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“HCs cannot transfer civil cases outside State”

J. Venkatesan

New Delhi: A High Court, exercising its jurisdiction in a State, has no power or authority to transfer civil suits, appeals and other proceedings, including matrimonial cases, from one subordinate court in that State to another subordinate court in another State.

“If two courts are subordinate to different High Courts, one High Court has no power, jurisdiction or authority to transfer a case pending in any court subordinate to that High Court to a court subordinate to other High Court. It is only the Supreme Court [this Court] which may order the transfer,” said a Bench consisting of Justices C.K. Thakker and D.K. Jain.

The Bench said that “by this decision it is overruling all previous decisions of various High Courts wherein the respective High Courts had assumed the power to transfer civil proceedings to other States.”

Writing the judgment, Justice Thakker said: “It is wrong to presume that Section 23 of the Civil Procedure Code is a substantive provision which authorises High Courts to transfer civil cases outside a State as held by the High Court [concerned] in various decisions so far. Under the amended [1977] provision of Section 25 of the Code, it is only the Supreme Court which has the power and authority to transfer a case, proceedings or trial from one State to another State.”

The Bench said: “Every court has its own local or territorial limits beyond which it cannot exercise the jurisdiction. So far as this court is concerned, its jurisdiction is not circumscribed by any territorial limitation and it extends over any person or authority within the territory of India. But, it has no jurisdiction outside the country. So far as a High Court is concerned, its jurisdiction is limited to territory within which it exercises jurisdiction and not beyond it.”

In the instant case, the appellant Durgesh Sharma was married to Jayshree Sharma (respondent) in May 1989. After the marriage, they lived in Ujjain in Madhya Pradesh. In October 2004, Mr. Sharma moved the Family Court at Ujjain seeking divorce. On a petition from Mrs. Jayshree, the Bombay High Court, by an order dated January 25, 2007, transferred the case pending in the Family Court, Ujjain, to a competent court at Malegaon, Nasik in Maharashtra. The present appeal by Mr. Sharma is against this judgment.

Allowing the appeal, the Bench said that “in our opinion, the order passed by the High Court is not sustainable and deserves to be set aside.”

Corrections and Clarifications

In a report "'HCs cannot transfer civil cases outside State'" (September 29, 2008), the case was transferred by the Madhya Pradesh High Court to a court in Malegaon, Nasik in Maharashtra, at the instance of the wife. It was not the Bombay High Court as was reported.

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