1998 PLP 2586 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

This order will govern the disposal of Civil Miscellaneous Applications Nos. 259 of 1998, 537 of 1998 and 567 of 1998.

2. The first mentioned application is filed by Robert Axford and others against Attock:0i1 Company and others, with the following prayer:- "In view of the above and in the interest of justice, it is most respectfully prayed that this august Court may be pleased to order that Civil Suits Nos. 199 of 1992 and 35 of 1993 are to be decided in accordance with the order dated 16-5-1997 of this august Court by Mr. Chaudhry Asad Raza, the Judge designated by name by the Supreme Court." The second mentioned Application No.537 of 1998 is instituted by International Credit & Investment Co. (Overseas) Ltd. and others against Dr. Ghaith R. Pharaon and others. The prayer in this Civil Miscellaneous Application is as follows:-- "Wherefore it is most respectfully prayed that this Hon'ble Court may - be pleased to grant an extension in the time period granted to the Applicants for leading their evidence in direction suits, and may also be pleased to direct the Court below to hear and decide the direction suits and the matters arising out of the same as expeditiously as possible." In the third mentioned application, there is a prayer for transfer of the suits from the Court of Additional District Judge (ADJ) Mr. Ch. Asad Raza to the Lahore High Court for expeditious disposal by a Senior Judge of that Court.

3. To understand the controversies arising in the above Civil Miscellaneous Applications, it is necessary to refer to the following background of these cases. 4. 6 civil Suits, bearing Nos. 199, 210, 205 and 209 of 1992 and 35 and 550 of 1993, were instituted by the parties against each other before the Civil Judge, Rawalpindi. The abovementioned 6 civil suits became the subject-matter of Civil Appeals Nos. 174 to 179 of 1994 filed before this Court. These 6 appeals were disposed of by a consent order passed by this Court on 22-2-1995 which was as follows:- "These six appeals are allowed in the result of compromise reached between the parties as under: ,

1. Six suits which are the subject-matters of these appeals are transferred and are to be decided by the District Judge, Islamabad within time frame of six months from the date of appearance of the parties before him.

