2016 PLP 89 (YLRN)
REAYAT KHAN and others — Petitioners Versus NADAR KHAN and others — Respondents
| Citation | 2016 PLP 89 (YLRN) |
| Forum / Court | Peshawar (Bannu Bench) |
| Bench Members | Muhammad Daud Khan, J |
| Parties | REAYAT KHAN and others — Petitioners Versus NADAR KHAN and others — Respondents |
| Primary Law | "24. General Power of transfer and withdrawal.---(1) On the application of any of the parties 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, 5. It is pertinent to mention that this application was filed at principle seat of this court and his Lordship Hon'ble Mr. Justice Yahya Khan Afridi passed the order dated 18.07.2014 in the following words:, Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 2016 PLP 89 (YLRN)?
This judgment primarily cites: "24. General Power of transfer and withdrawal.---(1) On the application of any of the parties 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, 5. It is pertinent to mention that this application was filed at principle seat of this court and his Lordship Hon'ble Mr. Justice Yahya Khan Afridi passed the order dated 18.07.2014 in the following words:, Civil Procedure Code (V of 1908), On compliance the Worthy M.I.T submitted comments that are worth consideration and reproduced as under: as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2016 PLP 89 (YLRN)?
The case was heard and decided by the Peshawar (Bannu Bench) bench comprising: Muhammad Daud Khan, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2016 PLP 89 (YLRN) (REAYAT KHAN and others — Petitioners Versus NADAR KHAN and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Abdul Jabbar Khan and Anwarul Haq for Respondents.
- Date of hearing: 24th September, 2014.
- 3. On appearance, the learned counsel for respondents vehemently opposed the transfer application and from the very outset they submitted that the above said suits of which the transfer was sought have been decided by the learned trial court vide its judgment and decree dated 12.07.2014 and now the said lis is pending in appeal stage, therefore, the said Transfer Application has become infructuous.
Headnotes / Summary
S. 24
Transfer of case to other District of the Province
Applicants/ defendants filed application for transfer of suits on the ground that son of plaintiff was District Judge from where Trial Judge belonged
Applicants/defendants had not only challenged the impartiality of Trial Court but also questioned the impartiality of judiciary of the whole District on the ground that son of plaintiff was District Judge who had influenced the Judiciary of the District being his colleagues or lower rank officers
Applicants/defendants had not only involved the Trial Court but also involved the Appellate Court in the application and sought transfer of suits which were now at appellate stage, to the other District of the Province
High Court and District Court could transfer the suit to the court firstly subordinate to such court and secondly transferee court should be competent to try or dispose of the said suit
Applicants/defendants had sought transfer of the cases/appeals to the court of other District of the Province, none of which was within the administrative/ territorial jurisdiction of present Circuit Bench of High Court
Courts of other District to which applicants/defendants had sought transfer of the cases were neither subordinate to present Circuit Bench nor having the territorial jurisdiction over the same
Present application was not sustainable in the eye of law
Trial Court had performed legal obligations in the present case according to law
Nothing was on record to indicate that influence as alleged by the applicants/defendants was used
Allegation leveled against the District Judge by the applicants/defendants was baseless and without substance
Apprehension of applicants/defendants was general in nature and without cogent reason
Mere suspicion of bias was not sufficient for transfer of cases from one court to another
Applicants/defendants had failed to put forth any convincing reason which might justify the court for the transfer of the case from the court of District Judge to any other Judge
No valid ground had been put forth by the applicants/defendants for transfer of cases
Transfer application was dismissed in circumstances. [Paras. 4, 6, 8, 9, 10, 11, 12 and 13 of the judgment] Petitioners in person. JUDGMENT MUHAMMAD DAUD KHAN, J.
Petitioner through this Transfer Application under section 24, C.P.C. seek transfer of the two connected suits i.e. (1) Suit No. 23/1 of 2010, titled "Nadar Khan and others v. Reayat Khan and others". (2) Suit No.19/1 of 2010 titled "Nadar Khan and others v. Reayat Khan and others". From the court of Mrs. Tania Hashmi, Civil Judge-II, Karak to some other court preferably in District Nowshera, Mardan, Charsadda, Swabi or Peshawar.
2. The reason given in the application for transfer of the above cases was favouritism of learned trial court on plaintiffs' side, on the basis that one Mr. Abdur Rauf Khan, who is son of Nadir Khan, the plaintiff/respondent, serving as District and Sessions Judge, D.I. Khan from where the said learned Judge belongs. The allegations against the trial court are general in nature. The main criticism was the influence of said Mr. Abdur Rauf Khan being a District Judge over the trial court.
