24 ofDthe CPC is under challenge in this appeal.

5. The appellants, by way of abundant caution, have also appliedbefore this Court under section 25 of the CPC seeking the same reliefthat was disallowed by the learned Judge.

APPELLANTS’ CONTENTIONSE6. Appearing in support of the appeal, Mr. Goswami, learned seniorcounsel contended that:

a. Article 214 of the Constitution of India ordains that there shallbe a High-Court for each State. Article 231 of the Constitution of Indiaprovides for the establishment of a common High Court for two or moreFStates.

b. The relevant provisions of the CPC for the purpose of a decisionon the present dispute are sections 22 to 25 read with section 3 thereofdealing with subordination of courts.

c. The power of the High Court and the District Courts to directGtransfer of proceedings is provided in section 24 of the CPC.

d. The facts of the instant case clearly satisfy all the ingredientsof section 24 CPC, more particularly, sub-clause (ii) of clause (b) ofsub-section (1) thereof. A bare perusal of such provision 24 would indicate 1 (2015) 6 GLR 396H2 (2008) 9 SCC 648

that the High Court may, at any stage, direct transfer of proceedingspending before it to any court subordinate to it, or transfer proceedingspending in any court subordinate to it to itself or to any other courtsubordinate to it. Thus, the emphasis under the said provision is on theexpression “court subordinate to it”. Section 3 of the CPC, inter alia,defines the courts subordinate to the High Court. Thus, on a plain readingof section 24 of the CPC, it is evident that the common High Court, i.e.,the Gauhati High Court, has the power and jurisdiction to direct inter-State transfer of proceedings, provided both the transferor and transfereecourts are subordinate to it, and fall within its territorial jurisdiction, whichis the case here.

e. On a harmonious construction of section 24 and section 25 ofthe CPC, it is clear that the latter will apply only to inter-State transferof proceedings between two States where the two States in questionhave different High Courts, whereas, in a case involving inter-Statetransfer of proceedings within the territorial jurisdiction of a commonHigh Court, the common High Court would have the power and jurisdictionto direct inter-State transfer of proceedings of the nature stated above,in exercise of its power under section 24 of the CPC.

f.It is a settled proposition of law that in construing a provision,the consequences that befall on a particular interpretation of a provisionis a relevant consideration. Justice G.P. Singh in his treatise[3] has observed thus:

4. REGARD TO CONSEQUENCES

If the language used is capable of hearing more than oneconstruction, in selecting the true meaning, regard. Must behad to the consequences resulting from adopting the alternativeconstructions. A construction that results in hardship, seriousinconvenience, injustice, absurdity, or anomaly or which leadsto inconsistency or uncertainty and friction in the system whichthe statute purports to regulate has to be rejected andpreference should be given to that construction which avoidssuch results.

g. This observation was quoted with approval by the SupremeCourt in paragraph 17 of its decision in D. Saibaba v Bar Council ofIndia & Anr.[4].

3 12th Edition of ‘Principles of Statutory Interpretation’ at page 1314 (2003) 6 SCC 186

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Ah. Therefore, the aforementioned observation would also lendsupport to the submission of the appellants in as much as it would bemore convenient for litigants within the territory of the common HighCourt to approach the Gauhati High Court for seeking transfer.

7. Mr. Goswami also cited three other decisions. The first is aBdecision of the larger bench of the Gauhati High Court in Megha Jainvs. Kartik Jain[5]. This decision has overruled Pomi Sengupta (supra),on which the impugned judgment and order is premised. The second is adecision of the (undivided) Andhra Pradesh High Court in ChalasaniDeepthi vs. Chalasani Krishna Chaitanya[6]and the last a decision ofthe Bombay High Court in Irene Blanch Khera vs. Glenn John Vijay[7].C

8. Based on his aforesaid submissions, Mr. Goswami urged us toset aside the order under challenge and to remit the matter to the GauhatiHigh Court for fresh consideration of the application of the appellantsunder section 24 of the CPC. In the alternative, he submitted that theapplication under section 25 may be considered by us on its own merits.D

CONTENTIONS OF THE RESPONDENTS 1 TO 3

9. Opposing the appeal, Mr. Balgopal, learned senior counsel forthe State of Nagaland and its officers, contended as follows:

a. A brief issue with regard to the scope and ambit of section 24Evis-à-vis section 25 of the CPC has arisen before this Court in the instantcase in view of the peculiar circumstances wherein two States share acommon High Court as provided under Article 231 of the Constitution ofIndia.

b. Section 24(1)(b), CPC gives power to the High Court toFwithdraw any suit, appeal or other proceeding pending in any courtsubordinate to it and to transfer the same for trial or disposal to anyCourt subordinate to it which is competent to try or dispose of the same.As the State of Nagaland does not have a separate High Court,consequently all courts functioning in the State of Nagaland aresubordinate to the Gauhati High Court, being the common High CourtGfor the States of Assam, Nagaland, Mizoram and Arunachal Pradesh.

c. However, in order to appreciate whether the common HighCourt has the power to withdraw any suit, appeal or other proceeding5 (2019) 6 GLR 3796 2015 SCC OnLine Hyd 978H7 2018 (6) Mh. L.J. 199

pending before any Court subordinate to it from one State and to transferthe same to any Court subordinate to it, in another State, the provisionsof both sections 24 and 25 of the Code will have to be examined as itinvolves an inter-State transfer and not an intra-State transfer simplicitor.

d. To appreciate the true import and meaning of the provisions ofsection 25(1), the said provision will have to be read in two parts as itcontains two-fold power to direct any suit, appeal or other proceeding tobe transferred:

i.From one High Court to another High Court; or

ii.From one Civil Court in one State to another Civil Court inany other State.

