Decision passed by the Delhi High Court

In the Krishna Devi Case, the Delhi High Court allowed transfer of an appeal from the Tis Hazari Court to the Saket District Court for lack of territorial jurisdiction with the Tis Hazari Court. The Delhi High Court observed –

“There is power in an appellate court to return the appeal under Order 7 Rule 10 CPC, however, that would lead to unnecessary trouble for the appellant in taking back the appeal and refiling the same with the competent court at Saket along with an application for condonation of delay, and in order to avoid such a situation Section 24 CPC was amended from 1976 by adding sub-section 5 that courts have power to transfer the matters from courts which do not have territorial jurisdiction to try the suit.”

Decision passed by the Kerala High Court

In the Cholasseri Case, the Kerala High Court allowed transfer of an appeal from a subordinate court, which lacked the pecuniary jurisdiction to entertain the appeal. The Kerala High Court observed –

“Repeated situations as aforenoted would have prompted the Parliament to amend Section 24 of the CPC in 1976, to include sub-section 5 therein, resultantly providing that a suit or proceeding may be transferred, under Section 24 of CPC from a court which has not jurisdiction to try. This position obviously indicates that instead of waiting for the process of returning plaint or appeal for representing it before the appropriate court, the superior court can withdraw or transfer such suits or proceedings. This power to transfer includes the power to transfer appeals as well.”

In the above decisions, both the Kerala High Court and the Delhi High Court did not deal with interpretation of Section 24(5) of the CPC, which does not include the word “appeal”. On the other hand, the AP High Court in the RINL Case not only considered the decisions passed by the Kerala High Court and Delhi High Court, but also dealt with the interpretation of Section 24(5) of the CPC, to consider whether an expansive interpretation could be given to the term “proceedings”, such that the Court’s powers under Section 24(5) of the CPC would also include powers to transfer an “appeal”.

In this article, the authors have analyzed the above decisions passed by the High Courts under Section 24(5) of the CPC and have made an attempt to understand the scope of the powers which could be exercised by the High Courts to transfer an appeal in terms of this provision.

High Courts’ jurisdiction to transfer an appeal under Section 24(5) of the CPC

Section 24(3) and (5) of the CPC are reproduced below:

“24. General power of transfer and withdrawal. – […]

(3) For the purposes of this section, —

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) “proceeding” includes a proceeding for the execution of a decree or order.

[…]

(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.”

On a bare reading of the above provision, it is evident that an “appeal” cannot be transferred by the High Court, which lacks jurisdiction, to the court of competent jurisdiction. One of the ways in which an “appeal” could be included under Section 24(5) of the CPC would be by giving an expansive interpretation to the term “proceeding” so as to include “appeal”. However, giving such an expansive interpretation may not align with legislative intent. This is because both sub-sections (3) and (5) under Section 24 of the CPC were introduced by way of an amendment in 1976. The legislature, while introducing these provisions, not only omitted to specifically mention the term “appeal” in Section 24(5) but also defined “proceeding” to include a proceeding for the execution of a decree or order (and not an appeal) under Section 24(3)(b) of the CPC.

Non-inclusion of “appeal” under Section 24(3)(b) reinforces the legislative intent to limit High Courts’ power in relation to transfer of an appeal under Section 24 of the CPC when the Court would otherwise lack jurisdiction to entertain the appeal. The AP High Court, while interpreting Section 24(5) of the CPC, took note of the 1976 amendment and observed – “In the process of this amendment, the term “appeal” had been omitted in Section 24(5) of C.P.C.” The AP High Court also placed reliance on the decision passed by the Supreme Court in Ram Chandra Aggarwal v. State of U.P., 1966 SCC OnLine SC 232. In this decision, the Supreme Court interpreted the term “proceeding” under Section 24(1)(b) of the CPC and held that it must necessarily mean a proceeding “other than a suit or an appeal”.

The term “proceeding” under Section 24(3)(b) of the CPC has been defined to include “proceeding for the execution of the decree or order”. In this regard, is noteworthy that the definition of “decree” under Section 2 of the CPC excludes “appeal”, on the ground that an adjudication against which an “appeal” lies is not a conclusive determination of the rights of the parties. Since the definition of “decree” excludes “appeal”, “appeal” cannot be read into the inclusive definition of “proceeding” under Section 24(3)(b) of the CPC.

The AP High Court’s decision is in line with settled principles of statutory interpretation

In B. Premanand v. Mohan Koikal, (2011) 4 SCC 266, the Supreme Court has held that where the legislative intent is clear from the language, the Court should give effect to it and should not seek to amend the law under the garb of interpretation, so as to expand the scope.

Further, in terms of the rule of construction – “expressio unius est exclusio alterus” (the express mention of one thing is the exclusion of all other) (ref. Indira Nehru Gandhi vs. Raj Narain, 1975 Supp SCC 1), it is not possible to read “appeal” in Section 24(5) of the CPC. The omission of the term “appeal” in Section 24(5), while present in Section 24(1) and 24(2) of CPC, makes it evident that the omission was not accidental but intentional.

Authors’ Remarks

In view of the above discussion, the authors are of the view that the decision passed by the AP High Court is based on the correct interpretation of Section 24(3) and 24(5) of the CPC. However, the objective of the legislature behind the omission of word “appeal” under Section 24(5) seems unclear. It is unclear as to why such power of transfer has been limited only to a “suit” and/ or a “proceeding” (not including appeals).

The power of courts to transfer cases under the CPC is critical for ensuring efficiency in legal proceedings. Limiting this power in relation to transfer of appeals by the legislature compromises this efficiency. In absence of such power, an appellate court would be required to return the appeal under Order 7 Rule 10 of the CPC and direct the appellant to refile the same afresh with a competent court. This would result in procedural delays.

It appears that the Delhi High Court and the Kerala High Court, by allowing transfer of an appeal under Section 24(5), have tried to fill the vacuum created by the legislature. However, the contrary approach taken by the AP High Court has resulted in ambiguity regarding the scope of power which could be exercised under Section 24(5) of the CPC. This brings into question the effectiveness of the amendments which were introduced by the legislature in 1976. Notably, before these amendments, there was no explicit provision in Section 24, conferring power on the High Court to transfer cases filed before courts which do not have jurisdiction. In the absence of legislative guidance on this issue, different High Courts, when such issues arose, passed contrary decisions regarding the power to transfer cases which were filed before courts lacking jurisdiction. The issue was sought to be addressed by way of 1976 amendments. However, High Courts have once again passed contradictory judgments in relation to transfer of appeals under the newly introduced Section 24(5) of the CPC.

Given the contrary decisions passed by different High Courts, it is imperative that the legislature clarifies this issue. In the alternative, it would benefit litigants if the Supreme Court were to settle the contrasting views taken by various High Courts once and for all.

This article was originally published in Lexology on 26 February 2025 Co-written by: Akshay Sharma, Partner; Vishal Hablani, Associate; Sambhav Sharma, Associate. Click here for original article

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