2. The Sections under which the Transfer petition shall be moved, and the Court to which it should be moved to be read directly from the Bare Acts. In the Criminal Procedure Code, 1973 and Code of Civil Procedure, 1908; there are various Sections dealing with the Power to Transfer the Cases. Under Special Acts also there are provision to transfer the cases filed under those Laws, for example Section 21A of the Hindu Marriage Act.
3. INGREDIENTS:- After reading concerned Sections, the necessary ingredients in the said ingredients/ grounds should be alleged in the Transfer Petition, and supporting documents should be produced as “Annexure/ Exihibit”. While opposing the Transfer Petition also, the same procedure of alleging that those Ingredients are not present should be pleaded and documents in support of of ingredients are present are to be produced as “Annexure/ Exihibit”.
3.1. Even if the Section only confers only a Right to get the case Transferred, it does not mean that there are no ingredients/ grounds to be alleged and proved. In such cases, a lot of cases decided by the Supreme Court and High Court will have to be read to know the Grounds under which the Transfer can be granted.
3.2. In a Book about Pleadings, it is not possible to explain all the Sections governing the Rule of Transfer. In this Book the intention is only to provide general out-line and a Specimen Transfer petition. Pleadings book cannot replace the study of Procedural Laws.
4. DIFFERENT PETITION or MISC APPLICATION:- When there is already existing case is neglected by Respondents and they had filed their own cases, in that case at the first case a Misc Application can be moved to get other cases transferred to this Court = Court where the first case filed. This type of TPs are not having any allegations against Judiciary.
4.1. If a single case is to be transferred from one place to another, at that time a separate file is created to decide that TP.
4.2. In both the cases, the Legal Provisions quoted will be same. For Example, Sections 24 and 151 of Code of Civil Procedure, 1908, are quoted in two of the Case Laws given in this chapter, to demonstrate above paras.
5. For sufficient reasons, the Courts can be changed. When a Case is Transferred, it can be of following types:-
5.1. At the same place, Taluk or District; to another Court. Examples: From Special Executive Magistrate Court for Meerut District to the similar Court of another District of State of UP. For such transfer the Petition will have to be filed in the Court to which they are Administratively subordinate. For Example, to transfer the cases from Judicial Magistrate-I’s Court, the Application should be filed before the Chief Judicial Magistrate’s Court. It may be noted that, when a Private Complaint is filed, it is also filed not directly to the concerned Magistrate, but to the CJM Court. To transfer from Addl District Judge’s Court, the Transfer Petition should be filed at District Judge’s Court. To transfer from Addl Sessions Judge’s Court, the Transfer Petition should be filed at Session Judge’s Court.
5.2. There can always be a confusion, what to do to get a case transferred from the Court to District Judge or Sessions Judge’s Court to another ADJ or ASJ Court. Answer is, unless the Section stipulates, it should be moved before the Same Judicial Officer who hears the main case, that is Chief Judicial Magistrate, District Judge or Sessions Judge.
5.3. Practically this type of cases very rarely arises. Chief Judicial Magistrate may be a person who is recently promoted from the rank of Judicial Magistrate to Sessions Judge’s rank, thus normally under Probation and do not take the risk of having complaints against him. The District Judge and Sessions Judge are eagerly looking to get Elevated/ Promoted as Judges of respective High Courts and they also do not do anything by which there will be a complaint against them. Please note that, the Subordinate Judicial Officers are subjected to Complaints at their High Courts, Anonymous and with complainants names. Thus unless the Litigants are fearing the Judges, they do not have a lot of Power.
5.4. As on today, in India there is good complaint mechanism in India, against Police, Judicial officers and other Govt Machinery. Besides that there is Writ Jurisdiction with High Court and Supreme Court. Because of Reservation Policy, and presence of Multi-party Democracy, even persons from Poor families are getting appointed to sensitive posts. Police Department have various names now: “Local Police”, Crime Branch, Anti-corruption Police, CBI, Lok Ayukta police etc. Thus, injustices are done very rarely. However if a person himself had done wrong to the opponent, he may not complain against a Policeman or Judicial Officer.
6. To transfer from one District Judge’s Court to another District, the High Court will have to be applied. To challenge the order passed in TP, by District Judge/ Sessions Judge/ CJM is also at High Court or Sessions Court as Revision.
7. To Transfer from one State to another State, the TP can be moved at High Court or Supreme Court, and it is called concurrent jurisdiction. When there is concurrent jurisdiction, it is the high Court which should be approached at first instance.