This interpretation is substantiated by the observation made bythis Court in Durgesh Sharma (supra).

e. Section 25 is the only provision in the CPC, which refers totransfer of a case from a Civil Court in one State to a Civil Court inanother State. Incidentally, the appellants themselves are asking for thisrelief.

f. Report of the Joint Committee, Lok Sabha of the Code of CivilProcedure (Amendment) Bill 1974 which was passed on 1[st] April, 1976shows that this issue was raised by one of the North-Eastern States, i.e.,State of Meghalaya with regard to conflict between sections 24 and 25insofar as the North-East area is concerned and reading of the minutessuggests that the Committee assured to look into the issue.

g. In view of the specific provision in section 25(1) of the CPC, itis only the Supreme Court and no other court which has the power todirect transfer of the suit instituted by the appellants from the Civil Courtin Dimapur, Nagaland to the Civil Court in Guwahati, Assam, if at all anyground is set up therefor.

10. In view of the aforesaid contentions, it was submitted by Mr.Balgopal that the impugned judgement needs no interference and deservesto be upheld.

ARGUMENTS OF THE RESPONDENTS 4 AND 5

11. Mr. Sharma, learned counsel appearing for the respondents 4and 5, advanced the following arguments:

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a. Power to effect inter-State transfer of any suit, appeal or otherproceeding is not available to be exercised by a High Court in terms ofsection 24 of the CPC since such power is expressly and exclusivelyprovided in section 25 thereof, to be exercised only by the SupremeCourt.

Bb. Reliance placed by the learned senior counsel for the appellantson Durgesh Sharma (supra) is misplaced since that case isdistinguishable. The observations in paragraph 47 were made by thisCourt to decide the issue captured in paragraph 3 and this Court had nooccasion to examine the issue in the light as it has occurred in the presentcase. It is trite to submit that such an observation could at best be treatedCas obiter dicta (defined as an incidental remark of a Judge’s expressionof opinion uttered in court or in a written judgment, but not essential tothe decision and therefore not legally binding as a precedent).

c. Be that as it may, what has been held by this Court in paragraph57 of Durgesh Sharma (supra) nullifies the point sought to be urged onDthe behalf of the appellants.

d. In Megha Jain (supra), the Division Bench of the GauhatiHigh Court has held that it has jurisdiction to exercise powers undersection 24 of the CPC read with section 23(1) and/or section 23(2) thereofto transfer a suit, appeal or any other proceeding from one of the fourEStates under its jurisdiction to any other State under its jurisdiction fortrial. In paragraph 9 of Megha Jain (supra), reference has been madeto section 24 (1) (a) of the CPC to arrive at the conclusion that the HighCourt or the District Court may, at any stage, transfer any suit etc.pending before it to any court subordinate to it and that a transfer petitionFseeking transfer from one State to any of the four States shall bemaintainable thereunder. The abovesaid conclusion is not the correctexposition of law. Sections 22 to 24 of the CPC and section 25 thereofare two different codes within the CPC and there is no overlapping inrelation to the domain where these two sets of codes operate.

e. A plain reading of section 22 of the CPC would show that thewords “several Courts” occurring in its last has been continued in section23, while no such co-relation exists either between sections 22 and 25 orsections 23 and 25. Therefore, application of section 23 together withsection 25 appears completely faulty. Also, in relation to the exercise ofpower under section 24, the said power has been made available to even G

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a District Court, which makes it amply clear that the power under section24 is a continuation of sections 22 and 23 only.

f. Further, the power of transfer of suits under section 22 can beexercised, “(W)here a suit may be instituted in any one of two ormore courts and is instituted in one of such courts”. And this powerunder section 22 is explained in section 23 for the purposes as to whichcourt an application for transfer may lie. Further, after the application ismade, under section 24, such power is explained as to how the same canbe exercised. Therefore, section 22 provides which of the suits, section23 provides which of the courts and section 24 provides how suchtransfers can be effected.

g. In contrast to the above, the power under section 25 has beenclearly defined and the same does not have any mention in sections 22to 24 in the same manner as it occurs in section 25, categoric and precise.Therefore, the legislative intent is clear that only under section 25 of theCPC a direction that any suit, appeal or other proceeding may betransferred from a Civil Court in one State to a Civil Court in any otherState and that can only be made by this Court.

12. Resting on the aforesaid arguments, Mr. Sharma too urgedthat no case for interference had been made out by the appellants andthe appeal deserves dismissal.

THE RELEVANT PROVISIONS OF LAW

13. Sections 24 and 25 of the CPC being at the heart of the debate,the same need to read carefully. To the extent relevant, the said provisionsread as follows:

“24. General power of transfer and withdrawal.— (1) On theapplication of any of the parties and after notice to the parties andafter hearing such of them as desire to be heard, or of its ownmotion, without such notice, the High Court or the District Courtmay, at any stage—

(a) transfer any suit, appeal or other proceeding pendingbefore it for trial or disposal to any court subordinate to it andcompetent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pendingin any court subordinate to it, and A

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A(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any courtsubordinate to it and competent to try or dispose of thesame; or

(iii) retransfer the same for trial or disposal to the courtfrom which it was withdrawn.

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(2) Where any suit or proceeding has been transferred orwithdrawn under sub-section (1), the court which thereafter triessuch suit may, subject to any special directions in the case of anorder of transfer, either retry it or proceed from the point at whichCit was transferred or withdrawn.

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“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 SupremeCourt may, at any stage, if satisfied that an order under this sectionis expedient for the ends of justice, direct that any suit, appeal orother proceeding be transferred from a High Court or other CivilCourt in one State to a High Court or other Civil Court in anyother State.

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14. Prior to its amendment in 1976, section 25 of the Code read asfollows:

“25. Power of State Government to transfer suits.—(1) WhereFany party to a suit, appeal or other proceeding pending in a HighCourt presided over by a Single Judge objects to its being heardby him and the Judge is satisfied that there are reasonable groundsfor the objection, he shall make a report to the State Government,which may, by notification in the Official Gazette, transfer suchGsuit, appeal or proceeding to any other High Court.

Provided that no suit, appeal or proceeding shall be transferred toa High Court without the consent of the State Government of theState in which that High Court has its principal seat.”

