P L D 1978 Lahore 518 (PLP)

(2) A District Court shay either on the application of any party or of its own accord, by an order in writing, transfer any suit or proceeding under this Act from one Family Court to another Family Court in a district or to itself and dispose it of as a Family Court. (3) Any Court to which a suit, appeal or proceeding is transferred under the preceding subsections shall, notwithstanding anything contained in this Act, have the jurisdiction to dispose it of in manner as if it were instituted or filed before it ; Provided that on the transfer of a suit, it shall not be necessary to commence the proceedings before the succeeding Judge de novo unless the Judge, for reasons to be recorded in-siting directs otherwise. It is necessary hero for the purpose of comparison to reproduce section 24 of the Civil Procedure Code us well. It reads as under ;- "

24. General power of trawler anal withdrawal. - (1) On the application of any of the patties and after notice to the parties and after hearing such of them as desire to be heard, or of Its own motion without such notice, the High Court or the District Court may at any stage ; (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same, or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding have been transferred or withdrawn under subsection (i) the Court which thereafter trios suit may, subject to any special directions in the case of &in order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court. (4) The Court trying any suit transferred or withdrawn under this section from a Court of small causes shall, for the purposes of such suit, be deemed to be a Court of small causes."

5. The comparison of the two provisions would show that the Legislature, in its wisdom, while enacting section 25-A of the Family Courts Act, has intentionally omitted to use the word "pending" in clauses (a) and (D of the said section which otherwise is pari materia with section 24, C. P. C. It can be legitimately presumed that the language of the two provisions being generally similar, it is quite possible that when enacting section 25-A, the language of section 24, C. P. C. was kept in view. The Legislature can, in proper cause, be presumed to have known the latest position of the precedent law on the subject of a particular legislation. The question of lack of jurisdiction of a Court as a ground visa-vas the competency of the transferring Court, as already noted, has been the subject-matter of considerable case-law. If, despite what has bee-n stated above, the Legislature chose to' omit the use of the word" "pending" in enacting section 25-A of the Family Courts Act it must be intentional and with the purpose, namely, from widening the scope of transfer proceeding. It is legitimate further to presume that it was in view of the interpretation in several rulings of the language used in section 24, C. P. C. that the Legislature thought it fit not only to exclude the use of word "pending" but also to add subsection (3) a new provision in section 25-A. The clear purpose was to confer powers on the transferring and transferee Courts, in those cases as well whore the jurisdiction and competency of the Court trying the matter (from which it is sought to be transferred) is challenged in the transfer application. Moreover the Legislature must have kept in view the incalculable harm which could be caused to family sot-up, in case of conflicting judgments on same, issues by different Courts. It appears, a salutary remedial measure has been taken. Thus, in view of this distinguishing feature qua the language used in section 25-A of the Family Courts Act the cases under section 24 of the C. P. C. dealing with the question in issue, would not ire applicable. Accordingly I, with respect, would treat the ruling in the case of Mst. Razia Shafi distinguishable and not attracted.

6. It way be mentioned that the learned counsel for the respondent also cited S. Zahid v. Mst. Mubarak Bare (E L D 1976 Kar. 68) to contend that it is not a fit case for transfer. The provisions contained in section 25-A of the Family Courts Act were not before their Lordships nor the questions involved in this case were considered in the said case Moreover, even on merits, the question of transfer was not decided on the reported judgment which was delivered on a reference made by the learned Chief Justice to a Division Bench on the question of constitutional supervisory jurisdiction of the High Court to transfer cases. After eaerci5ing the reference, case was sent back to the learned Chief Justice for decision of the application on merits. As to what was the decision thereafter is not shown In the report. In every way, the said case is clearly distinguishable.

7. As I have decided to transfer the case on grounds other than those relating to the competency of the Lahore Court, I consider it unnecessary to go into the question of jurisdiction and competency. Otherwise too, in the circumstances of the case when parties have not yet adduced evidence, I would not like to make any contempt on the factual questions connected with the ground of jurisdiction and competency. The suit for restitution of conjugal rights pending in the Court of Mr. F. H. Khalid Judge Family Court. Lahore is transferred on the grounds mentioned in para. 3 above, to the Court of Family Judge, Lyallpur wherein the suit for dissolution of marriage filed by the petitioner is now pending. It is slab observed that the learned Family Judge, at Lyallpur may consider the question of consolidation of the two suits in accordance with law. With the above order and observation, this application in allowed but there shall be no order as to costs. S. A. H. Application allowed.