CASUS OMISSUS

Seaford Court Estates Ltd v. Asher. [1950] 2 All ER 1226 at

1236. (Lord Denning) We do not sit here to pull the
language of Parliament and of Ministers to pieces and
make nonsense of it. That is an easy thing to do, and it
is a thing to which lawyers are too often prone. We sit
here to find out the intention of Parliament and of
Ministers and carry it out, and we do this better by
filling in the gaps and making sense of the enactment
than by opening it up to destructive analysis.
Lucy v. Henieys Telegraph Works Co.Ltd (1969) 3
All ER 456
• “Faced with glaring injustice, the judges are, it
is said, impotent, incapable and sterile. Not so
with us in this court- whenever the strict
interpretation of a statute gives rise to an
absurd and unjust situation, the judges can
and should use their good sense to remedy it
by reading words in, if necessary, so as to do
what parliament would have done had they
had the situation in mind.”
 ID ACT, 1947

• (j) "industry" means any business, trade,

undertaking, manufacture or calling of
employers and includes any calling, service,
employment, handicraft, or industrial
occupation or a vocation of workmen”
• Banglore Water supply Board v. A Rajjappa
AIR 1978 SC 548.
 Durgesh Sharma
Vs.
Jayshree AIR 2009 SC 285

• Judges
C.K. Thakker and D.K. Jain, JJ.
• Code of Civil Procedure, 1908 - Sections
23 (3) and 25
•
 Cont…
• To appreciate the controversy, it is appropriate to set
out facts of the case. The appellant herein Durgesh
Sharma is the husband of the respondent Smt.
Jayshree Sharma. Marriage of the parties was
solemnized at Malegaon, District Nasik in the State of
Maharashtra on May 16, 1989. It is not in dispute
that after the marriage, both the parties lived in
Ujjain in the State of Madhya Pradesh.
 Cont…
• It is the case of the husband that the wife is quarrelsome. She used
to raise disputes with the husband and his family members on
petty matters. She also threatened the husband that in case she
would be kept at Ujjain against her wishes, she would consume
poison. It is also the allegation of the appellant- husband that
respondent-wife left matrimonial home in 1991. She thereafter
stayed with her parents and at parental home, gave birth to twins.
She stayed at parental home from 1991 to 1997. In 1997, the
respondent-wife came to Ujjain, but after about 3-4 months, she
again left matrimonial home and deserted the husband
permanently without proper or sufficient reason. The husband's
prestige has been badly affected by the conduct of the wife.
 Cont…
• The appellant-husband served a notice
through his advocate to the respondent-wife
on September 22, 2004 to join him to which a
reply was sent by the wife through her counsel
on October 08, 2004 wherein false allegations
have been levelled against the husband which
clearly went to show that she was not
prepared to stay with the husband.
 Cont…
• Since the respondent-wife did not return matrimonial
home, the appellant-husband instituted a petition under
Section 13 of the Hindu Marriage Act, 1955 (hereinafter
referred to as `the Act') on October 27, 2004 in the Family
Court at Ujjain which was registered as HMA Petition No.
164A of 2004 for dissolution of marriage on the grounds
of (i) desertion; and (ii) cruelty. The appellant husband has
stated in the petition that both the parties lastly lived
together at Ujjain as husband and wife. Ujjain Court has,
therefore, jurisdiction to entertain, try and decide the
petition.
 Cont…
• She also refuted the allegation of having deprived the
husband of matrimonial enjoyment and she had
subjected him (husband) to physical as well as mental
cruelty and torture. She denied that prestige of the
husband had been badly affected in the society
because of the conduct of the respondent-wife. She
stated that her husband took away all the ornaments,
jewellery and garments from her. Though sufficient
amount of dowry was given to the husband, still he
was insisting for additional amount and other articles.
 Cont…
• She also stated that she was staying at Malegaon,
District Nasik in Maharashtra which was at a distance of
about 400 kms. from the city of Ujjain. Parents of the
respondent- wife were very old. Business of her father
was closed. Her brothers had been working separately
and were maintaining their own families. She had,
therefore, to travel at such a long distance all alone
which was very difficult. She also contended that Ujjain
Court had no jurisdiction to entertain, try and decide the
petition. A prayer was, therefore, made to dismiss HMA
with costs.
 Cont…
• Proceedings were also initiated by the respondent-wife
under Section 125 of the Code of Criminal Procedure,
1973 at Malegaon for maintenance as also under Section
24 of the Hindu Marriage Act at Ujjain. We are, however,
not concerned with those proceedings in the present
case.
• It may be stated that the respondent- wife also filed an
application under Section 9 of the Act for restitution of
conjugal rights in the Court of Civil Judge, Senior Division,
Malegaon being HMP No. 42 of 2005 on March 23, 2005.
 Cont…
• Immediately thereafter, the wife preferred an
application under Section 23 of the Code of Civil
Procedure, 1908 (hereinafter referred to as `the
Code') in the High Court of Madhya Pradesh (Indore
Bench) for transfer of Ujjain case instituted by the
husband being HMA Petition No. 164A of 2004
titled Durgesh Sharma v. Smt. Jayshree Sharma
pending in the Family Court at Ujjain to a Court of
competent jurisdiction at Malegaon, District Nasik
in the State of Maharashtra.
 Cont…
• The High Court vide the impugned order
dated January 25, 2007 allowed the
application and transferred HMA 164A of 2004
pending the Family Court, Ujjain to a
competent Court at Malegaon through District
Judge, Nasik. It is this order which is
challenged in the present appeal.
 Cont…
• The learned Counsel for the appellant contended that the
High Court was wholly wrong in transferring a case
pending in a Court subordinate to the said High Court to a
Court subordinate to another High Court. A High Court
does not possess that power and as such, the High Court
of Madhya Pradesh could not have transferred a case to a
Court subordinate to the High Court of Bombay. On that
ground alone, the order passed by the High Court
deserves to be set aside. It was also submitted that even
on merits, no ground for transfer of case was made out by
the respondent-wife.
 Cont…