15. Since acceptance of the arguments of Mr. Balgopal and Mr.HSharma would result in denuding a common High Court of the jurisdiction to even entertain an application under section 24 of the CPC for transferof a suit from a Civil Court in one State to a Civil Court of another State,notwithstanding that exercise of jurisdiction by such High Court extendsto both such States, it is absolutely necessary to consider Chapter V ofthe Constitution of India titled “(T)he High Courts in the States” andmore particularly the terms of Articles 214, 231, 227, 235 and 228 which,to our mind, are of utmost relevance for deciding the legal issue. At thesame time, having regard to the terms of pre-amended section 25 of theCPC, a peep into the pages of history as to how the Gauhati High Courtbecame the common High Court for the State of Assam and the otherStates seems to be imperative.

16. Article 214 is clear that there shall be a High Court for eachState. Article 231, inserted in the Constitution by the Constitution (SeventhAmendment) Act, 1956, is an ordainment that notwithstanding anythingcontained in the preceding provisions of Chapter V, Parliament may bylaw establish a common High Court for two or more States or for two ormore States and a Union territory. Article 227 is the recognition of thepower of superintendence of every High Court over all courts and tribunalsthroughout the territories in relation to which it exercises jurisdiction.The control over all District Courts and courts subordinate thereto, interms of Article 235, vests in the High Court. One other importantprovision is Article 228. Article 228 empowers the High Court, subjectto its satisfaction that a case pending in a court subordinate to it involvesa substantial question of law as to the interpretation of the Constitutionand the determination of which is necessary for the disposal of the case,to withdraw the case and (a) either dispose of the case itself, or (b)determine the said question of law and return the case to the court fromwhich the case has been so withdrawn together with a copy of itsjudgment on such question, whereupon the said court shall proceed todispose of the case in conformity with such judgment.

ORIGIN AND EVOLUTION OF THE COMMON HIGHCOURT

17. We now move on to note the origin and evolution of the commonHigh Court, i.e., the Gauhati High Court and the trajectory that it hasbeen ordained to follow in relation to the territories over which it exercisesjurisdiction.

18. The precursor of the Gauhati High Court was the High Courtof Assam, which was established on 5[th] April, 1948 in terms of the Assam AB

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AHigh Court Order, 1948 (for brevity ‘the 1948 Order’) made by theGovernor General in exercise of power conferred by section 229 of theGovernment of India Act, 1935 and as adopted by the India ProvincialConstitution (Amendment) Order, 1948. In terms of paragraph 4 thereof,the High Court of Assam was conferred, in respect of the territories forthe time being included in the province of Assam, all such original, appellateBand other jurisdiction as, under the law in force immediately before theprescribed day, was exercisable in respect of the said territories or anypart thereof, by the High Court in Calcutta or by the Governor of Assamexercising the functions of a high court.

19. In 1962, by an Act of Parliament titled the State of NagalandCAct, 1962 (for brevity ‘the 1962 Act’), the State of Nagaland was formed.While sub-section (1) of section 13 of the 1962 Act ordained that thereshall be a common high court called the High Court of Assam andNagaland, sub-section (3) thereof provided that expenditure in respectof the salaries and allowances of the Judges of the common High Court Dshall be allocated between the States of Assam and Nagaland in suchproportion as the President may by order determine.

20. The 1962 Act was followed by the North-Eastern Areas(Reorganisation) Act, 1971 (for brevity ‘the 1971 Act’). This enactmentcontained provisions for the establishment of the States of Manipur andETripura and for the formation of the State of Meghalaya, and the Unionterritories of Mizoram and Arunachal Pradesh, by reorganizing the existingState of Assam. Part IV of the 1971 Act titled “High Court” containedsections 28 to 43. Sections 28 and 29, being relevant are quoted below:

“28. Common High Court for Assam, Nagaland, Meghalaya,FManipur and Tripura.— (1) On and from the appointed day,—(a) the High Court of Assam and Nagaland shall cease to functionand is hereby abolished; (b) there shall be a common High Court for the States of Assam,Nagaland, Meghalaya, Manipur and Tripura to be called the GauhatiGHigh Court (the High Court of Assam, Nagaland, Meghalaya,Manipur and Tripura);

(c) the Judges of the High Court of Assam and Nagaland holdingoffice immediately before that day shall, unless they have electedotherwise, become on that day the Judges of the common HighHCourt:

(2) Nothing in clause (a) of sub-section (1) shall prejudice or affectthe continued operation of any notice served, injunction issued,direction given or proceedings taken before the appointed day bythe High Court of Assam and Nagaland under the powers thenconferred upon that Court.”

“29. Jurisdiction of the common High Court.—On and from theappointed day, the common High Court shall have, in respect ofthe territories comprised in the States of Assam, Manipur,Meghalaya, Nagaland and Tripura, all such jurisdiction, powersand authority as under the law in force immediately before theappointed day, are exercisable in respect of those territories bythe High Court of Assam and Nagaland or the Court of the JudicialCommissioner for Manipur, or the Court of the JudicialCommissioner for Tripura, as the case may be.”

21. With the enactment of the State of Arunachal Pradesh Act,1986 and the State of Mizoram Act, 1986, two new States were born.Section 18 of the former and section 15 of the latter legislation, more orless commonly worded, when read together would evince that a commonHigh Court for the States of Assam, Nagaland, Meghalaya, Manipur,Tripura, Mizoram and Arunachal Pradesh to be called the Gauhati HighCourt (the High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura,Mizoram and Arunachal Pradesh) came into existence. The commonthread that runs through the developments of 1962, 1971 and 1986, notedabove, is that as and when the jurisdiction of the High Court of Assamand thereafter the Gauhati High Court came to be enlarged and extendedto States other than Assam, all seven sister States in the North- Easternpart of the country agreed to bear the expenditure in respect of thesalaries and allowances of the Judges of the common High Court asshall be allocated amongst the States in such proportion by an order ofthe President.

