IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 Tr.P(C).No. 342 of 2011() ------------------------------------ (O.P.NO.770/2011 OF FAMILY COURT, RANGAREDY DISTRICT, ANDRA PRADESH) --------------------------------- PETITIONER -------------------- SMT.KEERTHI B NAIR, AGED 26 YEARS, D/O.INDIRA AMMA, KATTAKKALIL VEEDU, IRULOOR, MITHRMALA, THIRUVANANTHAPURAM, KERALA. BY ADV. SRI.S.SUNIL MAURYAN RESPONDENT(S): --------------------------- ROLLAND ANDRADE, S/O.RICHARD ANDRADE, QTR.NO.TYPE-III/47, NGRI COLONY, UPPAL ROAD, HUBSIGUDA, HYDERABAD-500 007. BY THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts Tr.P(C).No. 342 of 2011() APPENDIX PETITIONER'S ANNEXURES: ANNEX A1 COPY OF THE LEGAL NOTICE DATED 22/06/2011 SENT BY THE RESPONDENT HEREIN. ANNEX A2 COPY OF THE REPLY OF THE PETITIONER HEREIN DATED 18/07/2011 TO ANNEX A1. ANNEX A3 COPY OF THE O.P.NO.952 OF 2011 FILED BY THE PETITIONER HEREIN BEFORE THE FAMILY COURT, NEDUMANGAD, FOR RESTITUTION OF CONJUGAL RIGHTS. ANNEX A4 COPY OF THE O.P.NO.770 OF 2011 FILED BY THE RESPONDENT HEREIN BEFORE THE FAMILY COURT, RANGAREDY DISTRICT, HYDERABAD FOR RESTITUTION OF CONJUGAL RIGHTS. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts 'CR' THOMAS P JOSEPH, J. ---------------------------------------- Tr.P(C).No.342 of 2011 --------------------------------------- Dated this 11th day of October, 2011 ORDER The question urged for a decision in this proceeding is whether invoking sub sec.(3) of Sec.23 r/w Sec.22 of the Code of Civil Procedure (for short, "the Code”) it is within the power of a High Court to transfer a case pending in a Court subordinate to it to a Court subordinate to another High Court or withdraw a case pending in a Court subordinate to another High Court to a Court subordinate to it?. Placing reliance on the decision in Jency Vs. Biju Thomas (2005 (4) KLT 766) learned counsel for petitioner contends that it is permissible. 2. A resume of the facts of the case required to decide the question are: Petitioner/wife filed O.P.No.952 of 2011 for restitution of conjugal rights and M.C.No.269 of 2011 seeking maintenance from the respondent/husband in the Family Court, Nedumangad. Respondent filed O.P.No.770 of 2011 for restitution of conjugal rights in the Family Court at L.B.Nagar, R.R. District, Andhra Pradesh which is subordinate to the High Court of Andhra Tr.P(C).No.342 of 2011 -: 2 :- Pradesh. Petitioner states that she received notice on 17.08.2011 in O.P.No.770 of 2011 before which she had filed O.P.No.952 of 2011 in the Family Court, Nedumangad. Hence, it is prayed that O.P.No.770 of 2011 may be withdrawn from the Family Court, L.B.Nagar, R.R. District, Andhra Pradesh and transferred to the Family court, Nedumanagd 3. In the decision relied by the learned counsel and referred supra, it is held that under sub sec.(3) of Sec.23 of the Code an application for transfer is maintainable before a High Court even where the proposed transferee Court is subordinate to another High Court and that if the petition for divorce (in that case) could be filed either before the Family Court, Chennai or before the Family Court, Ernakulam, this Court in exercise of its power under sub sec.(3) of Sec.23 of the Code could transfer the case from Family Court, Ernakulam to Family Court, Chennai provided the requirements of Sub sec.(3) of Sec.23 r/w Sec.22 of the Code are satisfied. Learned Judge has placed reliance on the decisions (to hold so) in Ram Kumar Vs. Tula Ram Nathu Ram (AIR 1920 Patna 138), Firm Kanhaiyalai Vs. Zumerlal (AIR 1940 Nagpur 145), P.Salayandi Nagar & Ors. Vs. Venugopala Chetty & Ors. (1958 KLT 1118 : AIR 1960 Tr.P(C).No.342 of 2011 -: 3 :- Kerala 91) and the orders in C.M.C.No.10 of 1996 and M.F.A.No.1330 of 1996 of this Court. 4. Sec.23 of the Code reads: (1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under Sec.22 shall be made to the Appellate Court. (2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court. (3) Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Courts in which the suit is brought is situate. It is not disputed that the above said provision is subject to Sec.22 of the Code which deals with the power to transfer suits which may be instituted in more than one Court. Sec.24 of the Code deals with general power of the High Court and the District Court for transfer and withdrawal suits, appeals or other proceedings. The power under Sec.24 of the Code is confined, so far as the High Court is concerned to the Courts subordinate to it and so far as the District Court is concerned to the Courts subordinate to it. Sec.25 of the Code as substituted by Act 104 of Tr.P(C).No.342 of 2011 -: 4 :- 1976 deals with the power of the Supreme Court to transfer suits, appeal or other proceeding from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. Sec.25 of the Code underwent drastic change by Act 104 of 1976 and it is by the said Act that the provision as now seen in Sec.25 is incorporated. Secs.22, 24 and 25 thus deals with the power for transfer and withdrawal of cases. Sec.23 of the Code deals with the forum or machinery for making an application. It is not as if Sub Sec.