1988 PLP 1932 (CLC)

‑‑‑Ss. 24,36 & O. XXXIX, R. 4‑‑Transfer of suit‑‑Trial Court on respondent's application vacating interim injunction earlier granted to applicant and on her failure to comply with the said order getting it executed through issuance of warrant of possession and applicant consequently turned out restoring possession of disputed house to respondents‑‑Applicant moving for transfer of case from Civil Judge stating that he acted un-usually in dispossessing in course of trial and that the unholy haste shown by him had shaken her faith in his impartiality‑‑Mere fact that such an order was pungent against the applicant should ‑not ordinarily afford a ground for transfer of case but common accepted norm namely 'justice should not only be done but it should appear being done' has to be kept in mind‑‑Applicant having been dispossessed of property, had some reason to feel disturbed of the way she was made to quit the premises and it would be, therefore, in the fitness of things if the case was transferred from the Civil Judge but there was no reason for its transference to the High Court‑‑Suit withdrawn from the file of the trial Judge and entrusted to another Civil Judge. Muhammad Zahid Abbasi for Petitioner. Riaz Kiani for Respondents. It is an application for transfer of a civil suit pending presently with Mr. Riaz Mahmud, Civil Judge 1st Class, Lahore. Lot of property left by the propositus Professor Muhammad Anwar Irshad has become bone of contention between the parties as his heirs. The applicant Mst. Haafi is his mother whereas the respondents are either his widows or progeny. The learned Civil Judge on the application of the applicant granted her interim injunction vide his order, dated 29‑7‑1987 which allegedly was ex parte against respondents Nos. 2 to 8 who were said to be in England at the relevant time. Later they moved an application under Order XXXIX, Rule 4, C.P.C. for getting it vacated and, of course, the same was allowed with a direction issued against the applicant to vacate the two rooms. On her failure to comply with the order it was got executed formally through issuance of a warrant of possession. Consequently, she was turned out and the possession was restored to the respondents.

2. The applicant preferred an appeal against the order by which the interim injunction was vacated, and the same is still said to be pending but simultaneously she moved for transfer of the case from the learned Civil Judge stating in her own way that he acted unusually‑‑in dispossessing her in the course of trial and that the ,unholy haste shown by him had shaken her faith in his impartiality. The application was opposed, and the learned District Judge dismissed it holding that there was nothing wrong in executing the interim order. Consequently she has moved the present application before this Court for getting the suit transferred to the original jurisdiction of the High Court.

3. The application has been contested by the respondents main taining that in executing the interim order the learned Civil Judge was perfectly within his powers under section 36 of the Civil Procedure Code .and that the same could not be made a ground for transference.

4. It is true that the interim order could be lawfully executed' under section 36, C . P. C . especially when it did give a relief to the respondents of getting the possession restored to them. Their assertion was that the applicant had entered the premises stealthily a few days before the suit and that she had not come with clean hands. Right or wrong the trial Judge had to see to this point for the purposes of deciding the application for interim injunction and if he came to the conclusion that this assertion was correct,‑‑ he was probably within his limits to order restoration of the possession even through execution process. Ordinarily the mere fact that such an order was pungent against the applicant should not afford a ground for transfer of the case elsewhere but the commonly accepted norm namely 'justice should not only be done but it should also appear being done', has to be kept in mind. Usually, execution of orders in the course of pendency is a rare phenomenon.' In a way denying possession to a party already possessing the property was something far‑reaching. She had some reason to feel disturbed of the way she was made to quit the premises. It will be, therefore, in the fitness of things if at least the case. is transferred from the learned Civil Judge, but there is no reason for its transference to the High Court. It should be treated like many other cases a usual suit for distribution of Tarka of a deceased. In order to dispel all apprehensions entertained by the petitioner who is none 'else than real mother of the deceased, the suit is withdrawn from the file of Ch. Riaz Mahmood, Civil Judge 1st Class, Lahore and is entrusted to Syed Masood‑ul‑Hassan Shah, Civil Judge 1st Class, Lahore. Parties, to appear before him on the 2nd of March, 1988, by which time the record shall‑ be sent to the transferee Court without fail. S. Q./H‑56/L Suit transferred.