BEFORE THE HONORABLE SUPREME COURT OF INDIA
Under Article 133 of the Constitution of India
In the matter of
KULWINDER KAUR @ KULWINDER GURCHARAN SINGH……………………………
PETITIONER
V.
KANDI FRIENDS EDUCATION TRUST AND OTHERS………………….......
…………….RESPONDENT
UPON SUBMISSION TO THE HON’BLE JUDGE OF SUPREME COURT
MEMORANDUM ON BEHALF OF THE RESPONDENT
Submitted by: SHABIR CHOUDHARY
Reg no. GU16R0026
BALLB, VIIth semester
Submitted to: SHUBHAM BAGLA
Asst. prof. glocal law school
TABLE OF CONTENTS
INDEX OF AUTHORITIES.
STATEMENT OF JURISDICTION.
STATEMENT OF FACT
STATEMENT OF ISSUES .
SUMMARY OF ARGUMENT.
ARGUMENTS ADVANCED.
REASONING OF THE COURT.
DECISION OF SUPREME COURT.
CONCLUSION.
INDEX OF AUTHORITIES
List of Cases
Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 2 SCR 378,
Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 2 SCR 378,
Murarilal v.Raman Lal, AIR 1978 All 106.
Bhagwati Pande v. Badri Pande, AIR 1931 All 574 (FB) : ILR (1932) 54 All 171 : 1931 All LJ 953.
Mst. Basanti Devi v. Mst. Sahodra, AIR 1935 All 979.
State Bank of India v. M/s. Sakow Industries Faridabad (Pvt) Ltd., New Delhi, AIR 1976 P H 321.
Reference :
Referred books
Civil Procedure with Limitation Act, 1963, C.K. Takwani, Eighth edition, Eastern Book Co.
The Code of Civil Procedure, 1908
Referred sites
www.indiankanoon.org
www.legalcrystal.com
www.casemine.com
STATEMENT OF JURISDICTION
This appeal is directed against the judgment and order dated November 17, 2006
in Civil Miscellaneous No. 22108 CII of 2006. By the said order, the High Court of
Punjab & Haryana transferred Civil Suit No. 506 of 2003 from the Court of Smt.
Asha Kondal, Civil Judge (Sr. Dvn.), Ropar to the Court of Sh. Y.S. Rathore,
Additional Civil Judge (Sr. Dvn.), Chandigarh.
The honorable Supreme Court have a jurisdiction to deal the civil matters under
Article 133 of the Constitution of India read as follows “ Appellate Jurisdiction of
Supreme Court in appeals from High Courts in regard of civil matters."
STATEMENT OF FACTS
Kandi Friends Educational Trust (Trustµ for short) was set up for establishing
professional educational institutions with prominent educationists and
industrialists of the State of Punjab on September 24, 1997. It is the case of the
appellant that Gurcharan Singh, her husband was the Founder Chairman of the
Trust whereas the appellant was a Trustee along with the Founder Chairman. In
1998, certain new trustees were inducted including one B.S. Randhawa. In
September, 2002, elections were held and Gurcharan Singh was again elected as
the Chairman of the Trust. B.S. Randhawa and his wife Hardev Kaur raised protest
against the said election. In December, 2002, Gurcharan Singh, Chairman of the
Trust sought certain amendments in the Constitution of the Trust which were
approved by majority though B.S. Randhawa and Hardev Kaur opposed to such
amendments.
On June 21, 2003, Gurcharan Singh, Chairman of the Trust was murdered while he
waAs taking stroll in a park along with the appellant. B.S. Randhawa, who was one
of the Trustees, was arrested as the main accused and was charged for
committing murder of Gurcharan Singh. F.I.R. No. 271 of 2003 was registered on
the same day at Mohali Police Station. In view of death of Gurcharan Singh,
election of the Chairman was again held on July 23, 2003 and the appellant was
unanimously elected as the Chairperson. Ms. Japneet Kaur was nominated as
trustee being daughter of late Gurcharan Singh and she also started attending
meetings of the Trust.
B.S. Randhawa and Hardev Kaur were obviously unhappy with the development.
