DURGESH SHARMA versus JAYSHREE

Citation: [2008] 13 S.C.R. 1056 · Decided: 26-09-2008 · Supreme Court of India · Bench: C.K. THAKKER · Disposal: Disposed off

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2008] 13 S.C.R. 1056 
~· 
A 
DURGESH SHARMA 
v. 
JAYSHREE 
(Civil Appeal No. 5857 of 2008) 
B 
SEPTEMBER 26, 2008 
~ . 
[C.K. THAKKER AND D.K. JAIN, JJ] 
Code of Civil Procedure, 1908: 
s. 23 ands. 25 (as substituted by Act 104of1976) rlw ss. 
c 22 and 24 - High Court, in purported exercise of its power u/s 
23(3), transferring a case pending in a court subordinate to it, 
to a court subordinate to another High Court - HELD: A High 
Court has no power to transfer a case pending in a court sub-
ordinate to it, to any court subordinate to another High Court, 
D and it is only the Supreme Court which can exercise the said 
-.,. . 
authority uls 25 of the Code - s.23 is not a substantive provi-
sion but a procedural or machinery provision, which merely 
provides forum, mode, method or manner in approaching an 
appropriate court to make an application - It does not em-
E power a court to effect transfer - s. 25 is a 'complete Code' 
and comprises substantive as well as procedural law - It al-
lows a party to make an application before the Court and also 
empowers the Court to make an order of transfer - s. 23 must 
be read subject to s.25 - Decisions of High Courts taking a 
F contrary view, overruled - Impugned order of High Court set 
t· -
aside. 
ss. 22 to 25 and s.151 - Transfer of cases -Applicability 
of s.151 - HELD: Since law relating to transfer of cases is 
contained in ss. 22 to 25 of the Code and these provisions 
G are exhaustive in nature, s.151 has no application. 
The appellant-husband filed a petition for dissolu-
tion of marriage uls 13 of the Hindu Marriage Act, 1955 in 
+ 
the Family Court at Ujjain (Madhya Pradesh) stating that 
H 
1056 
'j. 
DURGESH SHARMA v. JAYSHREE 
1057 
both the parties lastly lived together at Ujjain as husband A 
and wife. lhe respondent-wife in her written statement 
denied the averments and contended that the Ujjain court 
had no jurisdiction to try and decide the petition. She also 
• 
-...1.: 
filed an application u/s 9 of the Act for restitution of con-
jugal rights in the court of Civil Judge (Sr. Division), B 
Malegaon (Maharashtra). Thereafter, she filed an applica-
tion u/s 23 of the Code of Civil Procedure, 1908 in the High 
Court of Madhya Pradesh for transfer of the petition filed 
by her husband in Ujjain court to a court at Malegaon. 
The High Court allowed tlie application. 
c 
In the instant appeal filed by the husband, the sub-
missions of the parties were confined to the power, au-
thority and jurisdiction to transfer suits/appeal/other pro-
ceedings by a High Court from one court subordinate to 
• 'I' 
it to a court subordinate to another High Court: 
D 
Disposing of the appeal, the Court 
HELD: 1.1 A High Court has no power, authority or 
jurisdiction to transfer a case, appeal or other proceed-
ings pending in a court subordinate to it, to any court E 
subordinate to~anothe_r High Court in purported exercise 
of power under'sub-section (3) of Section 23 of the Code 
of Civil Procedure, 1908,'and it is only the Supreme Court 
which can exercise the said authority under Section 25 
·-; 
of the Code as substituted by Amendment Act of 1976. 
F 
[para 8] [1085,C-D] 
Guda Vijaya/akshmi v. Guda Sekhara Sastry, (1981) 2 
sec 646 - relied on. 
1.2 The law relating to transfer of cases (suits, ap-
peals and other proceedings) is well-settled. It is found in 
G 
Sections 22 to 25 of the Co.de, and these provisions are 
-.+ 
exhaustive in nature. Whereas Sections 22, 24 and 25 deal 
with power of transfer, Section 23 merely provides forum 
and specifies the Court in which an application for trans-
H 
1058 
SUPREME COURT REPORTS 
[2008] 13 S.C.R. 
-\. . 
A fer may be made. Section 23 is not a substantive provi-
sion vesting power in a particular Court to order transfer. 
[para 7] [1081,F-G] 
1.3 Where several Courts having jurisdiction are sub-
ordinate to one appellate Court, an application for trans-
~ . 
B fer may be made to such appellate Court and the Court 
may transfer a case from one Court subordinate to it to 
another Court subordinate to it. Likewise, where such 
Courts are subordinate to the same High Court, an appli-
cation may be made and action may be taken by the High 
c Court transferring a case from one Court subordinate to it 
to any other Court subordinate to that High Court. Where 
several Courts having jurisdiction are subordinate to dif-
ferent High Courts, it is only the Supreme Court which may 
pass an order of transfer and one High Court has n

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