1988 PLP 986 (CLC)

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑ ‑‑‑(. 7‑‑Constitution of Pakistan (1973), Art. 203‑‑Transfer of family suit‑‑Administrative and supervising jurisdiction of High Court when to be available for transfer of family suit‑‑Where provision for transfer of a suit was not available in a statute such defect, held, could lead to denial of justice and could be cured by resort to provisions of Art. 203 of the Constitution of Pakistan 1973‑‑High Court in exercise of that Constitutional jurisdiction ordered transfer of family suit from Court at H to Court at K . M. Rafiq Khanzada for Appellant. Nemo for Respondent. Date of hearing: 8th February, 1988. This petition has been filed under Article 203 of the Constitution of Islamic Republic of Pakistan seeking transfer of family Suit No. 108 of 1987 from Hyderabad to Karachi. The petitioner was married to the respondent No. 1 on 18‑7‑1986. As differences arose between them, it is alleged that she was turned out from the house without any belongings or ornaments. It has been alleged that due to the threats of dire consequences given by the respondent No. 1 to the petitioner, and as the respondent has behaved improperly and is man of loose character, the petitioner cannot live with him as her wife. She therefore, filed Suit No. 253 of 1987 for dissolution of marriage before the Family Judge No. VII, Karachi (West). Thereafter, the respondent No. 1 also filed Suit No. 108 of 1987 for restitution of conjugal rights before IInd Senior Civil Judge, Hyderabad. The petitioner inter alia alleged that in order to avoid conflicting decision on the same subject‑matter of controversy, the Hyderabad suit should be transferred to Karachi. Mr. Khanzada the learned counsel for the petitioner has contended that the respondent No. 1 has given threats and out of fear it is not possible for the petitioner and her witnesses to. go to Hyderabad. The learned counsel has also referred to S. Zahid Ali v. Mst. Mubarak Begum P L D 1976 Kar. 68 in which the exercise of power of the Court under Article 203 of the Constitution has been fully discussed and analysed. It is well‑established that under Article 203 the High Court has the supervision and control of the administration of justice and this provision is not intended to be exercised for the convenience of any party, or only at the behest of any one. After discussing several authorities, it was observed as follows: ‑‑ "What, therefore follows from the above is that the fundamental object of supervision is to keep the administration of justice pure, and for that purpose the High Court exercises power to correct the failure, faults, or dereliction of duty, laches, defects of jurisdiction, denial of justice, bias or disability of the Court, which instances are by no means exhaustive, but not by way of any relief and irrespective of whether it causes any benefit or harm to a party either suo motu or when the defect is brought to its notice. It is in this concept that the Full Bench approved Gaman and Safia's cases." In the present case without taking into consideration the convenience and inconvenience of the parties it is quite clear that suits filed before the Family Court cannot be transferred under section 24 of the Civil Procedure Code, nor there is any such provision the Family Courts Act. The absence of such provision in any law is likely to create difficulties in the administration of justice, because circumstances may arise where for proper adjudication and justice it', is necessary that a suit be transferred from one Court to another Where such provision is not available in a statute, in my view it is such a defect which may lead to denial of justice and in the present case has to be cured only by exercising administrative and supervisory control as provided under Article 203 of the Constitution. The transfer becomes somewhat necessary from this limited point of view as it is likely that both the Courts may give a conflicting decision which may entail serious complications leading to multiplicity of proceedings. The intention of promulgating the Family Courts Act was to expedite the disposal of family suits and if any such provision as described above R has not been incorporated, leading to difficulty in administration of justice, the Court would be empowered under Article 203 of the Constitution to make necessary orders to achieve this object. Considering from this point of view I allow the petition, order that Family Suit No. 108 of 1987 filed by the respondent No. 1 before the Senior Civil Judge IInd, Hyderabad be transferred to Karachi to be tried by the same Judge, who is trying Family Suit No. 253 of 1987. H . B . T . /N‑82/ K Suit transferred.