22. In view of the provisions of the 1971 Act, till little over adecade back, the Gauhati High Court was the common High Court forthe seven sister states. The jurisdiction of the said High Court extendedthroughout the territories of Assam, Nagaland, Tripura, Manipur,Meghalaya, Mizoram and Arunachal Pradesh.

23. However, the 1971 Act came to be amended by the North-Eastern Areas (Re-organisation) and Other Related Laws (Amendment)

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AAct, 2012 (for brevity ‘the Amendment Act’). It established separateHigh Courts for the States of Meghalaya, Manipur and Tripura.Accordingly, the definition of “common High Court” in section 2(d) ofthe 1971 Act was amended. Apart from insertion of sections 28A to28K between sections 28 and 29, the Amendment Act, inter alia, alsointroduced a proviso in sub-section (1) of section 28, reading as follows:B

“Provided that on and from the commencement of the North-Eastern Areas (Reorganisation) and Other Related Laws(Amendment) Act, 2012, the common High Court shall be theHigh Court for the States of Assam, Arunachal Pradesh, Mizoramand Nagaland and shall cease to have its jurisdiction, powers andCauthority for the States of Meghalaya, Manipur and Tripura.”

24. Hence, today, the Gauhati High Court is the common HighCourt exercising jurisdiction throughout Assam, Nagaland, Mizoram andArunachal Pradesh; a fortiori, all Civil Courts in these four States aresubordinate to the same High Court, i.e., the Gauhati High Court. Thus,Dit is a High Court which earlier exercised its jurisdiction over sevendifferent States and is presently exercising jurisdiction over four differentStates. This, by itself, is a unique feature which stands unmatched in thejudicial annals of the country post-independence.

25. We can take judicial notice that Judges of the Gauhati HighECourt in the past have been elevated from amongst advocates and judicialofficers hailing from the aforesaid States.

26. Therefore, so far as judicial administration is concerned, interms of Article 231 of the Constitution, the Gauhati High Court is theHigh Court, inter alia, for the State of Assam as well as for the State ofFNagaland.

PRE-AMENDED SECTION 25, CPC

27. Before proceeding further, we may now refer to the pre-amended section 25 of the Code for the purpose of understanding whatwas the mischief that the Parliament intended to address by radicallyGaltering its relevant terms resulting in its substantial substitution. Bareperusal of the pre- amended provision clearly reflects that its scope andapplicability were rather limited. Unless the State Governments weread idem, a transfer of a suit, appeal or other proceeding from a CivilCourt in one State to a Civil Court in another State was not a permissibleHoption. That apart, such transfer of a suit, appeal or other proceeding instead of being effected by a judicial act was left to an administrativeact and, that too, only if the two State Governments were in agreement.The Law Commission having recommended an amendment, section 25of the CPC came to be amended by the Amendment Act 104 of 1976. Acontrast of the pre-amended and present version of section 25 is clearlysuggestive of the distinctive variance qua the authority to exercise thepower of transfer. At this juncture, the Statement of Objects and Reasons(for brevity ‘the SOR’) for amending section 25 may also be noted:

“Clause 12.—Section 25 of the Code empowers the StateGovernment to transfer suits, etc. in certain circumstances fromthe High Court exercising jurisdiction in the State to another HighCourt. This section is very narrow in scope as it provides only forthe transfer of suit, appeal or other proceeding pending in a HighCourt presided over by a Single Judge. Besides, the StateGovernment, does not seem to be an appropriate agency forexercising the power of transfer. Section 25 is, therefore, beingsubstituted by a new section which provides for the transfer tothe Supreme Court the existing power vested with the StateGovernment and to confer on the Supreme Court such widepowers of transfer as it has in criminal cases under Section 406of the Code of Criminal Procedure, 1973. Further, the new sectioncovers transfer of cases from or to the Original Side of a High Court to or from any other civil court. The new section is thuswider in scope than Section 406 of the Code of Criminal Procedure,1973.”

28. Thus, with the amendment of section 25, a serious impedimentin administration of justice by the courts of law was remedied byconferment of power on this Court to decide on inter-State transfer ofany suit, appeal or other proceeding pending in a Civil Court of one Stateto a Civil Court of another State. Since under the pre-amended section25, such a transfer could be made by the transferor State only if thetransferee State were to consent to it, it was rightly observed in theSOR that it was not the function of the States to decide on such transfer.Though advisedly, we presume, that there is absence of any referencein the SOR about the uncertainty centering around cooperation or thelack of it between the relevant States prior to a transfer of the naturereferred to in section 25 being effected, it does not take too long tocomprehend that Parliament did proceed in the right direction and sought AB

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Ato address the mischief that could ensue if the two States were not onthe same page resulting in depriving a litigant of having his causevindicated. Be that as it may.

CONSIDERATION OF THE DECISIONS

29. Having surveyed the provisions of the Constitution relating tothe High Courts in general and how the Gauhati High Court has takenshape as the common High Court for, inter alia, the States of Assamand Nagaland, it is time to look into the decision in Durgesh Sharma(supra), cited by Mr. Balgopal and by Mr. Goswami as well as the otherdecisions cited by him for the appellants.

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30. In Durgesh Sharma (supra), this Court was seized of thequestion as to whether the High Court of Madhya Pradesh was justified,on an application under section 23 of the Code, in ordering transfer of apetition under section 13 of the Hindu Marriage Act, 1955, instituted bythe appellant-husband in a court in Ujjain, Madhya Pradesh, to a court inDMalegaon, District Nashik, Maharashtra to be tried along with a petitionunder section 9 of the said Act instituted by the respondent-wife.Considering the provisions of law, this Court held as follows:

“46. Having considered the scheme of the Code as amended fromtime to time, in our judgment, the law relating to transfer of casesE(suits, appeals and other proceedings) is well settled. It is found inSections 22 to 25 of the Code and those provisions are exhaustivein nature. Whereas Sections 22, 24 and 25 deal with power oftransfer, Section 23 merely provides forum and specifies the courtin which an application for transfer may be made. Section 23 isnot a substantive provision vesting power in a particular court toForder transfer.

