10. Of application for withdrawal and transfer of action

10. Any of the parties to an action which is pending in any original court may, before trial, and after notice in writing to the other parties of his intention so to do, apply to the Court of Appeal by motion, which shall be supported by affidavit setting out the grounds on which it is based, for the withdrawal of such action from the court in which it is pending and for the transfer of it for trial to any other court competent to try the same in respect of its nature and the amount or value of its subject matter. And the Court of Appeal may, on any such application after hearing such of the parties as desire to be heard, and on being satisfied that such withdrawal and transfer are desirable for any of the following reasons:-

(a) that a fair and impartial trial cannot be had in any particular court or place; or

(b) that some question of law of unusual difficulty is likely to arise; or

(c) that it is expedient on any other ground,

Withdraw any such action pending in any such court, and transfer it for trial to any other such court as aforesaid, upon any terms that the Court of Appeal shall think fit. When the action might have been instituted in any one of several courts, the balance of convenience only shall be deemed sufficient cause for such withdrawal and transfer to one of the alternative courts.

In no case in which any action is so transferred as aforesaid from one court to another shall any stamp fee be leviable in the court to which the action is transferred on any pleading or exhibit on which the proper stamp fee has been paid in the court from which the action is so transferred.

An application for the transfer of an action from one District Court to another District Court should in terms of section 10 of the Civil Procedure Code be decided upon “the balance of convenience of parties,”

Somawathie Vs. Danny (76 N.L.R. 571) 

The petitioner purported to make this application under section 46 of the Judicature Act, which came into force only after the application was made.

Hence by consent of parties the Court heard the application as one made under section 10 of the Civil Procedure Code.

The petitioner supported her application for a transfer on certain grounds based on the conduct of the respondent in preventing other members of the Bar from appearing on her behalf and from being compelled thereby to retain counsel from Colombo. She also alleged that the respondent had intimidated her witnesses and that she had also to suffer tremendous inconvenience in having to travel from Dehiwela to Badulla in this case. The Petitioner’s allegations were denied in the affidavits filed on behalf of the respondent.

Held;

A party who seeks the transfer of a pending action in court must adduce sufficient grounds to satisfy the Court of Appeal that it is expedient to make order for it s transfer and in the context the word expedient would mean fit or proper.

A transfer would not be ordered on light grounds and on a consideration of all the material placed before court in the present application, the petitioner had failed to adduce sufficient grounds for a transfer of this action.

Sivasubramaniam Vs. Sivasubramaniam (1980 (2) S.L.R.58) 

The transfer applications in terms of section 10 of the Civil Procedure Code should be decided on a balance of convenience.

Per Anil Goonaratne, J.

Decision to transfer is not based on convenience but it is for the reason that it would be expedient to transfer in the best interest of justice.

I wish to add that the Court decides to transfer cases not in flimsy of light grounds. Expedient to do so would also mean fit or proper. A common question of fact and law and to avoid a multiplicity in trials as well as conflicting documents would be the reason to transfer all the applications to one original Court.

S.V. Obeysekera Vs. J.P. Obeysekera (2010 (2) S.L.R 414)