8. Principles of Transfer common for all types of cases are given as the Case Laws.
9. Code of Criminal Procedure, 1973 -- Section 406 -- Transfer of case -- Medical grounds -- Complaint under Section 138 of the Negotiable Instruments Act -- After perusing the certificates issued by the different hospitals, where the petitioner had undergone treatment for his heart ailments and also taking into consideration the certificate issued by the doctor who is performing the dialysis once in two weeks and has also advised him not to travel a long distance, the court directed the Judicial Magistrate, First Class, at Ludhiana, Punjab, to transfer the case to the District Judge, Tis Hazari Courts, Delhi. Harbans Lal and Sons & Anr. Versus Ramson Cycles Pvt.Ltd., 2009 (2) Scale 46 : 2009 Legal Eagle (Cri) 2017.
10. Transfer Petition – Three cases at three courts of different levels about only one property, on three different laws – Two cases transferred to the Court of first case – Misc Application moved in the first Case – Held: I am of the opinion that where prima facie this Court is satisfied on the grounds put forward by the plaintiff in the transfer application that all the suits relates to the same subject matter, the Court should pass an order for transfer without entering into the controversy in the suit. Section 24 CPC confers comprehensive power on the Court to transfer suits, appeals or other proceedings “at any stage” and the Court may not enter into merits of the matter as it may affect the final outcome of the proceeding or cause prejudice to one or the other side. In the case at hand, prima facie, it appears from the facts as averred in the plaint and the written statements filed by the defendants that all the three matters i.e. the present suit for declaration, partition, possession, rendition of accounts and permanent injunction of immovable property, the probate case and the succession case involve the same core issue with regard to the immovable properties and movable properties of the deceased Sh. B.S. Ramdas Kapoor and Smt. Achla Kapoor. No doubt, jurisdiction and prayer made in the three cases are distinct and in the Probate Proceedings initiated by the defendant No.1, examination-in-chief of two witnesses have been recorded, but in totality of the facts and circumstances appearing in the case and looking at the overall view of the nature of the case and convenience of the parties, it would be just and reasonable to direct transfer of both the matters to this court. Since all the matters refer to the same properties and between the same parties. In the interest of justice and fitness of things, this Court is of the opinion that the application filed by the Plaintiff under Section 24 of Code of Civil Procedure is allowed and Probate Case No.116/07 pending before Additional District Judge, Delhi and Succession Case No. 866/07 pending before Administrative Sub Judge, Delhi, shall now on communication by this court be transferred before this court and all the three matters shall be heard and decided together. The Probate Case would be the lead case in which the examination-in-chief of two witnesses have already been examined. It is also made clear that evidence already recorded will be conducted from the same stage and shall not be recorded de novo. Paras 17 to 19 of Meera Dhingra Versus Deepak Kapoor & Ors., 2009 (109) DRJ 557. Inter-locutory Application No.4562/2008 under Section 24 read with Section 151 CPC in CS (OS) No.1176/2007
11. Transfer Petition – Case filed at District Court is Transferred/ Withdrawn to the files of High Court for decision - This petition on behalf of the petitioner under Section 24 read with Section 151 of the Code of Civil Procedure, 1908 (in short the 'CPC') seeks transfer of the suits between the parties to the present petition, pending before the District Courts, Delhi as prayed in paras 11 to 16 of the petition. After considering the facts narrated in the petition and after perusing the provisions of Section 24(1)(b) of the CPC permitting the withdrawal of the suit pending in the subordinate Courts for disposal before this Court, Case pending before the District Court was withdrawn/ transferred to High Court. Paras 2 and 3 of O.M.P. 365 of 2004 decided on 10-Nov-2004, titled Hotel Scopevista Ltd. Versus Shobhnath Singh, 2005 (3) AD(Del) 161 : 2005 (116) DLT 40.
12. Transfer Petition – On the Ground that, opposite party is pretending ability to influence the Trial Court Judge by using influential people’s name – That is not a ground to transfer the case – Held: para 8. The next contention of learned counsel for the petitioner that respondent Nos. 1 to 6 are trying to over-awe the Additional District Judge by filing affidavits stating their connection with various authorities can hardly be a ground for transfer. To hold that in affidavits where the deponent throws influential names would over-awe the Additional District Judge would be very uncharitable to him. Surely, the Additional District Judge has sufficient powers to meet with any exigency that may arise in the matter and to say the least his shoulders are broad enough to stand any attempted brow-beating. Even otherwise, I do not find this to be a ground for transfer of suit under Section 24 of the CPC. Om Parkash Goel Versus Jai Prakash Goel, 2003 (108) DLT 710 : 2003 LE(Del) 670.