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47. In our considered opinion, where several courts havingjurisdiction are subordinate to one appellate court, an applicationfor transfer may be made to such appellate court and the courtmay transfer a case from one court subordinate to it to anothercourt subordinate to it. Likewise, where such courts aresubordinate to the same High Court, an application may be madeand action may be taken by the High Court transferring a casefrom one court subordinate to it to any other court subordinate tothat High Court. But where such courts are subordinate to differentHigh Courts, it is only the Supreme Court (this Court) which may G

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pass an order of transfer. In other words, if two courts aresubordinate to different High Courts, one High Court has no power,jurisdiction or authority to transfer a case pending in any courtsubordinate to that High Court to a court subordinate to otherHigh Court. It is only the Supreme Court (this Court) which mayorder the transfer.

48. Section 25, as originally enacted in the Code of 1908 and thedecisions prior to the Amendment Act of 1976, have no applicationafter substitution of Section 25 as it stands today. To us, Section23 has no application to such cases and the only provision attractedis Section 25.

49. The language of Section 25 also supports the view which weare inclined to take. Sub-section (1) of Section 25 of the Codeenacts that ‘On the application of a party’, this Court may pass anappropriate order of transfer. Thus, Section 25 is ‘self-containedcode’ and comprises substantive as well as procedural law onthe point. It allows a party to move the Court by making anapplication as also it empowers the Court to make an order oftransfer.

50. The matter can be examined from another angle also. Everycourt has its own local or territorial limits beyond which it cannotexercise the jurisdiction. So far as this Court is concerned, itsjurisdiction is not circumscribed by any territorial limitation and itextends over any person or authority within the territory of India.But, it has no jurisdiction outside the country. So far as a HighCourt is concerned, its jurisdiction is limited to territory withinwhich it exercises jurisdiction and not beyond it. On that analogyalso, a High Court cannot pass an order transferring a case pendingin a court subordinate to it to a court subordinate to another HighCourt. It would be inconsistent with the limitation as to territorialjurisdiction of the Court.

***

54. After the commencement of the Constitution and establishmentof the Supreme Court (this Court), Parliament thought it proper toamend Section 25 of the Code and accordingly, it was substitutedby empowering this Court to order transfer from one High Court A

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[2023] 3 S.C.R.

Ato another High Court or to one civil court in one State to anothercivil court in any other State.

55. It is no doubt true that even when Section 25 in the presentform was substituted by the Amendment Act of 1976, sub-section(3) of Section 23 of the Code has neither been deleted nor amended.BThat, however, is not relevant. Since in our considered view,Section 23 is merely a procedural provision, no order of transfercan be made under the said provision. If the case is covered bySection 25 of the Code, it is only that section which will apply forboth the purposes, namely, for the purpose of making applicationand also for the purpose of effecting transfer. ***”

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31. Durgesh Sharma (supra) is an authority having the effect ofa binding precedent for deciding cases where the High Court for a Stateseeks to transfer a suit, appeal or proceeding from a court subordinateto it to a court subordinate to the High Court for another State. We sharethe views expressed therein. However, having regard to the fundamentalDfactual dissimilarities present in this case, the ratio decidendi ofDurgesh Sharma (supra) while answering the core issue may not applyhere.

32. The decision in Megha Jain (supra) was rendered on areference being made to a larger Bench by another single Judge of theEGauhati High Court, who was not persuaded to agree with the viewtaken by the coordinate bench in Pomi Sengupta (supra). A matrimonialproceeding instituted by the respondent, pending in a court in Aizawl,Mizoram was sought to be transferred to a court in Kamrup, Guwahati,Assam by the petitioner by pursuing the remedy provided by section 24Fof the CPC. This is what the Division Bench, speaking through the ChiefJustice, held:

“9. The constitution of the High Court with its Principal Seat andthe Permanent Benches in the manner, as taken note supra, wouldindicate that all the courts in all the said four States are subordinateGto the Gauhati High Court and since no separate High Courts areestablished in respect of Nagaland, Mizoram and ArunachalPradesh, a provision under the Notification dated 22.6.1990 ismade 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 H

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High Court can exercise its power and jurisdiction over all Courtsin all the four States. If in that light, the provision as contained insection 24 of the CPC, extracted above, is taken note, sub-section(1)(a) would indicate that the High Court or the District Courtmay, at any stage, transfer any suit, appeal or other proceedingpending before it for trial or disposal to any court subordinate to itand competent to try or dispose of the same. If the said provisionis kept in view and the above noted discussion relating to theestablishment of the High Court and the Permanent Bench is takennote and in that circumstance, when the subordinate court in theState of Mizoram as also the subordinate court in the State ofAssam is subordinate to the Gauhati High Court, a transfer petitionfiled under section 24 of the CPC before this court, namely, theGauhati High Court, even for transfer of a case from thesubordinate court in any of the four States, as indicated above, tothe other State would be maintainable from the very provision ascontained in section 24 itself. In such circumstance, the questionof filing a petition under section 25 of the CPC would not arisesince there are no separate High Courts exercising jurisdictionover the States referred to above. If in that background, theobservation, as contained in Smt. Pomi Sengupta (supra) is takennote, the learned Single Judge was not justified in arriving at theconclusion that if a petition under section 24 of the CPC isentertained, it would amount to adding words to the provision.”

33. Chalasani Deepthi (supra) arose out of an application filedby the petitioner-wife seeking withdrawal and transfer of a suit forrestitution of conjugal rights, instituted by the respondent-husband in theFamily Court, Ranga Reddy District, Telengana to the court of the Judge,Family Court, Vijaywada, Andhra Pradesh. A learned Judge of the(undivided) Andhra Pradesh High Court having heard the parties andthe Advocates General of the States of Telengana and Andhra Pradeshand upon consideration of the provisions of the Andhra PradeshReorganisation Act, more particularly sections 30 and 31 thereof, togetherwith sections 24 and 25 of the CPC as well as the decision in DurgeshSharma (supra), held that both the courts being subordinate to the AndhraPradesh High Court, which was till then the common High Court for theStates of Telangana and Andhra Pradesh, the application for transferunder section 24 was maintainable.

