Objection as to jurisdiction not having been taken is the trial Court cannot be entertained in the High Court Division. Gopal vs Abdul. 35 DLR 14. The policy of the Legislature is to treat objections as to both territorial and pecuniary jurisdiction as technical and not open to consideration by an appellate court unless there has been a prejudice on the merits. Nagendra vs Saiyadali. 8 DLR 100; but when in an appeal against an order a ground was taken for the first time that the trial court was not validly constituted, then it was held that it could never be too late to admit and give effect to the plea that the order was a nullity. Chief vs Chief. 9 DLR (PC) 686.
S.22 lays down :(i) application should be made at the earliest opportunity or before the settlement of issues and (ii) with notice to the parties. Rajnath vs Vidyaram. AIR 1953 All 772.
Application for transfer is an original proceeding under section 141. Aleà vs Narayana. AIR 1949 Mad 283. [The power of High Court and District Judge are concurrent.] District Judge derives unfettered power of transfer or withdrawal of a case under section 24.
Additional District Judge shall be deemed to be subordinate to the District Judge. Mohammad vs Abul. 42 DLR 21. Power of the District Judge under this section somewhat of administrative nature and discretionary. In suitable case the District Judge can even suo moto exercise this power in the interest of justice. Bijoy vs Narendra. 43 DLR 68; and at any stage even when the case is a part-heard one. 10 CWN 12, but if the suit is not validly pending in the court of institution, no question of transfer from that court arises. Younus vs Hazera. 1981 BCR 144.
Where an application for transfer is moved before a court the court is to hear the application after issuance of notice on the other side Haroon vs National Bank. 48 DLR 283:10 BLD 225; Abdul vs Abdul. 17 BLD 268: 3 BLC 174; but where the court suo moto passes an order under section 24 no notice is required to be given to other parties. Sudhir vs Hazera. 48 DLR 190: 14 BLD 547.
The power conferred on the High Court Division under this section is an unfettered one and the High Court is empowered to transfer appeal to it. Hakim vs Bholanath. 40 DLR 413.
In transferring a case from one court to another the convenience of transfer which is to be taken into consideration by the court is the convenience of both the parties. Tambia vs Abdur. 46 DLR 521; Sadrul vs Asaduzzaman. 4 BLC 340; the burden of establishing sufficient grounds for transfer lies heavily upon the applicant. Nurul vs Janata Bank. 58 DLR 589.
Balance of convenience or expense in the matter of examination of witnesses of the parties has been recognised as a good ground for a transfer, but it is not convenience of one party and it must be that of both the parties. Shamsul vs Mozammal.27 DLR 43.
Ordinarily, the plaintiff as the arbiter litis has the right to choose the forum and the court would not disturb this right unless the defendant establishes a balance of convenience in his favour. Abdul vs Abdul. 4 BLD 306.
It is well settled that a case ought to be transferred when a party reasonably apprehends that he is not likely to have a fair trial before a particular court. Lalita vs S. AIR 1957 Pat 198.
The apprehension must have some objectivity. Elias vs Suraiya. 1 BLD 147: 1981 BCR 47.
The utterance of any party outside the Court cannot be a sufficient ground for transferring a suit. Anwar vs Md 47 DLR 530.
The ground for transfer was that the petitioner saw the opposite parties entering into the chamber of the Judge which was rejected as being hypersensitive or trivial or mini grievance Kashem vs Md 10 BLC 392.
Suspicion unless supported by particular and solid materials cannot be ground for a transfer of a case. Standard vs Farook.10 BLC 414.
Transfer of a suit for restitution of conjugal right was sought by the defendant wife from Perojpur to any other Court of competent jurisdiction within largest districts of Khulna, Jessore or Kushtia on the ground that the plaintiff is an associate of hooligans and whole objeet of filing the suit is to compel her to go to Perojpur and to kill her whereupon the High Court Division transferred the suit to Jhenidah (with the direction to dismiss the suit on the ground that the suit for restitution of conjugal right either by the husband or the wife is void and illegal under the Constitution of Bangladesh). Sharmin vs Mizan. 2 BLC 509.
There cannot be any assumption that a District Judge who is a party to a suit will receive automatic support from the trial Court when the petitioner has not given any hard evidence of the trial court's fear or favour of and for the District Judge. Shahida vs Abdul. 50 DLR(AD)147:18 BLD (AD) 217.
Though the schedule of plaint included some lands which have not fallen within the territorial jurisdiction of the court, the court does not suffer from lack of jurisdiction as the suit was transferred to it by a competent court. Zahir vs Yakub. 43 DLR 168.
Upon transfer of a small cause suit from a court which was invested with Small Cause court's power from a court which though lacked such power, yet the decree passed by the transferee court is a small cause court decree. Jamir vs Nuru. 19 DLR 30.
In case of transfer under section 24 the whole case is transferred including the ancillary proceedings. Dilip vs Abdul. 1983 BLD 49.
