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    Wednesday, 2 March 2016

    Withdrawal and Transfer of Suits

    1. Introduction
    Provision of section 24, without specifying any grounds, empowers to High Court and District Court to transfer, withdraw and retransfer at any stage, any pending suit, appeal or other proceedings from one subordinate court to another court either suo-motu or upon the move of aggrieved party.

     2. General Power of Transfer and Withdrawal under section 24 of CPC

    1. On the application to any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage,

    a. Transfer any suit, appeal or other proceeding pending before it for trail or disposal to any court subordinate to it and competent to try or dispose of the same , or

    b. Withdraw any suit, appeal or other proceedings pending in any court subordinate to it and
    i. Try or dispose of the same, or
    ii. Transfer the same for trial or, disposal to any court subordinate to it and competent to try or dispose of the same, or
    iii. Retransfer the same for trial or disposal to the court from which it was withdrawn.

    2. Where any suit or proceeding has been transferred or withdraw under sub-section (1), the court which thereafter tries suit may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

    3. For the purpose of this section, courts of additional and assistant judges shall be deemed to be subordinate to the District Court.

    3. Duty of Court
    When transfer is made on an application, Court must act judicially guided by its sense of justice, on objective consideration and not subjectively.

    4. Exercise of Jurisdiction under section 24

    The basic criteria for exercising of jurisdiction under section 24 CPC in the matter of transfer of a suit is the existence of a reasonable apprehension in the mind of a party that it will not get justice at the hands of the presiding office.

    5. Conditions for transfer of a case

    Before a valid order for transfer can be passed;
    i. The suit or other proceeding must have been pending in a court competent to try it.
    ii. The transfer court must be subordinate to the court making transfer order.
    iii. The transferee court should be competent to try or dispose of the suit, which competency does not only include pecuniary, but also territorial competency.
    To consider transfer application, the court must be satisfied that there are reasonable grounds to suppose that the applicant will not receive a fair and impartial trial and would not get justice from a particular court.

    Reasonable Apprehension
    What is a reasonable apprehension must be decided in each case with reference to the incidents and surrounding circumstances.

    6. Power of High Court to Transfer case

    i. Power of High Court under Section 24
    Power of High Court under section 24, CPC is equivalent to power under Article 203 of the Constitution of Pakistan., for administrative reasons and in the interest of justice, High court has wide powers to transfer a case even, outside the territorial limits of the district for administrative reasons in the interest of justice and fair play.

    ii. High Courts General Powers of transfer
    High court has general power to transfer, withdraw and retransfer at any stage a pending suit, appeal or other proceedings;
    i. Suo motu under section 24 CPC
    ii. under section 151 CPC
    iii. under article 203 of the constitution of Pakistan 1973
    The High Court can retransfer an appeal pending even it stands transferred by operation of law. The same powers are available under section 25-A, West Pakistan Family Court Act, 1964.

    Iii. Important condition
    The court, in which the suit, appeal or any proceedings is pending must be a court of competent jurisdiction, the court to which the suit, etc., is to be transferred should be competent to try or dispose of the controversy.

    7. Power of District Judge under section 24

    District judge under section 24 of CPC has to decide the case of transfer or withdrawal after notice to other party. Decision taken in the absence of opposite party would be a mere irregularity especially when on prejudice is proved.

    8. Effect of order of transfer of case
    Order of transfer becomes effective as soon as made, its effectiveness would not depend upon its conveyance to subordinate court.

    Conclusion

    To conclude that under section 24 of CPC to empowers High Court and District Court to transfer, withdraw and retransfer at any stage, any pending suit appeal or other proceedings from one subordinate court to another court either suo motu or open the move of aggrieved party.
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    Item Reviewed: Withdrawal and Transfer of Suits Rating: 5 Reviewed By: Usman Ali
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