r Petition No 36 of 1980
Petition under section 25 of the Code of Civil Procedure for transfer of case No 28 of 1980 Misc
36 pending in the Court of the Distt
Judge Udaipur Rajasthan to the Court of Subordinate Judge Eluru Andhra Pradesh to be tried alongwith O P No 72 of 1979 pending in that court
GS Rama Rao for the Petitioner
BD Sharma for the Respondent
The following Judgments were delivered TULZAPURKAR J On September 26 1979 the petitioner wife filed a suit in forma pauperis seeking maintenance from the respondent her husband in the Court of Subordinate Judge Eluru Andhra Pradesh being O P No 72 of 1979
On the receipt of the notice of the suit the respondent filed a divorce suit Petition Case No 28 of 1980 against the wife under section 13 of the in the Court of the District Judge Udaipur Rajasthan
By the instant transfer petition filed under section 25 CPC 226 1908 the wife is seeking to get the husband s suit transferred to Eluru
On merits we are satisfied that it is expedient for the ends of justice to transfer the husband s suit to the District Court at Eluru AP 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 High Court at Eluru AP However counsel for the respondent husband has raised before us a preliminary objection that section 25 of the CPC under which the transfer petition has been made is not applicable to proceedings under the and as such this Court has no power to transfer the husband s suit from Udaipur District Court to the District Court at Eluru
He urged that section 25 of CPC gets excluded by reason of the provisions of section 21 and 21A of the 
According to him section 25 CPC deals with the substantive law and not procedural law and since section 21 of the makes applicable to all the proceedings under the Act only such provisions of CPC as relate to the regulation of proceedings ie such provisions which deal with procedural matters only section 25 CPC is not applicable
He also urged that section 21 A 3 of the also makes the above position clear beyond doubt by specifically excluding sections 24 and 25 CPC from being applied to the proceedings under the 
A large number of authorities were referred to by counsel to substantiate his contention and general principles but in particular one decision of the Nagpur Bench of the Bombay High Court in the case of Priyavari Mehta vs Priyanath Mehta was pressed into service as having a direct bearing on the point
In our view on proper construction of the relevant provisions it is not possible to uphold the preliminary objection
In the first place it is difficult to accept the contention that the substantive provision contained in section 25 CPC is excluded by reason of section 21 of the 
Section 21 of the merely provides Subject to other provisions contained in this Act and to such rules as the High Court may make in that behalf all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure 1908
In terms section 21 does not make any distinction between procedural and substantive provisions of CPC 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 227 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 Act
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 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 provision of the Act
For instance it is difficult to countenance the suggestion that the doctrine of res judicata contained in section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act
Res judicata after all is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence the whole concept is more correctly viewed as a substantive rule of law See Canada and Dominion Sugar Co Ltd vs Canadian National West Indies Steamships Ltd So far as section 21A of the is concerned the marginal note of that section 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
Further sub section
3 of section 21A on which strong reliance was placed runs thus 21A 3
In a case where clause b of sub section 2 applies the Court or the Government as the case may be competent under the Code of Civil Procedure 1908 5 of 1908 to transfer any suit for proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code
 This provision in terms deals with the power of the Government or the Court on whom powers of transfer have been conferred by the CPC as it then stood that is to say old section 24 and 25 of CPC
It does not deal with the present section 25 CPC 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 of 1976
By the amendment very wide and plenary power has been conferred on this 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 228 Court in one State to another Civil Court in any other State throughout the country
Conferral of such wide and plenary power on this Court could not have been in the contemplation of Parliament at the time of enactment of section 21A of the 
It is therefore difficult to accept the contention that s 21A of excludes the power of transfer conferred upon this Court by the present section 25 of CPC in relation to proceedings under that Act
Coming to the decision rendered by the Nagpur Bench of the Bombay High Court in Priyavari Mehta s case supra it needs to be pointed out that the aforesaid aspects of section 21A of the and the present section 25 of the CPC were not considered by the Nagpur Bench at all
Moreover the Nagpur Bench following the decision of the Punjab and Haryana High Court in Smt
Rama Kanta vs Ashok Kumar has also taken the view that section 21A of the permits transfer and consolidation of only two types of petition under the Act namely cross petitions filed by the two spouses against each other under section 10 or section 13 of the Act and that consolidation or joint hearing of other types of petitions is excluded by necessary intendment
The Bench has observed The effect of section 21A therefore in my opinion is that joint or consolidated hearing or trials of petitions other than those mentioned in that section not being permissible the powers under section 23 to 25 of the Code cannot be exercised for transfer of petitions for a consolidated hearing of the petitions not contemplated by that section
