2016 PLP 1 (YLRN)

ABDUL RASOOL MEMON, J.

The applicants who are Judgment Debtor in Rent Execution Application No.04/2014 (Old Rent Execution Application No.02/2013) has prayed for transfer of execution application from the file of learned IInd Senior Civil Judge/Rent Controller, Shikarpur, to the Court of Ist Senior Civil Judge/Rent Controller, Shikarpur on the grounds that the learned trial Judge is hasty in trying the application but slack to proceed the civil suit wherein titled documents of the decree holder are yet to be adjudicated; that vide order dated 20.3.2015, the application under Order XXI, Rules 26, 29, C.P.C. filed by the opponents has also been passed being infructuous on the ground that intra court appeal was decided but no matter was pending before the intra court appeal; that the opposite party openly declared that they have won over the Presiding Officer.

2. Precise facts of the instant case are that the respondents had filed a rent application No.01/2009 regarding ejectment of the above named applicants from the premises bearing C.S.No.12.558 situated in Jugul Piayari Than Haveli inside Lakhi Gate Shikarpur on the ground of personal bona fide need and default. After trial rent application was dismissed vide order dated 13.11.2009 by the learned Ist Senior Civil Judge and Rent Controller Shikarpur and such order was assailed before the District Judge, Shikarpur which was entrusted to the 2nd District Judge Shikarpur who also dismissed same vide its order dated 18.2.2010.

3. The respondents being aggrieved challenged such both orders before this Court through Constitutional Petition No.S-1094 2010, whereby this Court after hearing the counsel for the parties set aside both orders while dismissed the Constitutional Petition for the prayer for personal bona fide need while allowed the same for the prayer of default vide its order dated 14.3.2013. Thereafter the applicants preferred a view petition as well as challenged such orders dated 14.3.2013 before the Honourable Supreme Court of Pakistan but could not succeed.

4. Learned counsel for the applicants has reiterated the same grounds which he has taken in his transfer application and states that the applicants have lost the faith due to the conduct of the Presiding Officer and they apprehend that they will not get fair decision on their application, therefore, he requests for transfer of the case.

5. Learned counsel for the respondents has contended that prior to this twice transfer applications moved before the District Judge were dismissed and now before this Court the same grounds have been agitated; that there is no haste on the part of the Presiding Officer but he has to comply with order of this Court dated 14.3.2013 passed in C.P. No.1094/2010 whereby the decree holder is ordered to be put in possession within three months and said period of three months has been lapsed long ago; that mere apprehension on the ground that the applicant was given short date by the trial Court could hardly be a ground for transfer of the case. Moreover the fact of pendency of intra court appeal as quoted is not observation of the trial Judge which may prejudice the applicant but it was contention of the counsel for the respondents, therefore, on this ground the matter cannot be transferred. In support of his contention he has relied upon the cases of Hakim Ali and others v. Muhammad Ashraf 1994 CLC 1655, Zafar Iqbal v. Manzoor Hussain 1994 CLC 886, Ch. Nusrat Ullah v. Athar Jamil 1982 SCMR 300 and Barkat Masih v. Manzoor Ahmed (Deceased) through L.Rs. NLR 2004 Civil 702.6. In order to ascertain objection of bias against the Presiding Officer, it is necessary that some act or expression of Presiding Officer should be available or visible on record for taking into consideration. For sustaining objection of bias the learned counsel submits that in diary dated 20.3.2015 it has been wrongly observed by the Presiding Officer that intra court appeal was pending to ascertain the genuineness of this objection. I hereby reproduce the diary dated 20.3.2015, copy whereof is placed on record which reads as under:-- "Rent application is called. Counsel of applicant is present. Opponent No.1(a) is present along with his counsel. The counsel for opponent raised ,no objection on application under Order XXII, Rule 3, C.P.C. which' is allowed with direction to file amended face sheet. The formality of joining the legal of opponent No.4 has completed as very day the counsel for applicant filed amended face sheet along with Vakalatnama on behalf of legal heirs of applicant No.4 and the copy of amended face sheet was received by the other side. As the matter was fixed for filing objection on rent application and in the meantime application under Order XXII, Rule 3, C.P.C. has come on record for which the order of main rent execution application had to adjourn. It is observed that till the date no objection has filed by applicant counsel on application under Order XXI, Rr. 26, 29, C.P.C. then learned counsel has pointed out that application as stated above was filed to stay the proceeding as the intra-court appeal was pending has been decided and the said application become infructuous. (underlining is provided for emphasis),

7. Perusal of the aforesaid diary shows that it is not the observation of the Presiding Officer but it was contention of the learned counsel for the respondents, therefore, mere suspicion or artificial and baseless apprehension would not be a ground to seek transfer of the case from one Court to other. Moreover passing of wrong order was not a ground for transfer of the case from one Court to other.

8. Reverting to the contention of the learned counsel in respect of utterance of opposite party that they have won over the Presiding Officer out the Court can in no manner be termed sufficient ground for transfer of the case from one Court to other as the Presiding Officer obviously would not be responsible for the irresponsible utterance of litigants before them.

9. The allegations of haste on the part of Presiding Officer also has no force for the reasons that trial Court was directed to put respondents in possession of demised premises within three months by this Court vide order dated 14.3.2013 and the said order has attained finality before the Hon'ble Supreme Court of Pakistan in C.P.No.99-K of 2015, therefore, compliance of the said order by the Presiding Officer was mandatory, therefore, Presiding Officer definitely has to fix matter on shortest possible dates as such is cannot be said that he was not conducting impartially, thus this objection also merits no consideration.

10. In view of above circumstances, I do not find merit in the transfer application which is dismissed. RR/J-3/Sindh Application dismissed.