4. It appears from the record that the petitioner has not only challenged the impartiality of the trial court on one ground but also questioned the impartiality of whole District Judiciary on the ground that son of plaintiff Mr. Abdur Rauf Khan who is District and Sessions Judge, D.I. Khan has influenced the whole District Judiciary being his colleagues of lower rank officers have joined hands and proceeds the case after prior consent of the said Mr. Abdur Rauf Khan. "Serious allegations have been stated in the present application. Before passing any order, let the worthy Member Inspection Team shall file his comments on the assertion made in the petition, before the next date. Notice be also issued to the respondents for 01.09.2014. Office is directed to place this petition before his Lordship, the Chief Justice for the date fixed." "Subject:- COMMENTS IN Cr. M.T.A No.69-P/2014. Sir,
1. In the background query of the cases, it transpired that the dispute is between two brothers on a property.
2. The cases, for which transfer is sought, have been disposed of by the trial Court on 12.07.2014.
3. These two cases were the oldest cases on the diary of the Court and under the directives of National Judicial Policy, the Court was bound to dispose them on priority.
4. The learned Presiding Officer of the Court in question had in clear terms denied to have ever been approached or influenced in the case.
5. Submitted, please. Member Inspection Team 24.07.2014" The said case was fixed bore his Lordship the Hon'ble Chief Justice Mazhar Alam Khan Miankhel, whom vide order dated 01.09.2014, sent the case to this bench for disposal.
6. The prayer made by the petitioner is not limited to the transfer of the case from the court of Mrs. Tania Hashmi, Civil Judge-II, Karak to any other court of competent jurisdiction in the said District but thrown the net against whole District Judiciary of Karak and also involved the appellate court in the said Transfer Application and sought transfer of the suit, which is now in appeal stage at District Karak, to the other District of the province.
7. To resolve this controversy, I would like to discuss the instant application on factual as well as on legal aspects.
8. The mechanism for transfer of suit, appeal or proceedings of the case is given in section 24 of the C.P.C., which is reproduced as under: (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) re-transfer the same for trial or disposal to the Court from which it was withdrawn. (2) ... ... ... ... ... ... ... (3) ... ... ... ... ... ... ... (4) ... ... ... ... ... ... ... The bare reading of the above provision reveals that the High Court and District Court transfer the suit to the court, firstly subordinate to that court and secondly transferee court must be competent to try or dispose of the same.
9. The applicant in the instant application seeks transfer of the cases/appeals to the court of District Peshawar, Swabi, Mardan, Nowshehra, Charsadda, none of them comes within the administrative/territorial jurisdiction of this bench. The courts of District Peshawar, Swabi, Mardan, Nowshehra, Charsadda, to which the applicant sought transfer of the cases, are neither subordinate to this Bench nor having the territorial jurisdiction over the same, as such the application of the applicant is legally not sustainable.
10. No doubt Mr. Abdur Rauf Khan District and Sessions Judge, D.I. Khan is the son of Nadir Khan, plaintiff/respondent but it does not mean that he could influence the learned judges. Perusal of the case file and comments/report of M.I.T clearly indicate that Mst. Tania Hashmi has performed het legal obligation in the instant case according to law. Moreover, other presiding officers of District Judiciary have also performed their duties according to law and nothing indicate the influential act as alleged by the applicant.
11. The allegation leveled against Mr. Abdur Rauf Khan, by the petitioner is baseless and without substance. The apprehension of the petitioner is general in nature and without cogent reason. Mere suspicion of bias is not sufficient for transfer of cases from one Court to other.
12. The applicant has failed to put forth any convincing reason which may justify the Court for the transfer of the case from the court of District Judge Karak to any other judge. The reason that the applicant lacks the confidence on overall judiciary on the simple ground that Mr. Rauf Khan is serving as District and Sessions Judge, is not a valid ground.
13. In this view of the mater, the instant application being bereft of merit is dismissed. ZC/479/P Transfer Application dismissed.
Judgment & Decree
MUHAMMAD DAUD KHAN, J.
Petitioner through this Transfer Application under section 24, C.P.C. seek transfer of the two connected suits i.e. (1) Suit No. 23/1 of 2010, titled "Nadar Khan and others v. Reayat Khan and others". (2) Suit No.19/1 of 2010 titled "Nadar Khan and others v. Reayat Khan and others". From the court of Mrs. Tania Hashmi, Civil Judge-II, Karak to some other court preferably in District Nowshera, Mardan, Charsadda, Swabi or Peshawar.
2. The reason given in the application for transfer of the above cases was favouritism of learned trial court on plaintiffs' side, on the basis that one Mr. Abdur Rauf Khan, who is son of Nadir Khan, the plaintiff/respondent, serving as District and Sessions Judge, D.I. Khan from where the said learned Judge belongs. The allegations against the trial court are general in nature. The main criticism was the influence of said Mr. Abdur Rauf Khan being a District Judge over the trial court.