13. Transfer of Cases – From one State to another State – Transfer of Appellate and Revisional Jurisdictions also implies - the place of commission of offence is not relevant – Held: Paras 16 and 17 - Section 406 of Criminal Procedure Code, 1973 gives the power to the Supreme Court to transfer a criminal trial inter alia from a criminal Court subordinate to one High Court to another criminal Court subordinate to another High Court. In exercise of that power and pursuant to the order of the Supreme Court, the trial was transferred from the sessions Court at Ghaziabad (subordinate to Allahabad High Court) to the Sessions Court in Delhi (subordinate to Delhi High Court). Thus, the trial took place at Delhi by an Additional Sessions Judge of Delhi State, the conviction was recorded by the said Delhi Court at Delhi and, therefore, the "High Court" for the purpose of Section 374 (2), Cr.P.C. would also mean the High Court of Delhi State. The Additional Sessions Judge of Delhi was not acting as a Judge of Uttar Pradesh while holding the trial. The learned Judge while holding the trial was not subordinate to the Allahabad High Court but continued to be sub ordinate to the Delhi High Court. The appeals ordinarily lie from the decisions of that Court to the Delhi High Court. Vikas Yadav Versus State of U.P, 2008 (7) ADJ 567 (Allahabad).
14. Transfer of Cases – From one District of the State to another District of the State – Transfer of Appellate and Revisional Jurisdictions also implies - the place of commission of offence is not relevant – Para 21. Moreover, whenever, civil suits or criminal trials before Magistrates are transferred by the High Court from one district to another in exercise of powers of Section 24, C.P.C. or Section 407, Cr.P.C. and appeals or revisions from such suits or trials lie before the District Judge, it is always the District Judge of the district to which the case has been transferred, who hears the revisions and appeals and not the District Judge of the place from which the case has been transferred. Vikas Yadav Versus State of U.P, 2008 (7) ADJ 567 (Allahabad).
15. Transfer of Cases – Media Trial Vs. Courts Trial – Victim of Media Trial prays for Transfer on the ground of defamation caused by Media and Court may follow that opinion - In this country there is complete separation of Judiciary from the Executive and Judges are not influenced in any manner either by the propaganda or adverse publicity, Cases are decided on the basis of the evidence available on record and the law applicable – Rejecting prayer for Transfer, Held: Para 9. At the outset, we may state that this petition is filed for transfer of case from the High Court of Kerala to the High Court of Karnataka on the ground of alleged adverse publicity in the press/ News papers in the State of Kerala. This contention is apparently raised at a belated stage i.e. after lapse of four years from the date of filing of the appeal in the High Court. Petitioner has not raised any objection with regard to hearing of the appeal by the Kerala High Court when the matter was heard by the learned Single Judge in 1998, who subsequently referred it to a larger Bench. Even in the representation before the Chief Justice, he has not raised the said contention. Therefore, elaborate submissions made in the transfer petition that a fair trial will not be possible in the State of Kerala as political parties in power have created such a situation that justice, fairness and rule of law cannot be expected in cases against the petitioner and that any person can be influenced consciously or subconsciously by the adverse publicity against the petitioner, are required to be rejected. Apart from not raising objection for a period of four years, we would further state that in this country there is complete separation of Judiciary from the Executive and Judges are not influenced in any manner either by the propaganda or adverse publicity. Cases are decided on the basis of the evidence available on record and the law applicable. Granting such application and transferring the appeal from High Court of Kerala to High Court of Karnataka would result in casting unjustified aspersion on the Court having jurisdiction to decide the appeal on the assumption that its judicial verdict is consciously or subconsciously affected by the popular frenzy, official wrath or adverse publicity, which is not the position qua the judicial administration in this country. We would also mention that at the time of hearing the learned Counsel has not raised this contention. R.Balakrishna Pillai Versus State of Kerala, 2000 Legal Eagle(Cri) 1330 : 2000 AIR(SC) 2778.