Hardev Kaur, hence, filed a suit on July 25, 2003 for a declaration that all
proceedings conducted by the defendants in the Meeting dated July 23, 2003 in
which the appellant was elected as the Chairperson were illegal, null and void and
liable to be set aside. Certain other reliefs were also claimed. In the suit, the
appellant herein was impleaded as defendant No. 4. Along with the plaint, the
plaintiffs filed an application under Order XXXIX, Rules 1 and 2 of the Code of Civil
Procedure, 1908 (hereinafter referred to as the Codeµ) for interim relief, but only
limited interim relief was granted and the plaintiff Smt. Hardev Kaur was allowed
to attend meetings of the Trust. Other interim reliefs were expressly refused.
Having failed to get relief sought in interim application, Hardev Kaur and B.S.
Randhawa filed another suit, i.e. the present suit in October, 2003 in the name of
Kandi Friends Education Trust through its so-called General Secretary Jaspal Singh.
Though the appellant was duly elected as Chairperson of the Trust, she was
wrongly described as Trustee and it was stated by the plaintiff that they were in-
charge and in management of the Trust.A declaration was sought that the
resolution dated October 14, 2003 adopted by the defendants was illegal, null and
void. Consequential reliefs were also prayed.
June 4, 2005, one more suit was filed by Jaspal Singh for declaration and
permanent injunction against the appellant. In interim injunction, only status quo
was ordered to be maintained by the Court. Jaspal Singh also filed a transfer
application No. 14 of 2006 in the District Court, Ropar for transfer of suit from the
Court of Smt. Asha Kondal to the Court of Shri A.S. Garewal, which was, however,
dismissed as withdrawn.
November 2, 2006, the Trust filed an application under Section 24 of the Code in
the High Court of Punjab & Haryana being Civil Miscellaneous No. 22108 CII of
2006 for transfer of Suit No. 506 of 2003 pending in the Court of Smt. Asha
Kondal, Sub-Judge, (Sr. Dvn.), Ropar to any other Court of competent jurisdiction
in Chandigarh or in the State of Haryanaµ in view of peculiar facts and
circumstances of the case in the interest of justiceµ. It was inter alia alleged in the
Transfer Application that though the suit was instituted in 2003 seeking injunction
against the defendant-appellant herein and others, it was pending even in
November, 2006. More than three years had passed and yet there was no much
progress in the case.
It was further alleged that there was lot of local pressure which had led to delay
and it had given advantage to the defendants as they were in power and were
trying to protract the proceedings. It was asserted that the Institution was one of
the most prestigious institutions in the area and lots of funds were generated as
there were several students. Hence, the Committee members who were in office
were trying their level best to stall the proceedings by using various tactics. It was
also stated that though the term of the appellant expired on August 31, 2005, she
continued to be in power simply because no case filed against her was decided
either way. A prayer was, therefore, made to transfer the case.
appellant herein filed detailed reply to the application contending that false and
scandalous allegations have been levelled by the plaintiff against the defendants
which were not correct
\
STATEMENT OF ISSUE
“Whether a court have the power ta transfer a case with his own discretion. "?
SUMMARY OF ARGUMENTS
“Whether a court have the power ta transfer a case with his own discretion. "?
It was submitted by the responded that the High Court was satisfied that Section
24 of the Code confers discretionary power on the Court to transfer a case from
one court to any other court subordinate to it. In exercise of the said power, an
action has been taken which cannot be challenged under Article 136 of the
Constitution. It was submitted that the High Court took into account ground
reality that a suit of 2003 which was of an urgent nature was not disposed of even
in 2006.
Arguments on the behalf of the appellant.
The learned counsel for the appellant contended that the High Court committed
an error of law and of jurisdiction in transferring the case from Ropar to
Chandigarh. It was submitted that no reasons/grounds have been disclosed for
taking such action of transferring the suit. The counsel submitted that all the
allegations levelled by the plaintiff had been controverted by the defendants and
even the learned Judge of the High Court had observed in the order that there
were allegations and counter-allegations by the parties. In spite of such situation,
the Court passed the impugned order of transfer which is not in consonance with
law.