3. On appearance, the learned counsel for respondents vehemently opposed the transfer application and from the very outset they submitted that the above said suits of which the transfer was sought have been decided by the learned trial court vide its judgment and decree dated 12.07.2014 and now the said lis is pending in appeal stage, therefore, the said Transfer Application has become infructuous.
4. It appears from the record that the petitioner has not only challenged the impartiality of the trial court on one ground but also questioned the impartiality of whole District Judiciary on the ground that son of plaintiff Mr. Abdur Rauf Khan who is District and Sessions Judge, D.I. Khan has influenced the whole District Judiciary being his colleagues of lower rank officers have joined hands and proceeds the case after prior consent of the said Mr. Abdur Rauf Khan.
5. It is pertinent to mention that this application was filed at principle seat of this court and his Lordship Hon'ble Mr. Justice Yahya Khan Afridi passed the order dated 18.07.2014 in the following words:- "Serious allegations have been stated in the present application. Before passing any order, let the worthy Member Inspection Team shall file his comments on the assertion made in the petition, before the next date. Notice be also issued to the respondents for 01.09.2014. Office is directed to place this petition before his Lordship, the Chief Justice for the date fixed." On compliance the Worthy M.I.T submitted comments that are worth consideration and reproduced as under:- "Subject:- COMMENTS IN Cr. M.T.A No.69-P/2014. Sir,
1. In the background query of the cases, it transpired that the dispute is between two brothers on a property.
2. The cases, for which transfer is sought, have been disposed of by the trial Court on 12.07.2014.
3. These two cases were the oldest cases on the diary of the Court and under the directives of National Judicial Policy, the Court was bound to dispose them on priority.
4. The learned Presiding Officer of the Court in question had in clear terms denied to have ever been approached or influenced in the case.
5. Submitted, please. Member Inspection Team 24.07.2014" The said case was fixed bore his Lordship the Hon'ble Chief Justice Mazhar Alam Khan Miankhel, whom vide order dated 01.09.2014, sent the case to this bench for disposal.
6. The prayer made by the petitioner is not limited to the transfer of the case from the court of Mrs. Tania Hashmi, Civil Judge-II, Karak to any other court of competent jurisdiction in the said District but thrown the net against whole District Judiciary of Karak and also involved the appellate court in the said Transfer Application and sought transfer of the suit, which is now in appeal stage at District Karak, to the other District of the province.
7. To resolve this controversy, I would like to discuss the instant application on factual as well as on legal aspects.
8. The mechanism for transfer of suit, appeal or proceedings of the case is given in section 24 of the C.P.C., which is reproduced as under: "
24. General Power of transfer and withdrawal.
(1) On the application of any of the parties 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) re-transfer the same for trial or disposal to the Court from which it was withdrawn. (2) ... ... ... ... ... ... ... (3) ... ... ... ... ... ... ... (4) ... ... ... ... ... ... ... The bare reading of the above provision reveals that the High Court and District Court transfer the suit to the court, firstly subordinate to that court and secondly transferee court must be competent to try or dispose of the same.
9. The applicant in the instant application seeks transfer of the cases/appeals to the court of District Peshawar, Swabi, Mardan, Nowshehra, Charsadda, none of them comes within the administrative/territorial jurisdiction of this bench. The courts of District Peshawar, Swabi, Mardan, Nowshehra, Charsadda, to which the applicant sought transfer of the cases, are neither subordinate to this Bench nor having the territorial jurisdiction over the same, as such the application of the applicant is legally not sustainable.
10. No doubt Mr. Abdur Rauf Khan District and Sessions Judge, D.I. Khan is the son of Nadir Khan, plaintiff/respondent but it does not mean that he could influence the learned judges. Perusal of the case file and comments/report of M.I.T clearly indicate that Mst. Tania Hashmi has performed het legal obligation in the instant case according to law. Moreover, other presiding officers of District Judiciary have also performed their duties according to law and nothing indicate the influential act as alleged by the applicant.
11. The allegation leveled against Mr. Abdur Rauf Khan, by the petitioner is baseless and without substance. The apprehension of the petitioner is general in nature and without cogent reason. Mere suspicion of bias is not sufficient for transfer of cases from one Court to other.
12. The applicant has failed to put forth any convincing reason which may justify the Court for the transfer of the case from the court of District Judge Karak to any other judge. The reason that the applicant lacks the confidence on overall judiciary on the simple ground that Mr. Rauf Khan is serving as District and Sessions Judge, is not a valid ground.
13. In this view of the mater, the instant application being bereft of merit is dismissed. ZC/479/P Transfer Application dismissed.