2. The question whether the suits should be consolidated or not shall be decided by the District Judge, Islamabad.

3. Learned counsel for the parties present in these appeals are directed to appear before the District Judge, Islamabad on 26th Febrtary, 1995. Mr. Raza Kazim states that Civil Petition 6 of 1995 pending in this Court against the order of the High Court confirming stay of the Suit No.517Lof 1993 which is pending in the Court of the Senior Civil Judge, Islamabad be fixed for hearing in the next week. Learned counsel for the other party has no objection. Therefore, it is directed that Civil Petition 6 of 1995 should be fixed for hearing on 28th February, 1995. " As a result of the above consent order, six civil suits mentioned above, which were pending before the Civil Judge, Rawalpindi, stood transferred to the Court of District Judge, Islamabad, on 9-3-1995. These suits were taken up by the Court of District Judge, Islamabad, on 12-3-1995, 14-3-1995, 16-3-1995. 19-3-1995, 22-3-1995, 2-4-1995 and 10-4-1995. On the last mentioned date, the District Judge, Islamabad, appears to have informed to the parties in open Court that lie would riot like to proceed with these cases as one of the parties in the suits was very closely known to him. As a result of this disclosure made by the learned District Judge, Islamabad, Civil Miscellaneous Applications 256 to 260 titled as Robert Axford and others v. Attock Oil Company and others and Civil Miscellaneous Application 261 of 1995 titled as Attock Oil Co. and others v. Dr. Gaith Rashad Pharaon and others were filed before this Court seeking review of the order dated 22-2-1995 passed by this Court in Civil Appeals Nos. 174 to 179 of 1994. When these Civil Miscellaneous Applications came up for hearing before this Court, a report was called from the District Judge, Islamabad, and notices were also issued to respondents in these Civil Miscellaneous Applications for 15-5-1995. On 15-5-1995 this Court after considering the comments filed by the District Judge, Islamabad, transferred. all the abovementioned 6 suits to the Court of Additional District Judge (ADJ) Rawalpindi, Mr. Asad Raza. The consent order dated 22-2-1995 was, accordingly, reviewed to the extent that in place of District Judge, Islamabad, Additional District Judge, Rawalpindi, Mr. Ch. Asad Raza, was substituted a consequence of this modification in the oi.ier dated 22-2-1995, the parties were directed to appear before the ADJ Rawalpindi, Mr. Ch. Asad Raza, on 24-5-1995 and CMAs stood disposed of accordingly. It appears that the above mentioned 6 suits could not be disposed of by tire Additional District Judge Mr. Ch. Asad Raza within ;he time fixed by this Court for disposal of the suits whereupon two separate Civil Miscellaneous Application No.781 of 1995 and 565 of 1996 were filed by the parties seeking further extension of time for disposal of these cases by Mr. Ch. Asad Raza, Additional District Judge, Rawalpindi. Both these applications were allowed by this Court on 20-11-1996 and time was extended for further 6 months from the date of the order for disposal of abovementioned 6 suits. The suits however, could not be disposed of within the extended time and therefore, 2 Civil Miscellaneous Applications No.395 of 1997 and 315 of 1997 were filed by Robert Axford and others and International Credit & Investment Co. (Overseas) Ltd. and others respectively, praying for further extension in the time for disposal of the suits. The abovementioned Civil Miscellaneous Applications came up for hearing on 16-5-1998. The prayer for extension of time for disposal of the suits by Mr. Ch. Asad Raza, Additional District Judge was vehemently opposed by Mr. Abdul Hafeez Pirzada, who was appearing for respondents, on the ground that the disposal of the suits has been delayed on account of delaying tactics by the petitioners (Robert Axford and others and International Credit & Investment Co. (Overseas) Ltd.). In spite of this opposition by Mr. Abdul Ilafeez Pirzada, the time was extended by this Court in these terms:-- "We do not propose to enter into the controversy as to which of party is responsible for the delay in the disposal of cases as this exercise in our view, is not likely to yield any positive result. Suffice it to say at this stage, that difficulties have arisen on account of reluctance of a foreign country to allow examination of a witness on Commission, who is presently undergoing imprisonment in that country, which has also contributed to the delay in disposal of suits by the trial Court. The learned counsel for the petitioner agrees that the foreign Government could not be compelled by the Courts in Pakistan, to allow examination of,Witness in their custody on Commission, if it holds a contrary view. The learned counsel for the parties also agree that the reluctance on the part of a foreign country to allow examination of the witnesses in their country on Commission should not stand in the way of disposal of the suit by the trial Court as directed by this Court. We are, therefore, of the view that as the responsibility of production of relevant evidence in a case is on the party concerned that party alone has to arrange production of such evidence/witness in the Court and in that connection it can only ask for such assistance from the Court which is permissible within the limits of law. Keeping in view the above considerations, we enquired from Mr. Raza Kazim, the learned counsel for the petitioner (defendant in the two suits, namely, Suit No. 199 of 1992 and 35 of 1993 pending before the trial Court), the number of witnesses he proposes to examine in these two suits and the time his client would require to produce all the relevant evidence/witnesses before the trial Court. Mr. Raza Kazim, the learned counsel for the petitioner, in reply made a categorical statement before us that in so far Suit No. 199 of 1992 is concerned, his client proposes to examine only Mr. Kazim, who is presently undergoing sentence of imprisonment in U.A.E. and in case his client is unable to get his evidence recorded for the reasons stated above, he would then examine Mr. Saleh Naqvi, who is presently undergoing sentence of imprisonment in U.S.A., in place of Mr. Kazim. The learned counsel further stated that in the other suit, namely. Suit No. 35 of 1993, besides examining Mr. Kazim or Mr. Saleh Naqvi as stated aforesaid, his client would examine one witness from M/s Campbell Security, Mr. Michael Mackey (defendant) and one of the assistant of Mr. Mackey in addition to Registrar Joint Stock Companies, Rawalpindi. The learned counsel (Mr. Raza Kazim) undertook to complete positively the production of entire evidence mentioned above before the trial Court in the two suits before 31-12-1997. We accept the above request of Mr. Raza Kazim, which is opposed by Mr. Pirzada, the learned counsel for the respondent, in the interest of justice subject to the condition that the defendants alone will be responsible to arrange examination of these witnesses either by way of Commission or by any other means permissible in law within the time allowed by us and that no further extension in time for production of evidence under any circumstances will be allowed. It also clarified that in case the petitioner failed to conclude his evidence before the trial Court by 31-12-1997 in the two suits, the same shall stand closed and the cases shall proceed further accordingly. The trial Court is allowed two months further time for close of evidence (upto 28-2-1998) for conclusion of the trial of the two suits. The remaining miscellaneous applications in the cases and the petition for leave to appeal are adjourned to 20-5-1998. Mr. Raza Kazim, during the course of arguments, stated that certain proceedings arising from these suits are pending in the High Court and on account of delay in disposal of these proceedings the disposal of suits was delayed before the trial Court. If it is so, the learned counsel may approach the Honourable Chief Justice of the High Court where the cases are ending and request for an early disposal of these proceedings in the light of the above order. The application stands disposed of accordingly."