(3) of Sec.23 of the Code confers power on the High Court to transfer a case from a Court subordinate to it to a Court subordinate to another Court or, withdraw a case from a Court subordinate to another High Court to a Court subordinate to itself. Sec.23 of the Code is not a substantive provision, it is merely procedural and it only speaks about the forum and not the power. The power for transfer/withdrawal is conferred by Sec.22, Sec.24 or Sec.25 of the Code. Sub Sec.(3) of Sec.23 is therefore subject to Sec.25 of the Code. 5. I stated that so far as general power for the District Court and High Court is concerned, Sec.24 governs the field, so far as the District Court is concerned, transfer and withdrawal is Tr.P(C).No.342 of 2011 -: 5 :- confined to and from Courts subordinate to it while, so far as the High Court is concerned it is confined to the Courts subordinate to it. 6. This question was specifically considered by the Supreme Court in Durgesh Sharma Vs. Jayshree Sharma (2008(4) KLT 169). There, a benches of three Judges considered the effect of Secs.22 to 25 of the Code and held that sub sec.(3) of Sec.23 of the Code does not confer any power but only prescribes the forum or the machinery. That was a case where the appellant/husband had filed an original petition in the Family Court, Ujjain on 27.10.2004. Respondent/wife on her part filed a petition for restoration of conjugal rights in the Court at Malegaon. The wife filed a petition in the Indoor Bench of the Madhya Pradesh High Court under Sub Sec.(3) of Sec.23 of the Code requesting to transfer the case from the Ujjain Court to the Court at Malegaon. The High Court invoking power under Sub Sec.(3) of Sec.23 of the Code allowed the request. The husband challenged that order in appeal before the Supreme Court. Various arguments were advanced as to the power of the High Court to transfer a case pending in a Court subordinate to it to a Court subordinate to another Court or for withdrawal from such Tr.P(C).No.342 of 2011 -: 6 :- Court to a Court subordinate to itself. Reliance was placed on sub sec.(3) of Sec.23 of the Code. In support of the contention that sub sec.(3) of Sec.23 of the Code empowers the High Court to do so, reliance was placed on the decisions of various High Courts including Ram Kumar Vs. Tula Ram Nathu Ram (supra), Firm Kanhaiyalai Vs. Zumerlal (supra) and P.Salayandi Nagar & Ors. Vs. Venugopala Chetty & Ors. (supra). So far as the decision in P.Salayandi Nagar & Ors. Vs. Venugopala Chetty & Ors. (supra) is concerned, the Supreme Court observed in paragraphs 48 and 49 that in the said case (P.Salayandi Nagar & Ors. Vs. Venugopala Chetty & Ors. (supra)) the High Court stated that competency of the petition (before the High Court) was not objected by the opposite party. In other words, the decision in P.Salayandi Nagar & Ors. Vs. Venugopala Chetty & Ors. (supra) proceeded on the assumption that the High Court had the power to transfer a suit pending in a Court subordinate to it to a Court subordinate to another High Court under sub sec.(3) of Sec.23 of the Code. To be more precise the question whether sub sec.(3) of Sec.23 of the Code conferred power or only prescribed the forum was not the subject matter of decision in P.Salayandi Nagar & Ors. Vs. Tr.P(C).No.342 of 2011 -: 7 :- Venugopala Chetty & Ors. (supra). The decisions in Ram Kumar Vs. Tula Ram Nathu Ram (supra), Firm Kanhaiyalai Vs. Zumerlal (supra) (relied on by the learned Judge in Jency Vs. Biju Thomas (supra)) were considered by the Supreme Court in paragraphs 43 and 46 of the decision in Durgesh Sharma Vs. Jayshree Sharma (supra). Other decisions of other High Courts taking a similar view in view of sub sec.(3) of Sec.23 of the Code were also considered by the Supreme Court. It was held that Sub Sec.