 Such a view in our opinion is not correct
As stated earlier in the matter of transfer of petitions for a consolidated hearing thereof section 21A cannot be regarded as exhaustive for the marginal note clearly suggests that the section deals with power to transfer petitions and direct their joint and consolidated trial in certain cases
 Moreover 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 ground that the wife has withdrawn from his society without reasonable excuse under section 9 of the Act and the wife s petition for judicial separation against her husband on ground of cruelty under section 10 of the Act in order to avoid conflicting decisions being rendered by two different 229 Courts
In such a situation resort will have to be had to the powers under sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing
Reading section 21A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided
In this view of the matter the preliminary objection is overruled
Divorce case No 28 of 1980 pending in the District Court Udaipur Rajasthan is transferred to the District Court Eluru AP to which Court the wife s petition for maintenance shall also stand transferred
No order as to costs
AMRENDRA NATH SEN J
I agree with the order proposed by my learned brother
I however propose to make certain observations with regard to the preliminary objection raised as to the jurisdiction of this Court to entertain this application
The preliminary objection raised is that the jurisdiction and power conferred on this Court under section 25 of the Code of Civil Procedure are excluded by the provisions contained in section 21 and section 21A of the  and as section 25 of the Civil Procedure Code is not attracted this Court does not have jurisdiction to entertain this application for transfer
section 25 of the Code of Civil Procedure reads as follows 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 Supreme Court may at any stage if satisfied that an order under this section is expedient for the ends of justice direct that any suit appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State
2 Every application under this section shall be made by a motion which shall be supported by an affidavit
3 The Court to which such suit appeal or other proceeding is transferred shall subject to any special directions in the order of transfer either re try it or proceed from the stage at which it was transferred to it
4 In dismissing any application under this section the Supreme Court may if it is of opinion that the application was frivolous or vexatious order the applicant to pay by way of compensation to any person who has opposed the 230 application such sum not exceeding two thousand rupees as it considers appropriate in the circumstances of the case
5 The law applicable to any suit appeal or other proceeding transferred under the section shall be the law which the court in which the suit appeal or other proceeding was originally instituted ought to have applied to such suit appeal or proceeding
 It may be noticed that the present section 25 was substituted for the former section 25 by the Code of Civil Procedure Amendment Act 1976
In this connection it may be relevant to set out section 25 of the Code of Civil Procedure as it stood before its amendment by the substitution of the present section
The earlier section 25 was in the following terms 1 Where any part to a suit appeal or other proceeding pending in a High Court presided over by a single Judge objects to its being heard by him and the Judge is satisfied that there are reasonable grounds for the objection he shall make a report to the State Government which may by notification in the Official Gazette transfer such suit appeal or proceeding in any other High Court Provided that no suit appeal or proceeding shall be transferred to a High Court without the consent of the State Government of the State that High Court has its principal seat
2 The law applicable to any suit appeal or proceeding so transferred shall be the law which the Court in which the suit appeal or proceeding was originally instituted ought to have applied to such case
 A plain reading of section 25 of the Code clearly indicates that very wide jurisdiction and powers have been conferred on this Court to transfer any suit appeal or any other proceeding 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
I shall now set out the relevant provisions of the  section 21 of the is in the following terms Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf all 231 proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure 1908 Section 21A which was introduced in the Act by the Amending Act 68 of 1976 provided as follows 1 where a a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 and b another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground whether in the same district court or in a different district court in the same State or in a different State the petition shall be dealt with as specified in sub section2 2 in a case where sub section 1 applies a if the petitions are presented to the same district court both the petitions shall be tried and heard together by that Court b if the petitions are presented to different district courts the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented
3 In a case where clause b of sub section 2 applies the court or the Government as the case may be competent under the Code of Civil Procedure 1908 to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code
 232 The learned counsel for the respondent argues that in view of the provisions contained in section 21 only the provisions contained in the Code of Civil Procedure relating to procedure which will regulate the proceedings instituted under the will apply and as section 25 of the Code of Civil Procedure does not appertain to the domain of procedure and confers substantive right the said section is not applicable and cannot be attracted
