P L D 1990 Lahore 19 (PLP)

This order will dispose of T.A. No. 469‑C/89 and T.A. No. 470‑C/89 as these are inter parties.

2. I have heard the learned counsel for the parties and the principal actors, the petitioner Mian Muhammad Nawab and leis cousin Mian Muhammad Sharif, respondent No.2. The unfortunate facts are that Nlian Muliammad Nawab's son Ehteshamul Haq wits earlier married with a lady which marriage had ended in divorce. On 19‑4‑1980 he was married with Mst. Riffat Sharif daughter of Mian Mohammad Sharif. According to her as stated in her plaint, Ehteshamul Haq was a Computer Programmer working in Saudi Arabia where he was operated upon for blood Cancer in 1984 and it was then pointed out that he would live for not more than two years. But these facts were concealed. In July, 1987 Ehteshamul Haq was sent abroad for medical treatment on State expense. He died in London on 23rd November, 1987 and his body wits brought back and buried in Islamabad on 25th November, 1987. It was proposed that Mst. Riffat Sharif the widow be married with the brother of her deceased husband. That having not come about an agreement and affidavit were got executed from the widow about her 1/4th share in the properties as an heir of her deceased husband. Settlement having not been effected finally, the widow filed a suit for cancellation of the agreement and affidavit and partition of the immovable properties, before the learned Senior Civil Judge, Islamabad on 15‑9‑1988. Before the same Court she also filed a suit for her 1/4th share in the movable assets of her deceased husband. She had also filed suits one for the recovery of Rs. 6,000 its dower amount and the other for the recovery of articles of dowry and gift worth Rs. 73,460 before the same Court. The latter two suits were withdrawn on the ground that there were some technical defects for which fresh suits were required. The Court dismissed the suits as withdrawn with permission to file fresh suits on payment of Rs. 100 as costs, vide order dated 2‑1‑1989.

3. Thereafter, the widow filed (a) a suit for the recovery of dowry of Rs.34,898, (b) her father filed a suit for recovery of Rs. 25,000 as damages for having been led to give his daughter in marriage to the deceased Ehteshamul Haq when the latter was suffering from blood cancer and (c) suit by the widow for recovery of dower amount of Rs. 6,000 and (d) a suit for the recovery of an amount of Rs. 500,00(1 as damages on account of having been misled in the wedlock. All these suits were filed before the learned Senior .Civil Judge, Rahimyar Khan.

4. Mian Muhammad Nawab father of Ehteshamul Haq the deceased husband of Mst. Riffat Sharif, has filed the afore titled Transfer Applications for transfer of the four suits mentioned in the last paragraph from Rahimyar Khan to Islamabad under Section 24 read with Section 23 of the C.P.C. Replies to the applications have been filed by the widow and her father praying for the dismissal of the Applications and further that the suits by the widow pending before the Senior Civil Judge, Islamabad be transferred to any Court of competent jurisdiction at Rahimyar Khan.

5. As stated earlier I have hard the learned counsel for the parties and the responsible persons Mi in Muhammad Nawab the petitioner and his cousin Mian Muhammad Sharif, the respondent No.2 at great length to see if the parties could sort out the consequences of the unfortunate tragedy but to no avail. It is clear that it is in the interest of the parties and justice that all suits are tried together and at one place. The question is at which place whether at Islamabad or Rahimyar Khan? The widow had filed four suits, at Islamabad; two of which are still pending there. She has filed three and her father one suit at Rahimyar Khan. The widow is residing with her parents at Rahimyar Khan. The properties in dispute are located in Islamabad.

6. Technically the Transfer applications of Mian Muhammad Nawab filed under Section 24 read with Section 23 C.P.C. for transfer of the cases pending before the subordinate Court in Rahimyar Khan to a similar Court in Islamabad, are not maintainable as after the establishment of the Benches of the Lahore High Court at Bahawalpur and Rawalpindi the applications seeking transfer of proceedings from a subordinate Court in an area assigned to a Bench to another subordinate Court in the area assigned to another Bench do not lie under the C.P.C. but under the Lahore High Court (Establishment of Benches) Rules, 1981. Nonetheless the invocation of not the relevant provision but an old provision need not necessarily lead to refusal of relief if otherwise justice would so demand. Having heard the learned counsel and the principal parties proceed to determine as to where all the suits arising out of the unfortunate circumstances should be tried so that inheritance and rights of a young widow without issue are determined without adding to her agony. In view of the facts that she herself had filed suits at Islamabad two of which are still pending there and that the properties are located there, it appeared that the three suits filed by her and one by her father at Rahimyar Khan should be transferred to Islamabad. But it is evident that she living with her parents in Rahimyar Khan will not be in a position to pursue her rights and remedies effectively if she were to go from Rahimyar Khan to Islamabad for each date of hearing; of the suit. Her misery of having become widow at a young age within a year and half of marriage will he accentuated and the memories will hunt her over the long journies to and fro from Rahimyar Khan to Islamabad and back. It is true that she has appointed her father as her attorney to pursue the cases but his going and coming in old age would not soften the sufferings during the trial of the suits. These are not merely sentimental reasons but have practical consequences. There is every likelihood of losing hope and giving up the struggle to pursue the rights and inheritance effectively and diligently. On the other hand is the father‑in‑law. He too is old, no doubt. But he is possessed of the properties in dispute. Balancing the parties ‑ a young widow living with parents in Rahimyar Khan and an old father‑in‑law possessed of properties living in Islamabad, it is clear that the widow is likely to lose heart and her rights if she were to come to Islamabad whereas the father‑in law is not likely to lose much if he were to come to Rahimyar Khan. May be in this event there is more chance of understanding and settlement and the widow gets her rights. In all the circumstances, I believe, the ends of justice will be better served if all the cases are heard at Rahimyar Khan. Consequently, the Transfer Applications of Mian Muhammad Nawab are dismissed but, it is directed that the suits filed by the widow Mst. Rifat Sharif pending before the learned Senior Civil Judge, Islamabad are transferred to the Court of the learned District Judge, Rahimyar Khan for entrustment of the' same to a competent Court directing hearing and disposal of all the cases inter parties as expeditiously as possible but not later than a year. Observations made in this order are obviously confined to these proceedings. The suits shall be decided on the evidence recorded therein. Nothing said in this order shall have any relevance or impact in the decision of the suits. The applications are thus disposed of. In the circumstances, the parties are left to bear their own costs. AA./M‑1601/L Order accordingly