Applications for Transfer Under Article 139A(2) of the Constitution and Section 25 of the Code of Civil Procedure, 1908

Introduction:

The transfer of cases between courts is a critical aspect of ensuring justice is dispensed effectively and fairly in India. Under Article 139A(2) of the Constitution of India and Section 25 of the Code of Civil Procedure, 1908, the Supreme Court has the power to transfer cases from one High Court to another or from a lower court to a higher one, particularly when the case involves significant legal questions or fairness issues.

This transfer mechanism is essential to avoid situations where local bias or undue delays could hinder the delivery of justice. The procedure is governed by the rules specified under Order XLI of the Supreme Court Rules.

Key Steps for Filing a Petition for Transfer:

1. Petition Filing:
   • A petition under Article 139A(2) of the Constitution or Section 25 of the CPC must be filed in writing.
   • The petition must clearly state the facts and particulars of the case, including the name of the High Court or other Civil Court where the case is pending. It should also specify the grounds on which the transfer is sought.
   • Additionally, the petition must be accompanied by an affidavit that supports the request for transfer, providing the court with necessary factual and legal details.

   The petition must also outline why the transfer is necessary, whether it concerns convenience, fairness, or the involvement of substantial questions of law.

2. Preliminary Hearing:
   • Once the petition is filed, it is scheduled for a preliminary hearing before the Court.
   • At this stage, the Court assesses whether the petitioner has made a prima facie case for transferring the case. If the Court is not satisfied that a valid case for transfer has been presented, it will dismiss the petition.
   • If the Court finds merit in the petition, it will issue a notice to the parties involved in the case, asking them to show cause as to why the case should not be transferred.
3. Issuance of Notice:
   • The notice issued to the parties must be served at least four weeks before the final hearing date. This provides adequate time for the parties to respond to the petition.
   • After the notice is served, affidavits in opposition must be filed in the Registry of the Court, no later than one week before the hearing date. These affidavits should outline the reasons why the transfer should not take place.
   • A reply affidavit must be filed by the petitioner two days before the hearing. This allows the petitioner to respond to any opposition raised.

   It is crucial that all affidavits are properly signed and contain endorsements of service, indicating that they have been duly served on the opposing parties.

4. Final Hearing:
   • After all the affidavits are filed, the petition will be listed for final hearing before the Court.
   • The Court will then make a decision based on the submissions made, the facts presented, and the legal arguments put forward during the hearing.
5. Other Applicable Provisions:
   • If the petition is allowed and the case is transferred, the provisions of Order LI of the Supreme Court Rules may also apply. This includes rules regarding the preparation and submission of records, filing of written briefs, and the procedural requirements for both parties involved.

Important Considerations for a Transfer Petition:

• Grounds for Transfer:
  The grounds for transfer under Article 139A(2) and Section 25 of the CPC generally relate to convenience, impartiality, and ensuring justice. If the petitioner feels that there may be local bias, or if there is a delay in the proceedings that could affect the fairness of the case, they may seek a transfer to a different court.
• Role of Legal Representation:
  Legal counsel plays a vital role in presenting a compelling argument for the transfer of a case. It is crucial that the petition be well-supported with facts and that the legal grounds for transfer are presented clearly. Lawyers may also assist in responding to opposing arguments during the final hearing.
• Timeliness of Filing:
  It is crucial to ensure that all filings, including affidavits and replies, are submitted within the prescribed deadlines. Delays could result in the petition being dismissed or rejected, leading to further complications.

Conclusion:

The process of seeking a transfer of a case under Article 139A(2) and Section 25 of the CPC is a strategic legal tool to ensure that cases are heard in a fair, neutral, and efficient manner. By following the procedural requirements set out in Order XLI, parties can seek to have their cases transferred when justified by the circumstances.

Whether you are seeking a transfer for reasons of fairness, judicial impartiality, or expediency, understanding the procedural requirements is essential. Legal advice and expertise can ensure that your transfer petition is filed accurately and timely. If you are in need of legal assistance with filing a transfer petition in the Supreme Court, it is recommended to seek consultation from experienced legal professionals who can guide you through the process effectively.