SHAH NEWAZ KHAN & ORS. versus STATE OF NAGALAND & ORS

Citation: [2023] 3 S.C.R. 985 · Decided: 28-02-2023 · Supreme Court of India · Bench: HRISHIKESH ROY · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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   [2023] 3 S.C.R. 985
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SHAH NEWAZ KHAN & ORS.
v.
STATE OF NAGALAND & ORS.
(Civil appeal no. 1497 of 2023)
FEBRUARY 28, 2023
[HRISHIKESH ROY AND DIPANKAR DATTA, JJ.]
Code of Civil Procedure, 1908 – ss.24, 25 – Constitution of
India – Arts. 214, 231 – Suit – Transfer of – Appellant-plaintiff
moved an application u/s. 24 of CPC before the Gauhati High Court
(Common High Court for the states of Assam, Nagaland and two
other states) for an order to transfer of a suit filed by appellant in
the court of the District Judge, Dimapur, Nagaland to the court of
the District Judge at Gauhati, Assam – High Court rejected the
transfer application – In appeal before the Supreme Court, issue
was: Is the Supreme Court the sole repository of power in terms of
s. 25 of the CPC to direct transfer of a suit, appeal or other
proceeding from a Civil Court in one State to a Civil Court in another
State? Or, is it open for a High Court, if it is the common High
Court for two or more States, to entertain an application for transfer
u/s. 24 of the CPC and transfer a suit, appeal or other proceeding
from a Civil Court to another Civil Court, both of which are
subordinate to such High Court but situate in different States in
relation to which it exercises jurisdiction, for consideration and
decision – Held: A true and proper interpretation of s.25 of the
CPC leads to conclusion that same applies to inter-State transfer of
a suit, appeal or other proceeding where both States have a High
Court in terms of Art.214 of the Constitution and not to a transfer
where both States have a common High Court under Art. 231 –
Power u/s. 24 of the CPC can be exercised by the High Court even
for inter-State transfer of a suit, appeal or other proceeding, if it is
the common High Court for two or more States under Art. 231 of
the Constitution and both the Civil Courts (transferor and transferee)
are subordinate to it – Judgment of High Court set aside – Gauhati
High Court to now decide the application u/s. 24 of CPC afresh.
Code of Civil Procedure, 1908 – ss.24, 25 – Interpretation of
– Held: A narrow interpretation of s.25 imposing a bar for
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
entertainment of an application u/s. 24 for transfer of a suit, appeal
or other proceeding by a common High Court like the Gauhati High
Court inter-se the four States in relation to which it exercises
jurisdiction could place a heavy burden and might pose an
insurmountable obstacle for litigants of the far-flung areas of the
North-East, if they were made to approach Supreme Court for such
transfer on the specious ground that the Civil Court to which the
same is proposed to be transferred is in a State other than the State
in which the suit has been instituted.
Interpretation of Statutes – An interpretation of the law that
seeks to address the mischief, that is consistent with the Constitution
and promotes constitutional objectives and that which responds to
the needs of the nation must be adopted.
Allowing the appeal, the Court
HELD : 1. Section 24 of the CPC is a general power of
‘transfer and withdrawal’ capable of being invoked by the High
Courts at any stage either suo motu without notice or on the
application of any of the parties after notice, whereas section 25
confers exclusive power on the Supreme Court, on the application
of either of the parties and after notice, to transfer suits, etc.
from the Courts stated therein. While section 24 is part of the
general law, section 25 is the special law. Law is well-settled, and
referring to the decision in Amarendra Pratap Singh vs. Tej
Bahadur Prajapati, that a general law cannot defeat the provisions
of a special law to the extent to which they are in conflict; else, an
effort has to be made at reconciling the two provisions by
homogenous reading. What, therefore, needs to be seen and
appreciated is whether there is any conflict or inconsistency
between the general law (section 24) and the special law (section
25) for the former to yield to the latter, and ascertain whether the
High Court still has the jurisdiction under the general law to order
an inter-State transfer notwithstanding the special law vesting
the Supreme Court with such power of transfer. There has to be
an inconsistency between the two so as to apply the maxim
generalia specialibus non derogant. The jurisdiction conferred on
the Supreme Court pursuant to the amendment of section 25 of
the CPC in 1976 though special, invocation

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