It is argued that this position is further made clear by the provisions contained in section 21A
In my opinion this argument of the learned counsel for the respondent husband is without any substance
I have earlier set out section 25 of the Code of Civil Procedure and I have pointed out that an analysis of the section makes it abundantly clear that for the ends of justice wide power and jurisdiction have been conferred on this Court in the matter of transfer of any suit appeal or proceeding from any High Court or other Civil Court in one State to a High Court or other Civil Court in any other State
A suit or a proceeding for divorce under the in a Civil Court is necessarily a suit or proceeding and must on a plain reading of section 251 of the Code of Civil Procedure be held to come under section 251 of the Code as the said section speaks of any suit appeal or other proceeding
This Court must necessarily enjoy the power and jurisdiction under the said provisions of transferring such a suit or proceeding for the ends of justice unless the power and jurisdiction of this Court are specifically taken away by any statute
If the jurisdiction clearly conferred on any Court has to be ousted the exclusion of such jurisdiction must be made in clear and unequivocal terms
S21 of the does not deal with the question of jurisdiction of any Court
As no procedure with regard to the proceedings under the has been laid down in the said Act section 21 of the Act only provides that all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure  section 21 of the cannot be construed to exclude the jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure
It does not become necessary in the instant case to decide whether the provision in relation to jurisdiction of this Court contained in section 25 of the Code of Civil Procedure is one of substantive law or it belongs to the domain of Procedure
Even I accept the argument of the learned counsel for the respondent that section 25 does not form any part of the procedural law and is a part of the substantive law I am of the opinion that jurisdiction conferred on this Courts by section 25 of 233 the Code of Civil Procedure is not in any way affected by section 21 of the which as I have already noted only provides that all proceedings under the shall be regulated as far as may be by the Code of Civil Procedure 1908  section 21A of the  in my opinion has indeed no bearing on the question of jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure
section 21A of the makes provisions for transfer of petitions specified in the said section and for hearing and disposal of such petitions together by the District Court in which the earlier petition has been presented
Such power has been conferred on the Court or the Government
section 21A has no application to the case of transfer of any suit or proceeding from one State to another
As I have earlier noted very wide power and jurisdiction have been conferred on this Court in the interest of justice for transferring any appeal suit or proceeding from one State to another under section 25 of the Code of Civil Procedure
In the instant case the petitioner has applied for transfer of the suit pending in the District at Udaipur in the State of Rajasthan to the appropriate Court at Eluru in the State of Andhra Pradesh
I am therefore of the opinion that this Court enjoys the power and jurisdiction to entertain this application under section 25 of the Code of Civil Procedure and section 21 and section 21A of the do not in any way exclude affect or curtail the power conferred on this Court under section 25 of the Code of Civil Procedure
I may incidentally add that the present section 25 in the Code of Civil Procedure came into force after section 21 and 21A have been incorporated in the 
VDK Preliminary objection rejected


Summary:
The petitioner wife filed a suit OP 7279 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 281980 against the wife under section 13 of the in the court of the District Judge Udaipur Rajasthan
By the instant transfer petition filed under section  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  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 AP
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 AP
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 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 21
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 
In terms section 21 CPC does not make any distinction between procedural and substantive provisions of CPC 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 does not exclude the power of transfer conferred upon the Supreme Court by the present section 25 CPC 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 CPC 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 
227 C D F H 228 A B Smt
Rama Kanta vs Ashok Kumar AIR 1977 Punjab  Haryana 373 and Priyavari Mehta vs Priyanath Mehta AIR 1980 Bombay 337 overruled
Per Amrendra Nath Sen J 1
A plain reading of section 25 CPC 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
D 2  1
Sections 21 and 21A of the 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 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 only provides that all proceedings under the shall be regulated as far as may be by the Code of Civil Procedure 1908
Section 21 of the 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 CPC 232 E G 2  3
Section 21A of the has indeed no bearing on the question of jurisdiction conferred on the Supreme Court under section 25 CPC 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 CPC 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 have been incorporated in the and as such section 25 of the Code overrides sections 21 and 21A of the 
233 A E