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SPECIMEN No-1 OF TRANSFER PETITION
1. Question:- Mr. Abc, who is your client, is an Ex-Publisher with Copyrights over Trade-name/ Trade-mark over Detective/ Crime Novel books: “King Cobra”, which is a Pen-name. He stopped publication of books very long back. Other publishers started to sell books written by some other authors, with the said Trade-name/ Trade-mark/ Pen-name. Mr. Abc issued Pre-suit Notice, to restrain said Offence, which is called “Passing Off”. Prior to your client filed his suit at Delhi, the other party had filed Suits to restrain your client at their place of business, which is Mumbay. The Law regarding “Passing Off” since 2005 Judgment of Supreme Court, as interpreted by Judgment of Delhi High Court is, Mr.ABC can file his Suit only at the place of Defendants. However, your client could find that, the Books are selected, printed and marketed at Delhi; and only Mumbai address is given. Now he want to get the Suits filed against him to be got transferred to Delhi, for joint trial at Delhi along with his suit. Draft a Transfer Petition (Civil), at the Supreme Court. Why he is not approaching the Mumbai HC, u/s 23(3) CPC is also to be explained by your client.
2. Please note, at the Supreme Court of India, even when more than one cause is clubbed in only one Petition, number of causes will be counted and such numbers will be given to only one file and Court Fee also will have to be filed for the said large number of causes. The savings will be only for Affidavits, paper book, photocopy etc.
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IN THE HON’BLE SUPREME COURT OF INDIA
T.P.(C) No. 1 to 6 of year.....
SIX TRANSFER PETITIONS
IN THE MATTER OF:-
Mr. ABC, aged 70 years, son of Mr. Def, Address:- .....
.... Petitioner.
VERSUS
01. M/S ghi Publications, Address: Mumbai, Maharashtra.
2nd Address:- Plaintiff in Suit No.... before Hon’ble Distt. Judge, Mumbai, Maharashtra.
02. M/S jkl Publications, Address: Mumbai, Maharashtra.
2nd Address:- Plaintiff in Suit No.... before Hon’ble Distt. Judge, Mumbai, Maharashtra.
03. M/S mno Publications, Address: Mumbai, Maharashtra.
2nd Address:- Plaintiff in Suit No.... before Hon’ble Distt. Judge, Mumbai, Maharashtra.
04. M/S pqr Publications, Address: Mumbai, Maharashtra.
2nd Address:- Plaintiff in Suit No.... before Hon’ble Distt. Judge, Mumbai, Maharashtra.
05. M/S stu Publications, Address: Mumbai, Maharashtra.
2nd Address:- Plaintiff in Suit No.... before Hon’ble Distt. Judge, Mumbai, Maharashtra.
06. M/S vwx Publications, Address: Mumbai, Maharashtra.
2nd Address:- Plaintiff in Suit No.... before Hon’ble Distt. Judge, Mumbai, Maharashtra.
.....Respondents
AND IN THE MATTER OF:-
PETITION FOR TRANSFER OF 6 CIVIL SUITS FROM HON’BLE DISTRICT JUDGE’S COURT, Mumbai, Maharashtra; TO HON’BLE DISTRICT JUDGE’S COURT, DELHI.
CAUSE TITLES OF THE SUITS PENDING BEFORE HON’BLE DJ, Mumbai, Maharashtra, WHICH ARE PRAYED TO BE TRANSFERRED TO THE HON’BLE COURT OF DJ, DELHI ARE:-
(Sl.No.1) SUIT No...... TITLED M/S ghi Publications Vs. Mr. Abc; WITH
(Sl.No.2) SUIT No...... TITLED M/S jkl Publications Vs. Mr. Abc; WITH
(Sl.No.3) SUIT No...... TITLED M/S mno Publications Vs. Mr. Abc; WITH
(Sl.No.4) SUIT No...... TITLED M/S pqr Publications Vs. Mr. Abc; WITH
(Sl.No.5) SUIT No...... TITLED M/S stu Publications Vs. Mr. Abc; WITH
(Sl.No.6) SUIT No...... TITLED M/S vwx Publications Vs. Mr. Abc.
THESE CASES MAY KINDLY BE TRANSFERRED TO THE HON’BLE COURT OF DISTRICT JUDGE, DELHI AND BE TRIALED JOINTLY WITH THE SUIT FILED BY THE TRANSFER PETITIONER, WHICH IS NUMBERED SUIT No...... AND TITLED Mr. Abc VERSUS M/S ghi Publications and OTHERS, ARISING FROM THE SAME CAUSE OF ACTION, IN WHICH INTER ALIA; ALL THESE RESPONDENTS ARE DEFENDANTS; WHICH IS PENDING IN THE HON’BLE COURT OF ADJ Number... TIS HAZARI COURTS, DELHI;
AND IN THE MATTER OF:-
TRANSFER PETN U/A: 139-A(2) of C.O.I. AND Sec.25, CPC. READ WITH Sec.142(2) TRADE MARK ACT AND Sec.60 ‘PROVISO’, COPYRIGHT ACT.