ARGUMENTS ADVANCE
It was submitted that the High Court took into account ground reality that a suit
of 2003 which was of an urgent nature was not disposed of even in 2006. If, in the
light of the above fact, the case is transferred, it could not be said that the order
deserves interference in exercise of discretionary jurisdiction by this Court. It was,
therefore, submitted that the appeal deserves to be dismissed.
So far as the power of transfer is concerned, Section 24 of the Code empowers a
High Court or a District Court to transfer inter alia any suit, appeal or other
proceeding pending before it or in any Court subordinate to it to any other Court
for trial and disposal. The said provision confers comprehensive power on the
Court to transfer suits, appeals or other proceedings at any stage either on an
application by any party or suo motu.
In Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 2 SCR 378, this Court stated;
Assurance of a fair trial is the first imperative of the dispensation of justice and
the central criterion for the court to consider when a motion for transfer is made
is not the hypersensitivity or relative convenience of a party or easy availability of
legal services or like mini grievances. Something more substantial, more
compelling, more imperiling, from the point of view of public justice and its
attendant environment, is necessitous if the Court is to exercise its power of
transfer.
Similarly in Subramaniam Swamy v. Ramakrishna Hegde, (1990) 1 SCC 4, dealing
with power of this Court to transfer a case under Section 25 of the Code, A.M.
Ahmadi, J. (as His Lordship then was) stated; Under the old section the State
Government was empowered to transfer a suit, appeal or other proceeding
pending in the High Court of that State to any other High Court on receipt of a
report from the Judge trying or hearing the suit that there existed reasonable
grounds for such transfer provided the State Government of the State in which
the other High Court had its principal seat consented to the transfer. The present
Section 25 confers the power of transfer on the Supreme Court and is of wide
amplitude. Under the present provision the Supreme Court is empowered at any
stage to transfer any suit, appeal or other proceeding from a High Court or other
Civil Court in one State to a High Court or other Civil Court of another State if it is
satisfied that such an order is expedient for the ends of justice. The cardinal
principle for the exercise of power under this section is that the ends of justice
demand the transfer of the suit, appeal or other proceeding.
The question of expediency would depend on the facts and circumstances of each
case but the paramount consideration for the exercise of power must be to meet
the ends of justice. It is true that if more than one court has jurisdiction under the
Code to try the suit, the plaintiff as dominus litis has a right to choose the Court
and the defendant cannot demand that the suit be tried in any particular court
convenient to him.
The mere convenience of the parties or any one of them may not be enough for
the exercise of power but it must also be shown that trial in the chosen forum will
result in denial of justice. Cases are not unknown where a party seeking justice
chooses a forum most inconvenient to the adversary with a view to depriving that
party of a fair trial. The Parliament has therefore, invested this Court with the
discretion to transfer the case from one Court to another if that is considered
expedient to meet the ends of justice. Words of wide amplitude-for the ends of
justice-have been advisedly used to it leave the matter to the discretion of the
apex court as it is not possible to conceive of all situations requiring or justifying
the exercise of power.
In Murarilalv. Ramanlal it was held that Section 24(5) will empower a court to
pass orders transferring notwithstanding pending procedures. When the
retrospective operation of a procedural law is discussed, it just implies that even
pending proceedings will be represented by the changed law of system. However,
the principle of retrospective does not reach out to imply that if an order has as of
now been passed which had no legitimate viability when it was passed, it will get
such lawful acceptance in perspective of the consequent amendment of the law.
The Full Bench of the Allahabad High Court in Bhagwati Pande v. Badri Pande and
Another explained Section 24 Civil Procedure Codeas follows:-
"Obviously Section 24 contemplates the transfer of a case from one existing
Court. If therefore a Court of Small causes has ceased to exist or the officer
invested with Small Cause Court powers has been transferred from the district
and there is no other officer possessing such powers, there would be no Court
from which the District Court can under Section 24 Civil Procedure Code transfer
the case to an ordinary civil court.
In Mst. Basanti Devi v. Mst. Sahodra, a case in which Section 22 of the CPC, was
construed, it has been laid down that in an application for transfer under Section
22 of the CPC the convenience of the parties alone should not be considered, but
the totality of circumstances should indicate that a suit should proceed in a Court
different from the Court chosen by the plaintiff. Also, mere convenience of the
party is not enough for transfer of a case from one Court to another.
