Judgment Case ID: 4502

Judgment:
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. G.S. Rama Rao for the Petitioner. B.D. 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 C.P.C. 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 (A.P.) 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 (A.P.) However	 counsel for the respondent (husband) has raised before us a preliminary objection that section 25 of the C.P.C. 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 C.P.C. gets excluded by reason of the provisions of section 21 and 21A of the . According to him section 25 C.P.C. 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 C.P.C. as relate to the regulation of proceedings i.e. such provisions which deal with procedural matters only	 section 25 C.P.C. 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 C.P.C. 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 C.P.C. 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 C.P.C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase 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 C.P.C. as it then stood	 that is to say	 old section 24 and 25 of C.P.C. It does not deal with the present section 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1	 1977 (section 11 of the Amending Act 104 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 C.P.C. 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 C.P.C. 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 (A.P.)	 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 section(2) (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 25(1) of the Code of Civil Procedure be held to come under section 25(1) 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. S.21 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 . V.D.K. Preliminary objection rejected.

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