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A34. A learned Judge of the Bombay High Court, while followingthe decision in Chalasani Deepthi (supra) allowed the application undersection 24 of the CPC filed by the petitioner- wife seeking transfer of amatrimonial petition pending on the file of the Civil Judge in the court atMapusa, North Goa, instituted by the respondent-husband, to the FamilyCourt at Bandra, Mumbai, Maharashtra. Incidentally, the Bombay HighBCourt is the common High Court for the States of Maharashtra and Goaas well as the Union territories of Dadra & Nagar Haveli and Daman &Diu. The learned Judge spurned the objection of the respondent-husbandthat the transfer application ought to have been filed in the BombayHigh Court at Goa and not at its principal seat in Mumbai, for the reasonsCrecorded in the decision. Significantly, no objection was raised in thiscase that transfer ought to have been prayed by filing an applicationbefore this Court under section 25 of the CPC.

35. There is, therefore, a host of judicial authorities at the level ofthe High Courts that section 25 of the CPC would not bar entertainmentDof an application under section 24 thereof by a High Court, even for aninter-State transfer, if such High Court is the common High Court fortwo or more States and transfer, as prayed, is not to a civil court beyondthe said High Court’s jurisdiction.

ANALYSIS AND DECISION

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36. As noted, the appellants as plaintiffs have instituted the civilsuit in the court of the District Judge, Dimapur, Nagaland and now seektransfer of such suit to the court of the District Judge, Guwahati, Assam.Such a transfer, if allowed, no doubt would constitute an inter-Statetransfer. Insofar as inter-State transfer of any suit, appeal or otherFproceeding is concerned, a plain and literal reading of section 25 of theCPC does suggest that the power to so transfer lies with the SupremeCourt only. Paragraph 54 of Durgesh Sharma (supra), heavily reliedupon by Mr. Balgopal, lends support to his contentions. Having regard tothe scheme of section 25 of the CPC and on its plain terms, read withDurgesh Sharma (supra), Mr. Balgopal seems to have a point thatGsuch an inter-State transfer of the nature prayed by the appellants cannotbe ordered under section 24. However, something more seems to bevisible when we put on our judicial lens to resolve the issue.

37. Section 24 of the CPC is a general power of ‘transfer andwithdrawal’ capable of being invoked by the High Courts at any stageHeither suo motu without notice or on the application of any of the parties

after notice, whereas section 25 confers exclusive power on the SupremeCourt, on the application of either of the parties and after notice, totransfer suits, etc. from the Courts stated therein. While section 24 ispart of the general law, section 25 is the special law. Clause (b) of sub-section (1) of section 24, which is relevant for the present case, opensup an avenue for the High Court, upon reaching a satisfaction that acase for transfer has been made out, to withdraw any suit, appeal orother proceeding pending in any court subordinate to itand (i) to try anddispose of the same; or (ii) to transfer the same for trial or disposal toany court subordinate to it and competent to try or dispose of the same;or (iii) to retransfer the same for trial or disposal to the court from whichit is withdrawn; whereas, section 25 empowers the Supreme Court on asatisfaction being recorded that an order is expedient for the ends ofjustice to direct that any suit, appeal or other proceeding be transferred(i) from one High Court to a High Court; and (ii) from other Civil Courtin one State to other Civil Court in any other State. The text of the twosections, therefore, makes the position clear about the powers reservedfor the High Courts and the Supreme Court to transfer suits, appeal orother proceedings. Law is well-settled, and we may profitably refer tothe decision in Amarendra Pratap Singh vs. Tej Bahadur Prajapati[8],that a general law cannot defeat the provisions of a special law to theextent to which they are in conflict; else, an effort has to be made atreconciling the two provisions by homogenous reading. What, therefore,needs to be seen and appreciated is whether there is any conflict orinconsistency between the general law (section 24) and the special law(section 25) for the former to yield to the latter, and ascertain whetherthe High Court still has the jurisdiction under the general law to order aninter-State transfer notwithstanding the special law vesting the SupremeCourt with such power of transfer. There has to be an inconsistencybetween the two so as to apply the maxim generalia specialibus nonderogant. The jurisdiction conferred on the Supreme Court pursuant tothe amendment of section 25 of the CPC in 1976 though special, invocationof the jurisdiction of the High Court under section 24 may not come inconflict and defeat section 25, if jurisdiction is still found available to beexercised in a given case under the former without doing violence to thelatter.

38. In our considered opinion, section 25 of the CPC would operateas a bar in cases like the one in Durgesh Sharma (supra); however,8 (2004) 10 SCC 65

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Asection 25 of the CPC ~ notwithstanding the scheme envisaged in it ~does not operate as a complete bar to denude a common High Court,like the Gauhati High Court, to entertain an application under section 24thereof even for an order to transfer a suit, appeal or other proceedingfrom one State to another State, provided the States concerned are twoof the four States in relation to which such High Court still exercisesBjurisdiction. This is an opinion formed by us, for the reasons, which weventure to assign now.

