2007 PLP 2185 (YLR)

This appeal assailed the judgment/decree dated 30-3-2001 passed by the learned Additional District Judge, Sargodha whereby suit for declaration with permanent injunction as consequential relief, filed by the respondent was decreed by requisitioning the file from the trial Court.

2. Precisely, relevant facts are that appellants auctioned the lease for collection of Toll Tax of Chinab Bridge at Talibwala, Sargodha for a period of one year with effect from 1-4-2000 to 31-3-2001. The respondent participated in the auction and remained the highest bidder with a bid of Rs.2,55,000 + 5% income' tax. Parties entered into an agreement on 29-3-2000. During the continuance .of lease period, respondent did not pay the instalments to the appellants and instead he filed a suit before the learned Senior Civil Judge Sargodha with the averments that he is entitled to continue with the collection of Toll Tax till 31-3-2001 and appellants have no right, title or interest to stop him from collection of the Toll Tax or to cancel the lease and he accordingly prayed that appellants may be restrained from complained activity. Respondent also moved an application for grant of temporary injunction under Order XXXIX, rules 1 and 2, C.P.C. for issuance of ad interim injunction restricting the appellants from undertaking the complained activity, pending suit.

3. The trial Court on filing of suit on 2-5-2000 issued a status quo order in respect of disputed recovery of the Toll Tax till the next date of hearing. The matter kept on adjourning and on 24-6-2000 the learned Senior Civil Judge directed the respondent to deposit the due instalment in the Court forthwith. The status quo order was also made subject to deposit of the outstanding instalment. Respondent did not deposit the instalment due and the learned Senior Civil Judge on 26-6-2000 declined to extend the injunctive order and fixed the stay application for arguments on 30-6-2000.

4. Respondent felt aggrieved of vacation of injunctive order dated 26-6-2000 and consequently filed an appeal before the learned Additional District Judge, who on 11-11-2000 requisitioned the file of the trial Court and by taking it on his own cause list, directed registration of the suit accordingly. The learned Additional District Judge, by taking cognizance of the suit opted to try it by himself along with the appeal filed by the respondent. Referring to some settlement dated 7-10-2000 inter parties, a committee consisted of one representative of each party and an Umpire by the Court, was constituted. The committee consisted of Mr. Muhammad Nasim Arif Deputy Director (Maintenance) N.H.A. Lahore and Mian Muhammad Rizwan representative of the respondent whereas Ch. Abdullah Yousaf Warraich, Special Prosecutor to the Special Court for Anti-Terrorism, Sargodha, was nominated as Umpire. The Committee so constituted was required to submit its report, which was filed on 9-3-2001. The learned Additional District Judge, after inviting objections to the report submitted by the committee, made the same rule of the Court vide his judgment/decree-dated 30-3-2001. Appellants being aggrieved of the judgment/decree dated 30-3-2001, filed instant appeal and respondent avoided service of notice issued by this Court whereupon he was served by affixing in terms of Order V, rule 17, C.P.C. and consequently, was proceeded against the ex parte order on 4-5-2006. The appeal was being fixed for ex parte hearing but could not be decided on number of dates, for one reason or the other. Respondent in the meanwhile has not appeared to contest this appeal.

5. We have heard the learned counsel for the appellants and have examined the record of the trial Court, as well as, that of the learned Additional District Judge. Undeniably, the suit was filed before the learned Senior Civil Judge Sargodha and the same was on his cause list till 14-11-2000. The learned Senior Civil Judge had required the respondent to deposit the instalment due vide his order dated 24-6-2000 which remained un accomplished, leading to the order dated 24-6-2000 whereby the interim injunction was not extended. Respondent filed an appeal under the Order XLIII, rule 1(r), C.P.C. before the learned Additional District Judge, who transferred the suit as well to his file and proceeded to decide the suit on the basis of some settlement between the parties which is not available on the record. Question which hinges for determination is as to whether the learned Additional District Judge himself could transfer the suit from the Court of the learned Senior Civil Judge, to his own, file. To our recollection there is only one provision regarding transfer of cases in the Civil Procedure Code 1908 and that is section

24. The jurisdiction to transfer the cases under section 24, C.P.C. vests with this Court or the learned District Judges and not with the learned Additional District Judges, who could decide the appeal but could not transfer the suit under these provisions of law. Similar question was earlier resolved by this Court in the case of Begum Akhtar Akhlaque Hussain and another v. Saghir Ahmad and 12 others (1980 CLC 1892). Additional District Judges for the purposes of transfer of case, have been made subordinate to the District Judges as per provisions of section 24(3), C.P.C. and are required to solicit transfer order from the District Judge or the High Court.

6. There is nothing on the file to indicate as to why the learned Additional District Judge, requisitioned/transferred the file of the suit for its decision along with the appeal against the order refusing to extend ad interim injunctive order. The Court of appeal could have decided the appeal by giving direction to the trial Court to decide the suit on the basis of the settlement inter parties relied by it. This course was not adopted which made the entire exercise by the Court of appeal, fishy. Above all the Court of appeal had no jurisdiction to constitute any committee even under the relied settlement because this exercise, if at all, was to be undertaken by the learned Civil Judge, cognizant of suit. The learned Presiding Officer of the appellate Court did not bother himself to examine the contents/varies of the report of the committee and acted in a mechanical manner to make the same rule of the Court, being oblivious of the fact that the respondent had not complied with the direction of the learned Senior Civil Judge for deposit of the instalments already due. A noval procedure of prizing a defaulting contractor was adopted by the learned Additional District Judge, which cannot be contributed on the basis of any canon known for administration of justice. Since the learned Additional District Judge, did not examine his own jurisdiction to undertake the above-referred exercise, we are of the considered view that the result returned by him, is not just/maintainable and deserves to be reversed. Scan of impugned judgment/decree and record revealed that controversy was not correctly put to rest.

7. For the reasons noted above, instant appeal is accepted and impugned judgment/decree dated 30-3-2001 is set aside and the case is remanded to Appellate Court for fresh decision of the case in accordance with law, in light of the observations made above. Parties are directed to appear before the learned District Judge, Sargodha, on 16-5-2007 for decision by himself or by onward entrustment of the case to any other Additional District Judge. There will be no order as to costs. F.B./N-43/L Case remanded.