• The learned Counsel for the respondent, on the other hand,
submitted that the order passed by the High Court is in
consonance with law. It was urged that if the High Court is
satisfied that a proper case has been made out for transfer
of a case from a Court subordinate to the said High Court to
a Court subordinate to different High Court, in exercise of
power under Sub-section (3) of Section 23 of the Code such
order can be made.
• On the facts of the case, it would be very difficult for the
respondent-wife to travel a distance of about 400 kms. all
alone and hence discretion was exercised by the High Court.
 Cont…
• As a general rule, the plaintiff as dominus litis has a
right to choose his/her own forum where there is
more than one Court in which such suit may be
instituted. Normally, the defendant cannot insist
that instead of Court A, the plaintiff should file a
suit in Court B. But the right of the plaintiff to
choose a forum is not arbitrary, absolute or
uncontrolled and in appropriate cases, a superior
Court may transfer a case pending in one Court to
another Court.
 Cont…
• 23. To what Court application lies. (1) Where the several
Courts having jurisdiction are subordinate to the same
Appellate Court, an application under Section 22 shall be
made to the Appellate Court.
• (2) Where such Courts are subordinate to different
Appellate Courts but to the same High Court, the
application shall be made to the said High Court.
• (3) Where such Courts are subordinate to different High
Courts, the application shall be made to the High Court
within the local limits of whose jurisdiction the Court in
which the suit is brought is situated.
 Cont…
• 25. Power of Supreme Court to transfer suits, etc.
• (1) On the application of a party, and after notice to the parties, and after hearing such of them as
desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section
is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred
from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other
State.
• (2) Every application under this section shall be made by a motion which shall be supported by an
affidavit.
• (3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any
special directions in the order of transfer, either retry it or proceed from the stage at which it was
transferred to it.
• (4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that
the application was frivolous or vexatious, order the applicant to pay by way of compensation to any
person who has opposed the application such sum, not exceeding two thousand rupees, as it
considers appropriate in the circumstances of the case.
• (5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be
the law which the Court in which the suit, appeal or other proceeding was originally instituted ought
to have applied to such suit, appeal or proceeding.
 Cont…
• We are unable to uphold the contention. In our considered
view, the fallacy in the argument lies in the fact that it
presumes and presupposes that Section 23 of the Code is a
substantive provision which authorizes a Court mentioned
therein to order transfer. It is not so. The said section, as held
by us, is merely a procedural one or a machinery provision and
provides mode, method or manner in approaching a Court for
making an application. It does not empower a Court to effect
transfer. Moreover, Section 25 of the Code is a 'complete Code'
dealing with substantive as well as procedural law. Section 23,
in our opinion, therefore, cannot be interpreted in the manner
suggested by the learned Counsel appearing for the wife.
 Cont…
• After the commencement of the Constitution and establishment of the Supreme Court (this
Court), Parliament thought it proper to amend Section 25 of the Code and accordingly, it was
substituted by empowering this Court to order transfer from one High Court to another High
Court or to one Civil Court in one State to another Civil Court in any other State. It is, no doubt,
true that even when Section 25 in the present form was substituted by the Amendment Act of
1976, Sub-section (3) of Section 23 of the Code has neither been deleted nor amended. That,
however, is not relevant. Since in our considered view, Section 23 is merely a procedural
provision, no order of transfer can be made under the said provision. If the case is covered by
Section 25 of the Code, it is only that section which will apply for both the purposes, namely,
for the purpose of making application and also for the purpose of effecting transfer. On the
contrary, reading of Sub-section (3) of Section 23 of the Code in the manner suggested by the
learned Counsel for the respondent-wife would result in allowing inroad and encroachment on
the power of this Court not intended by Parliament. Section 23, therefore, in our considered
view, must be read subject to Section 25 of the Code. The decisions taking a contrary view do
not lay down correct law. We, therefore, overrule them. Even if such power was with a High
Court earlier, it stood withdrawn with effect from January 01, 1977 in view of Section 25 of the
Code as amended by Code of Civil Procedure (Amendment) Act, 1976.
 Cont…
• We are unable to agree with the view that in such cases,
inherent powers may be exercised under Section 151 of the
Code as held by the High Court of Punjab & Haryana in State
Bank of India. It is settled law that inherent powers may be
exercised ex debito justitiae in those cases, where there is no
express provision in the Code. The said power cannot be
exercised in contravention or in conflict of or ignoring express
and specific provision of law. Since the law relating to transfer
is contained in Sections 22 to 25 of the Code, and they are
exhaustive in nature, Section 151 has no application. Even that
contention, therefore, cannot take the case of respondent-wife
further.
 Cont…
• Section 22 - Power to transfer suits which may be
instituted in more than one Court  Where a suit may be
instituted in any one of two or more Courts and is
instituted in one of such Courts, any defendant, after
notice to the other parties, may, at the earliest possible
opportunity and in all cases where issues are settled at or
before such settlement, apply to have the suit transferred
to another Court, and the Court to which such application
is made, after considering the objections of the other
parties (if any), shall determine in which of the several
Courts having jurisdiction the suit shall proceed.