Ordinarily the plaintiff has the right to choose the forum where the plaintiff has the choice of two or more courts in which he may properly institute a suit. But the defendant may apply in such case to have the suit transferred from the court in which it is filed to another court, which has also the jurisdiction to hear the suit.
This defendant has to do after notice to the other parties at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement.
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Such an application is to be made to the appellate court where the several courts are under the same court of appeal or to the High Court where the several courts are under the same High Court though under different appellate courts or to the High Court without the local limits of whose jurisdiction the court in which the suit is brought is situate where such courts are subordinate to different .
Apart from it, there is the general power of transfer and withdrawal vested in the High Court or the District Court which on the application of any of the parties and after hearing such of them as desire to be heard, or of its own motion, can (1) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try and dispose of the same, or (2) withdraw any suit, appeal or other proceeding pending in any court subordinate to it and try or dispose of the same, or transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same, or transfer the same for trial or disposal to the court from which it was withdrawn. [S. 24 (1)).
Then there is the power of the Supreme Court to transfer suits, which is provided in Section 25 of the Code. 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. [S. 5 (1)]. Every application under this section shall be made by a motion which shall be supported by an affidavit.
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The court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.
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 application of such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.
The law applicable to any suit, appeal or other proceeding transferred under this 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. [S. 25 (2-5)].
The Supreme Court’s power to transfer suit is not curtailed or excluded by Sections 21 and 21-A of the Hindu Marriage Act. It can transfer suit for judicial separation by the wife and that by the husband for restitution of conjugal rights filed in two different States to have a joint or consolidated hearing or trial of both the petitions by one and the same court in order to avoid conflicting decisions being rendered by two different courts. (Guda Vyalakshmi v. Ramchandra Sekhara Sastry, A.I.R. 1981 S.C. 1143).
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As stated earlier, the plaintiff has the right to choose his own forum and the burden lies on the applicant to make out a strong case for transfer. A mere balance of convenience in favour of proceedings in another court may be a relevant consideration but will not be a sufficient ground for transfer.
As a general rule the court should not interfere unless the expenses and difficulties of the trial would be so great as to lead to injustice or the suit has been filed in a particular court for the purpose of working injustice.
The other valid ground for transfer is the abuse of the process of the court. Yet there is another ground for transfer and that is where the presiding judge is personally interested in the litigation or where there is a reasonable apprehension in the mind of the litigant that he will not get a fair trial.
