P L D 2009 Karachi 183 (PLP)

SAJJAD ALI SHAH, J.

Through this petition, the petitioner has called in question order dated 1st April, 2008 whereby the District Judge Karachi South has transferred Family Suit No.508 of 2007, filed by respondent No.1 against the petitioner, and G&W Case No.263/2007, filed by the petitioner against respondent No.1, to the Court of IIIrd Civil Judge & Judicial Magistrate Karachi South. Learned counsel for the petitioner has contended that during the pendency of G&W Case bearing No.263/2007 before VIIIth Civil Judge and Judicial Magistrate Karachi South various orders for handing over the custody of the minors to the petitioner on special occasions were passed but were never complied with. Likewise, on 19th March, 2008 an order was passed whereby respondent No.1 was directed to hand over the custody of the minors to the petitioner for three hours on 23rd March, 2008 for celebration of their birthday. It is contended that respondent No.1 again did not comply with the order leading to filing of application under section 100, Cr. P. C., and section 45 of the Guardians and Wards Act. The respondent No.1, thereafter, instead of contesting the matter on merits moved transfer application before the District Judge levelling various allegations against VIIIth Civil Judge and Judicial Magistrate Karachi South. The District Judge, despite full knowledge that in the circumstances he had no judicial power to transfer a family case from one court to another entertained the application and transferred the case while exercising administrative powers. Per learned counsel there was no occasion for the District Judge to administratively transfer the said case as neither the Court of VIII Civil Judge & Judicial Magistrate was vacant nor the presiding officer was on leave for a period of more than 30 days. Learned counsel, by referring to the provisions of section 25-A of the Family Courts Act, 1964, hereinafter referred to as the said Act, has contended that exclusive jurisdiction is conferred upon this Court to transfer a family case from one court to another. The District Judge, in the circumstances, could not have transferred the said case on administrative ground and therefore the order is, liable to be set aside. On the other hand, learned counsel, appearing for the respondents Nos.1 & 2, initially tried to contend that since the impugned order was passed on the administrative side, therefore, the petitioner has no locus standi to challenge it as he could not be termed as an aggrieved person, therefore the instant petition is not maintainable. However, the learned counsel frankly conceded that notwithstanding as to whether the petitioner is an aggrieved person or not, this Court, under its supervisory jurisdiction can look into the legality of the order impugned. Mr. Kazi further concerned that though under sub-clause 2-A of section 25-A of the said Act. The District Judge has the power to transfer a case of like nature or proceedings from one Family Court to another only when a Family Court remains Vacant or the Presiding Officers remains on leave or absent for any reasons, except due to vacations, fore more than 30 days and since none of the grounds were attracted in the instant cases, therefore, the District Judge, on the administrative side, had no power to transfer this case to any other Family Judge. I have heard the learned counsel for the respective parties and perused the record. A perusal of section 25-A of the `said Act' reveals that it is the High Court which has the power to transfer any case or proceedings under the `said Act' from one Family Court to another Family Court in the same District or from one Family Court of one District to family Court of another District. The law does not empower the District Judge to exercise such powers. It appears that the District Judge in order to circumvent the provisions of section 25-A of the `said Act' resorted to the administrative powers for transferring the case from one Family Court to another. It is an admitted position that in the instant case, a grievance petition in the shape of Transfer Application was moved by the respondent No.1 before the District Judge levelling various allegations against the Family Court seized with the matters. In the circumstances, two courses were open to the District Judge (i) to have returned the application for want of jurisdiction; (ii) after calling the comments from the concerned Family Court should have referred the matter to this Court. However, the District Judge instead of choosing one of the aforesaid courses by sheer misuse of administrative powers transferred the cases to another Family Court. In my opinion, use of administrative power in the cases of like nature by circumventing specific provision of law shakes the confidence of the litigant upon the Court and fair administration of justice beside gives an impression of impartiality, therefore such practice should be avoided. In the circumstances and for the reasons stated above order dated 1st April, 2008, is set aside. However, since both the parties are levelling allegations against Family Courts, therefore as suggested by the learned counsel for the respective parties, both the cases viz. Family Suit No.508/2007 and G&W Case No.263 of 2007, presently pending before the Court of IIIrd Civil Judge & Judicial Magistrate Karachi South, are withdrawn from his file and transferred to the Court of IVth Civil Judge & Judicial Magistrate Karachi South. Both the counsel undertake to appear before IVth Civil Judge & Judicial Magistrate Karachi South on 8th November, 2008. The Civil Judge is directed to decide both the cases within three months and report compliance to this Court through MIT. With the above observations, the petition along with pending applications is disposed of. S.A.K./S-105/K Suit transferred.