In State Bank of India v. M/s. Sakow Industries Faridabad (Pvt) Ltd., New Delhi,
the learned single Judge of Punjab and Haryana High Court held that the High
Court could examine the powers of transfer under Section 23 (3) to meet the ends
of justice and to prevent abuse of the process of the Court
REASONING OF THE COURT
In the case on hand, the High Court without stating anything whatsoever as to
allegations and counter-allegations, without considering the reply submitted by
the appellant herein and without recording any reason/ground passed the
impugned order transferring the case.
The learned counsel for the contesting respondent no doubt submitted that the
Court has not observed anything since observations by a High Court one way or
the other might prejudice one of the parties to the suit. It is true that normally
while making an order of transfer, the Court may not enter into merits of the
matter as it may affect the final outcome of the proceedings or cause prejudice to
one or the other side.
At the same time, however, an order of transfer must reflect application of mind
by the Court and the circumstances which weighed in taking the action. In the
instant case, it was alleged by the plaintiff that though more than three years had
passed from instituting the suit, it was not disposed of and delay had been caused
by the defendants as they were in office and they wanted to prolong the
proceedings so that they may take undue benefit of their status. The defendants,
in the reply filed by them, contended that delay had not been caused by them,
but it was the plaintiff who was responsible for not proceeding with the suit and
was to be blamed for creation of such situation. In support of the contention,
Zimni proceedings were relied upon.
It was also urged that the plaintiff-side could not get favourable order on
applications under Order XXXIX, Rules 1 and 2 of the Code and, hence, it wanted
to get the case transferred. In view of the assertion and retraction by the plaintiff
and the defendants, in our considered opinion, the High Court ought to have
applied its mind to those aspects and prima facie satisfied as to the grounds put
forward by the plaintiff in the transfer application and ought to have passed an
order one way or the other without entering into the controversy in the suit.
Unfortunately, the High Court allowed the application observing that it would be
appropriate to transfer the suit pending in the Court of Smt. Asha Konal, Civil
Judge, (Sr. Divn.), Ropar to the Court of Sh. Y.S. Rathore, Additional Civil Judge (Sr.
Divn.), Chandigarh. In our opinion, powers under Section 24 of the Code cannot
be exercised ipse dixit in the manner in which it has been done. Only on that
ground and without entering into larger issue, the appeal deserves to be allowed
and is accordingly, allowed.
DECISION OF SUPREME COURT
For the foregoing reasons, the appeal is allowed. The order passed by the High
Court is set aside and the matter is remitted to the High Court for fresh disposal in
accordance with law after hearing the parties. On the facts and in circumstances
of the case, however, there shall be no order as to costs.
Before parting with the matter, we make it clear that we have not entered into
correctness or otherwise of what is stated by the plaintiff or by the defendants
and we may not be understood to have expressed any opinion on allegations and
counter-allegations. As and when the matter will be placed before the High Court,
the Court will take an appropriate decision on its own merits without being
inhibited or influenced by the observations made by us in this judgment.
CONCLUSION
Power of transfer must be exercised with due care, caution and circumspection
and in the interests of justice .The court while deciding the question must bear in
mind two conflicting interests
(i) as a dominus litis the right of the plaintiff to choose his own forum and
(ii) the power and duty of the court to assure a fair trial and proper dispensation
of justice of the justice.
The paramount consideration would be the requirement of the justice and if the
ends of justice demand transfer of a case ,the court should not hesitate to act. At
the same time mere inconvenience of the party or bare and vague allegations by
an interested party about insecurity or even a threat to his life are not sufficient
to transfer a case want to territorial jurisdiction of the court to which the case is
transferred though a relevant factor is not conclusive and will not be an
impediment to the power of the court ordering the transfer .although
discretionary power of transfer cannot be imprisoned within a straitjacket of any
cast iron formula unanimously applicable to all situations ,it cannot be gainsaid
that the power to transfer a case must be exercised with due care and caution.