39. From the factual matrix vis-à-vis the Constitutional andstatutory provisions, there can be no cavil that the courts and tribunals inthe States of Assam, Nagaland, Mizoram and Arunachal Pradesh areCnot only under the superintendence of the Gauhati High Court in termsof Article 227, all district courts and courts subordinate thereto in suchStates are subject to the control of the Gauhati High Court under Article235 as well as subordinate to the same High Court in terms of section 3of the CPC. Section 25 has been inserted in the CPC with a definiteDpurpose of ensuring that no High Court transfers a suit, appeal or otherproceeding pending in a Civil Court in one State to a Civil Court in anotherState. The reason for this is that the High Court to which the applicationfor transfer is made does have the power in law to transfer a suit, appealor other proceeding to a Civil Court subordinate to it but it does not haveany power in law to transfer any of the above to a Civil Court which isEsubordinate to another High Court. The same situation that DurgeshSharma (supra) had to deal with, where the Civil Courts subordinate tothe High Court of Madhya Pradesh and the Bombay High Court wereinvolved. This Court had the occasion to hold that if two courts aresubordinate to different High Courts, one High Court has no power,Fjurisdiction or authority to transfer a case pending in any court subordinateto that High Court to a court subordinate to another High Court and it isonly the Supreme Court which may order the transfer. The reason forsuch conclusion seems to be obvious that the High Court, to which anapplication for transfer is made, does neither enjoy any power of superintendence under Article 227 over the Civil Court to which theGtransfer is sought nor can such Civil Court be said to be a court overwhich the High Court exercises any control of the nature referred to inArticle 235. Also, in such a case, the Civil Court beyond the territory inrelation to which the High Court exercises jurisdiction cannot beconsidered to be a court subordinate to such High Court in the senseHsection 3 of the CPC is to be understood.

40. The creases that were sought to be ironed out by radicallyaltering section 25 of the CPC and presenting it in an altogether newavatar have to be given due consideration in the light of the SOR and theprovisions of Chapter V of the Constitution. Bestowing such consideration,we hold that what is of primordial importance to attract section 25 is theinvolvement of two civil courts (transferor and transferee) in theproceedings for transfer, which are not only situate in two different States,but are also subject to the power of judicial superintendence andadministrative control of the High Courts of each such State.

41. While focusing on section 25, one cannot be completely obliviousof the terms of section 24(1)(b)(ii). As and when it is approached withan application under section 24 for transfer, the High Court, subject to itssatisfaction that the facts and circumstances do warrant an order to bemade, is empowered to “transfer … to any Court subordinate to it”.These words are of immense significance. In directing a transfer, theHigh Court can transfer a suit, appeal or other proceeding to “any Court”but bearing in mind the fetter that any such court, to which the relevantcase or matter is proposed or sought to be transferred, must besubordinate to it and otherwise competent to deal with the subject matter;if such court is either not subordinate or not competent, the power is notavailable to be exercised. However, there is no such fetter in section 24that power under sub-clause (ii) of clause (b) of sub-section (1) thereofcannot be exercised if the transferee court, though subordinate to theHigh Court, is situate in a different State. Similar is the case with clause(a) of sub-section (1) of section 24. The power is available so long theCivil Court continues to remain subordinate to it under Article 227 readwith Article 235 and under section 3 of the CPC. To this extent, the High

Court enjoys a supreme power which is not even subject to the power ofthe Supreme Court under section 25. The only caveat is that this powerof transfer under section 24(1)(a) and 24(1)(b)(ii), however, cannot beexercised by the Gauhati High Court, say for transfer of a civil suit froma court in Assam or Nagaland to a Civil Court in Tripura or Manipur orMeghalaya because the said States, from 2012, are no longer part of theGauhati High Court and are since having High Courts of their own.

42. It is time all concerned realize that a High Court ~ howsoeverbig or small, old or new ~ is as much a Constitutional Court as this Courtis and enjoys wide ranging powers vested in it by law. No doubt, thepower under section 25 is a special power, but the common High Courts AB

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Aof the country ought not to read section 24 of the CPC in a manner as ifthe power of the Supreme Court under section 25 to order an inter-Statetransfer is available to be exclusively exercised by it in all cases of inter-State transfer, thereby denuding the common High Courts of the countryof their jurisdiction by mere reference to involvement of an inter-Statetransfer and without anything more being looked at.B

43. The States of Assam and Nagaland by reason of the provisionsof the 1962 Act, then the 1971 Act and finally the Amendment Act havethe Gauhati High Court as their common High Court and it is the GauhatiHigh Court that enjoys power of judicial superintendence over all courtswithin the territories of these two States. Gauhati High Court alsoCexercises administrative control over all district courts and courtssubordinate to them. Although the States of Assam and Nagaland in thepolitical map of India have well demarcated areas, for the purpose ofadministration of justice, both States are mandatorily subject to thejurisdiction of the Gauhati High Court. Having regard to the special natureof jurisdiction that is vested in a common High Court like the GauhatiDHigh Court, there cannot be a truncation of the power available underclauses (a) and (b) of section 24(1), which includes suo motu power.

44. Secondly, we are inclined to the view that should the contentionadvanced by Mr. Balgopal be accepted, the same is bound to lead toanomalous and incongruous results. If a common High Court, such asEthe Gauhati High Court, is satisfied that a situation for withdrawing acivil suit from a court, say in Nagaland, does exist, section 24(1)(b)(i) ofthe CPC confers power on the Gauhati High Court to withdraw suchsuit and dispose of the same itself. We are conscious that the verbemployed in the first part of section 24(1)(b(i) is ‘withdraw’ and not‘transfer’; also, that clause (b) of sub- section (1) of section 24 employsFthe verbs ‘withdraw’, ‘transfer’ and ‘retransfer’ in the three sub-clausesfor achieving the specified ends. However, would it mean that withdrawalof a case does never involve a transfer? The verb ‘transfer’, inter alia,means to move, or to make somebody/something move, from one placeto another. Once, for whatever reason, the movement of a file from oneGplace to another is involved, may be by reason of withdrawal, a transferin the broader sense does take place. Now, the principal seat of theGauhati High Court being at Guwahati, in the State of Assam, were toexercise the power conferred by section 24(1)(b(i), the effect thereofupon such a withdrawal is that the suit would stand transferred to theprincipal seat at Guwahati from the Civil Court in Nagaland and, possibly,Hassigned a separate registration number for the purpose of administrative

