Absence Of Notice U/S 24 CPC Not Fatal To Transfer Unless Prejudice Shown: Allahabad High Court

The Allahabad High Court has held that not issuing notice under Section 24 CPC before transferring a suit does not vitiate the transfer unless prejudice can be demonstrated by the party.

Section 24 CPC provides for transfer of suits, appeals or any other proceedings pending before the High Court or District Courts to another forum on application made by any of the parties or on its own motion. It provides that such transfer must be done after issuing notice ot the parties and after hearing them. Order VII Rule 10 C.P.C. provides for return of plaint.

Dr. Yogendra Kumar Srivastava, J held

“The provisions of Order VII Rule 10 and Rule 10A C.P.C. are procedural in nature and cannot be construed as limiting or overriding the plenary power of transfer vested under Section 24 C.P.C. Where the defect of jurisdiction stands effectively remedied by a lawful order of transfer and no prejudice is caused to any party, insistence upon return of the plaint would amount to elevating form over substance. The absence of prior notice under Section 24, by itself, does not vitiate the order of transfer in the absence of demonstrable prejudice.”

Petitioner (defendant in the suit) filed an application under Order VII Rule 10 C.P.C. for returning the plaint as the suit should have been instituted in the Small Causes Court instead of a regular Civil Court. The Trial Court noted that the suit had already been transferred to the Court of Civil Judge (Senior Division), Ballia, which was vested with the powers to try Small Causes cases.

Petitioner filed a revision against the order disposing of his application. The revision was dismissed. Accordingly, the petitioner approached the High Court on grounds that lack of jurisdiction cannot be cured by transferring the suit, the defect of jurisdiction can only be cured by returning the plaint. It was also argued that the transfer was vitiated since the petitioner was not issued notice.

Observing that Order VII Rule 10 C.P.C. is procedural in nature, the Court held that it cannot be read in isolation to the rest of the provisions of CPC. It held that wide powers were granted to the District Judge under Section 24 to transfer the suit at any stage. It held that the power under Section 24 could be exercised for curing the defect of jurisidciton.

“The language of Section 24(5) is clear and unequivocal and manifests the legislative intent that the absence of jurisdiction in the court of origin does not operate as a bar to the exercise of the power of transfer. The provision enables the District Judge to ensure that proceedings are brought before a competent forum without necessitating a return and re-presentation of the plaint.”

Discussing the interplay between Order VII Rule 10 and Section 24, the Court held that it is not necessary to return the plaint in every case where jurisdiction is incorrect. It held that

“Where the defect stands effectively remedied by a lawful transfer to a competent court, insistence on return of plaint would amount to elevating form over substance and would defeat the very purpose of procedural law.”

Further, the Court held that prejudice caused must be seen for determining whether the transfer was valid or vitiated for lack of notice to a party to the proceedings. It held that the transfer of proceedings to the correct forum with jurisdiction cannot be vitiated unless there is demonstrable prejudice caused to the party claiming it.

Since the petitioner had notice of the proceedings and had filed written statement after transfer of proceedings, the Court held that the transfer could not be vitiated as no prejudice was caused to the petitioner.

Accordingly, the petition was dismissed.

Case Title: Shiv Shankar v. Mahavir @ Ghura Turha And 5 Others

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