To,
The Hon’ble Chief Justice of India
and his Companion Justices of the
Hon’ble Supreme Court of India,
The Transfer Petition of the petitioner
MOST RESPECTFULLY SHEWETH:-
1. This Petition is to get 6 Civil Suits transferred from the Hon’ble Court of Hon’ble Distt. Judge, Mumbai, Maharashtra. to the Hon’ble Court of Distt. Judge, Delhi; where the Transfer Petitioner is the “Defendant no-1” in all cases and the Respondents to this TP are “Plaintiffs” in each of those six cases. The Plaint/Suit of those six cases are Annexed. The Age of parties are also a good ground in favour of the transfer petitioner. He is 70 years old, but the respondents are aged 32 to 52 years.
2. The petitioner is a Senior Citizen, accountant, aged 70 years, who is an Accountant in a Furniture shop, with a monthly salary of Rs.5000/-. He is not in any Publishing business. He is poor and not in a spending capacity.
3. The petitioner is owner of Copy-right of about 80 Detective/ Crime novels written by famous Hindi Novel Writer Late Sh. “King Cobra, alias Mr.aaa”. During the life time, “King Cobra” could write only 126 novels.
4. This TP(C) is about Deceased Author “King Cobra, alias Mr.aaa”. He departed for his heavenly abode on 30-11-1993. The typed true copy of the Death Certificate and photocopy of the photograph is Annexed herewith and marked ANNEXURE P-1.
5. In the year 2004, the petitioner wanted to re-print the “King Cobra” novels, for which he has copyright. He made a market survey. He was thinking that, due to non-publications, those novels will not be available in the markets. However, he was surprised to find a large number of “King Cobra” Novels, which were never written by the deceased author, and giving the deceased’s photograph in the back title page of each novels. These books also declares that, it is the new book of “King Cobra” and also requests comments and feed backs from the readers in the name of “King Cobra, C/O publisher’s address”, as if the deceased Mr.aaa is alive even today. He found the details of the six respondents and other 7 publishers, whose details can be known from the Annexures to this TP(C), in them. Those respondents are, like what happens in any other litigations, the previous friends (that is, till sending pre-suit notice).
6. That petitioner has received serious shock, mental torture. pain, agony and sufferings on account of finding counterfeit, passing off, cheap literature, in his chosen TRADE NAME, which he, later on permitted his friend and relative, to use as PEN NAME.
7. The petitioner told those respondents in very clear terms that, he is unhappy that, cheap quality pornography is being printed in the trade name “King Cobra”, which had been invented by him. Now he wishes to re-print original novels, thus, the Counterfeit and Passed-off novels are to be withdrawn. He paid 4 visits and spoke to all these respondents and other 7 publishers. Who were very co-operative while addressing a senior member of their profession, the petitioner, and promised to stop publishing and selling of counterfeit books. They further promised to withdraw offending books from the market, at the willingness to suffer loss. However, none of those promise were materialised.
8. List of books not being written by late “Sh.aaa alias King Cobra” but written by ghost authors and published by each respondents and other 7 publishers are given in Annexures.
9. On date:....., the petitioner wrote his Notice U/S 80 CPC to Railways and under laws of Trade Mark and Copy Right, to respondents and other 3 publishers. A true copy of the said notice is enclosed and marked ANNEXURE P-2. The petitioner narrated the names of original 126 novels and Counterfeit novels of each respondents/publishers. It was send by Regd.Post to them. The 6 postal receipts of posting the envelops from Delhi is Annexed and marked ANNEXURE P-3 (collectively). Thereafter on date:..... he wrote similar one more notice to other 4 publishers, which is not relevant in this TP(C). (Thus total 13 publishers defendants in Delhi Suit).
10. The petitioner had, always been open to the idea that, deceased author “King Cobra” must have written novels, other than those 126 novels, and gave copyright to the ADDRESSEES. Thus, he wanted to examine the source of all the novels, before he could spend his money in any Court Case. Thus, he wrote para 3 in his Pre-suit Notice, Annexure P-2. The same is QUOTED to enable this Hon’ble Court to analyse the mind of the petitioner, on the date of Pre-suit notice:-