(3) of Sec.23 of the Code does not confer power on the High Court but only prescribed the forum and that the said provision should be read subject to Sec.25 of the Code. Even if such power was with a High Court earlier, it stood withdrawn with effect from the date on which Sec.25 of the Code was substituted by Act 104 of 1976. The Supreme Court also held that the decisions taking a contrary view do not lay down the correct law. In paragraph 76 the Supreme Court referred to the argument of the respondents that sub sec.(3) of Sec.23 and Sec.25 of the Code must be read harmoniously to avoid sub sec. (3) of Sec.23 of the Code becoming nugatory, redundant and futile and held in paragraph 77: “We are unable to uphold the contention. In our considered view, the fallacy in the argument lies Tr.P(C).No.342 of 2011 -: 8 :- in the fact that it presumes and presupposes that S.23 of the Code is a substantive provision which authorizes a Court mentioned therein to order transfer. It is not so. The said section, as held by us, is merely a procedural one or a machinery provision and provides mode, method or manner in approaching a Court for making an application. It does not empower a Court to effect transfer. Moreover, S.25 of the Code is a 'complete Code' dealing with substantive as well as procedural law. S.23, in our opinion, therefore, cannot be interpreted in the manner suggested by the learned counsel appearing for the wife” In paragraph 78 it is held: “After the commencement of the Constitution and establishment of the Supreme Court (this Court), Parliament thought it proper to amend S.25 of the Code and accordingly, it was substituted by empowering this Court to order transfer from one High Court to another High Court or to one Civil Court in one State to another Civil Court in any other State. It is, no doubt, true that even when S.25 in the present form was substituted by the Amendment Act of 1976, sub-s.(3) of S.23 of the Code has neither been deleted nor amended. That, however, is not relevant. Since in our considered view, S.23 is merely a procedural provision, no order of transfer can be made under the said provision. If Tr.P(C).No.342 of 2011 -: 9 :- the case is covered by S.25 of the Code, it is only that section which will apply for both the purposes, namely, for the purpose of making application and also for the purpose of effecting transfer. On the contrary, reading of sub-s.(3) of S.23 of the Code in the manner suggested by the learned counsel for the respondent-wife would result in allowing inroad and encroachment on the power of this Court not intended by Parliament. S.23, therefore, in our considered view, must be read subject to S.25 of the Code. The decisions taking a contrary view do not lay down correct law. We, therefore, overrule them. Even if such power was with a High Court earlier, it stood withdrawn with effect from January 1, 1977 in view of S.25 of the Code as amended by Code of Civil Procedure (Amendment) Act, 1976.” 7. It is also relevant to note from the above decision of the Supreme Court in paragraphs 71 to 74 that it has been held that in the matter of transfer/withdrawal of a case pending in a Court subordinate to one High Court to/from a Court subordinate to another Court, the power is vested only with the Supreme Court in view of Sec.25 of the Code. 8. I may also point out that the decision in Durgesh Sharma Vs. Jayshree Sharma (supra) has been relied on by Tr.P(C).No.342 of 2011 -: 10 :- the Supreme Court in Nahar Industrial Enterprises Ltd. Vs. Hong Kong & Shanghai Banking Corporation (2009(3) KLT 57 (C.No.59)). In the light of the above decisions of the Supreme Court, the contention that this Court has the power to withdraw a case pending in Family Court at L.B Nagar, R.R.District, Andhra Pradesh which is a Court subordinate to another High Court cannot be accepted. That power can be exercised only by the Supreme Court. 9. In view of Sec.25 of the Code as substituted by Act 104 of 1976 the decisions relied on in Jency Vs. Biju Thomas (supra) have been declared as not good law. It follows that the decisions in Jency Vs. Biju Thomas (supra), C.M.C.No.10 of 1996 and M.F.A.No.1330 of 1996 do not lay down good law in view of the decision of the Supreme Court in Durgesh Sharma Vs. Jayshree Sharma and Nahar Industrial Enterprises Ltd. Vs. Hong Kong & Shanghai Banking Corporation (supra) Petition fails. It is accordingly dismissed. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-