Order XLI of the Supreme Court Rules, 2013: Transfer Petitions
Applications under Article 139A(2) of the Constitution of India and Section 25 of the Code of Civil Procedure, 1908
Order XLI lays down the procedure for requesting the Supreme Court of India to transfer specified pending proceedings. It addresses the contents of a transfer petition, the supporting affidavit, preliminary scrutiny, service of notice, responses and final hearing.
Legal provisions governing transfer
Article 139A(2) of the Constitution
Article 139A(2) empowers the Supreme Court, when it considers a transfer expedient for the ends of justice, to transfer any case, appeal or other proceeding pending before one High Court to another High Court. This is distinct from Article 139A(1), which concerns withdrawal of certain cases involving common substantial questions of law.
Section 25 of the Code of Civil Procedure, 1908
Section 25 authorises the Supreme Court, on the application of a party and after notice and hearing as it considers appropriate, to transfer a suit, appeal or other proceeding from a High Court or other civil court in one State to a High Court or other civil court in another State if the transfer is expedient for the ends of justice. Under Section 25(2), the application is made by motion supported by an affidavit. The section also addresses how the transferee court proceeds, compensation for frivolous or vexatious applications, and applicable law after transfer.
Order XLI: Rules 1 to 5 explained
Rule 1 - Petition and affidavit
A petition under Article 139A(2) of the Constitution or Section 25 CPC must be in writing. It must clearly and concisely state relevant facts and particulars, identify the High Court or other civil court where the case is pending, set out the grounds for transfer, and be supported by an affidavit.
Rule 2 - Preliminary hearing and notice
The Supreme Court first considers whether a prima facie case for transfer exists. It may dismiss the petition if none is made out. Otherwise, it directs notice to the parties concerned to show cause against transfer, and a copy of the order is transmitted to the High Court concerned.
Rule 3 - Notice and affidavits
Notice must be served at least four weeks before the final hearing. Affidavits in opposition must reach the Registry at least one week before the hearing; any affidavit in reply must be filed at least two days before the hearing. Copies must be served on the opposing parties, with the required endorsement of service.
Rule 4 - Final hearing
After the preceding procedural steps, the petition is listed for final hearing before the Court.
Rule 5 - Application of other Orders
Unless Order XLI provides otherwise, provisions of the other Orders of the Supreme Court Rules, including Order LI, apply so far as applicable.
How to prepare a transfer petition
Identify the existing case and court, specify the proposed transferee court, explain the material facts and reasons why the transfer serves the ends of justice, and support the petition with an affidavit. Follow the current Registry requirements on filing, service, documents, court fees and any interlocutory relief sought. Transfer is discretionary, not automatic merely because an application has been filed.
Official legal resources
Consult the Supreme Court of India - Supreme Court Rules for the Rules and published amendments, and the Supreme Court of India official website for current filing guidance and court information. Verify the consolidated rules and applicable practice directions before filing.