convenience, whereafter three options in terms of section 24(1) (b) areopen to the High Court for further course of action for taking the suit toits logical conclusion. Once the suit is withdrawn from the court inNagaland and placed before the High Court at its principal seat inGuwahati, Assam, would not that be a case of an inter-State transfer?The answer cannot possibly but be in the affirmative. The other aspectrequiring consideration in this regard is whether disposal of the civil suitby the Gauhati High Court, if the same were withdrawn from thesubordinate court, constitute a transfer from one Civil Court to anotherCivil Court. The High Courts are Constitutional Courts and not a ‘CivilCourt’ in the sense the term is understood, so to encompass a transferfrom one Civil Court to another Civil Court. However, if at all such a suitwere withdrawn and finally disposed of by the Gauhati High Court at itsprincipal seat, it would necessarily be in the exercise of its ordinary civiljurisdiction and the procedure to be followed would undoubtedly be guidedby the provisions of the CPC. In a sense, the High Court would step intothe shoes of the Civil Court from which the suit has been withdrawn.Could the provisions in section 25 of the CPC, in such circumstances, becited to abrogate the Constitutional and statutory power of the GauhatiHigh Court to withdraw a civil suit from a Civil Court in Nagaland and todecide the same? In course of hearing, we had invited the attention ofMr. Balgopal to this situation and sought his response. He could nothave and rightly did not dispute that in such a situation, the power vestedin the Gauhati High Court by the Constitution as well as the CPC cannotbe abrogated. Thus, exercise of the power that section 24(1)(b)(i) conferson the Gauhati High Court in a given case, would ultimately entail atransfer of the civil suit from the State of Nagaland to the High Court,having its principal seat at Guwahati in the State of Assam. Such asituation is not and cannot be controlled by section 25, and on aharmonious reading of sections 24 and 25, it has to be held that section25 does not in all cases fetter the power of a common High Court toorder inter-State transfer of a suit, appeal or other proceeding. Otherwise,it would be a fallacy to believe that while an inter-State transfer wouldbe permissible in terms of sub-clause (i) but not sub-clause (ii) of clause(b) of sub-section (1) of section 24. We reiterate, section 25 wouldessentially have to be read as barring transfer of any suit, appeal orother proceeding from a Civil Court in one State to a Civil Court inanother State if such States have their own High Courts but not in thecase of a common High Court like the Gauhati High Court.

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A45. A similar power of withdrawal of any case involving, interalia, a substantial question of law as to interpretation of the Constitutionis conferred on the Gauhati High Court by Article 228 of the Constitution.If a situation of the nature contemplated by Article 228 does exist, theprincipal seat of the Gauhati High Court at Guwahati may withdrawsuch case from any of the three States of Nagaland, Mizoram andBArunachal Pradesh and decide which of the two courses of action is tobe opted. That would also constitute an inter-State transfer. Obviously,section 25 cannot operate as a bar for the Gauhati High Court to exercisea power conferred on it by the Constitution.

46. Finally, in our opinion, an approach to construe section 25 ofCthe CPC has to be fair, pragmatic, reasonable and realistic. Anyconstruction of section 25 which would impede “access to justice”,considered to be a Fundamental Right, has to be eschewed. A narrowinterpretation of section 25 imposing a bar for entertainment of anapplication under section 24 for transfer of a suit, appeal or otherproceeding by a common High Court like the Gauhati High Court inter-Dse the four States in relation to which it exercises jurisdiction could placea heavy burden and might pose an insurmountable obstacle for litigantsof the far-flung areas of the North-East, if they were made to approachthis Court for such transfer on the specious ground that the Civil Courtto which the same is proposed to be transferred is in a State other thanEthe State in which the suit has been instituted. An interpretation of thelaw that seeks to address the mischief, that is consistent with theConstitution and promotes constitutional objectives and that whichresponds to the needs of the nation must be adopted. If “access to justice”has to be real, it becomes the moral responsibility of the Supreme Court,the supreme guardians/protectors of the rights of people guaranteed byFthe Constitution and the laws, not to construe the substantive part insection 25 of the Code in a pedantic manner to bring about a situationthat would thwart the initiative of making “access to justice” real.

47. What remains is the contention advanced by Mr. Sharma. Weare not impressed, to say the least. Although sections 22 to 25 of theGCPC deal with transfers, sections 22 and 23 can be invoked in situationsof the nature contemplated in section 22 by a defendant, and by noneelse, and the court which is empowered to entertain such an applicationis the court referred to in section 23. Section 22, in our view, permitstransfer on application of the doctrine of forum conveniens and it hasno applicability on facts and in the circumstances where the applicationHfor transfer is at the instance of the plaintiffs.

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CONCLUSION

48. In view of the aforesaid discussions, the issue is answered byconcluding that:

(i) a true and proper interpretation of section 25 of the CPCleads us to the conclusion that the same applies to inter-State transfer of a suit, appeal or other proceeding whereBboth States have a High Court in terms of Article 214 ofthe Constitution and not to a transfer where both Stateshave a common High Court under Article 231 thereof; and

(ii) the power under section 24 of the CPC can be exercisedby the High Court even for inter-State transfer of a suit,Cappeal or other proceeding, if it is the common High Courtfor two or more States under Article 231 of the Constitutionand both the Civil Courts (transferor and transferee) aresubordinate to it.

The questions framed at the beginning of this judgment areanswered accordingly.

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49. The sequitur of this discussion, with respect, is that the GauhatiHigh Court while rendering the judgment and order under challengeproceeded on an erroneous approach, and such approach has also beenfound to be flawed in Megha Jain (supra). The impugned judgment andorder being unsustainable in law has to be and is, accordingly, set asideand the civil appeal stands allowed. The Gauhati High Court shall nowproceed to decide the application under section 24 of the CPC afresh,on its own merits.

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50. In view of the aforesaid order, the transfer petition under section25 of the CPC is rendered infructuous; hence, it stands dismissed.

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51. We request the Gauhati High Court to assign reasonable priorityto the application under section 24 of the CPC and to dispose of thesame as early as possible, subject to its convenience.

52. Parties shall bear their own costs.

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Ankit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Appeal allowed.

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