5. At this stage, we may mention here that out of 6 suits which were originally transferred to the District Judge, Islamabad, for disposal and which were later transferred to Mr. Ch. Asad Raza, Additional District Judge Rawalpindi, Suits Nos.210, 205 and 29 of 1992 were withdrawn by the plaintiffs on 25-2-1996. The plaint in suit No. 550 of 1993 was rejected by the Court under Order VII, Rule 11, C.P.C. on 16-4-1996 against which an appeal was filed before the High Court which is stated to be pending. It is, therefore, quite clear that on 16-5-1997 when we extended time for disposal of the suits on the terms reproduced above, only Suits Nos.199 of 1992 and 35 of 1993 were pending before Mr. Ch. Asad Raza, Additional District Judge, Rawalpindi. It appears that the above-mentioned 2 suits could not be disposed by Mr. Ch. Asad Raza within the time extended by us vide our order dated 16-5-1997 and as a consequence thereof Civil Miscellaneous Application 537 of 1997 has been filed seeking further extension of time for disposal of these cases.

6. Another development in the meantime took place as Mr. Asad Raza, Additional District Judge, Rawalpindi, who was assigned these cases for disposal and who proceed with them from 19.26 onward, was transferred to Lahore. This had led to the filing of Civil Miscellaneous Application 259 of 1998 by the plaintiffs in Suit No. 199 of 1992 and 35 of 1993 with the prayer that these cases may be directed to proceed before Mr. Asad Raza either at Rawalpindi or Lahore where he is presently posted. The prayer for extension of time for disposal of Suit No. 199 of 1992 and 35 of 1993 by the Court of Additional District Judge.presided over by Mr. Asad Raza is not seriously opposed by Mr. A.H. Pirzada who is appearing in Civil Miscellaneous Application No.259 of 1998 filed before this Court with the prayer that the hearing of this case be continued before Mr. Asad Raza who is now posted at Lahore either at Rawalpindi or Lahore. Mr. Raza Kazim, the learned counsel for International Credit & Investment Co. (Overseas) Limited and others, however, while praying for extension of time for disposal of these cases has made two-fold prayers namely, that he may be allowed to complete his remaining evidence in Suit No. 199 of 1992 and 35 of 1993 and that the cases may not be ordered to be heard by Mr. Ch. Asad Raza who has since been transferred from Rawalpindi to Lahore ~as his client had already filed a transfer application for transferring these cases to some other Court while he was still posted at Rawalpindi. The transfer application has been registered as Civil Miscellaneous Application 567 of 1998 and we propose to dispose of this application also simultaneously as the facts relevant for disposal of abovementioned two C.M.As. (259 & 537/98) are also relevant to some extent for disposal of transfer application (C.M.A 567/98) filed by the clients of Mr. Raza Kazim.

7. The delay in disposal of abovementioned two suits has resulted on account of various proceedings which have arisen from orders passed from time to time by the Court against which number of petitions in the nature of Civil Revision Application., Civil Miscellaneous Application 1st Appeal, Writ Petitions, Companies Original Petitions etc. were instituted before the Lahore High Court which are either pending or have been disposed of and against those orders Civil Petitions for Leave to Appeal (CPLA) are now pending before this Court. Keeping in view the nature of litigation, points of law involved in the proceedings and the stakes of the parties in the pending litigation, we are not only inclined to grant, further extension of time for disposal of these cases but we are also inclined to make the order that these cases be heard and disposed of by Mr. Ch. Asad Raza, who was assigned these cases by name under order of this Court dated 15-5-1995, but before doing that it will be appropriate that we dispose of the application filed by the clients of Mr. Raza for transfer of these cases from the file Mr. Ch. Asad Raza to a senior Judge in the Lahore High Court. The main ground for seeking transfer of these cases from the file of Mr. Ch. Asad Raza to the High. Court by Mr. Raza Kazim is that Mr. Ch. Asad Razs has in the meantime acquired personal interest in the cases as one of his nephews was appointed in the Company run by Dr. Gaith Rashad Pharaon at a very high salary during pendency of these suits, and therefore, he is debarred from hearing these cases any further. It is also urged by Mr. Raza Kazim, the learned counsel for International Credit & Investment Co. (Overseas) Ltd. and others, that Mr. Ch. Asad Raza during the course of hearing of the suits had passed various orders which reflected a bias attitude towards the clients of Mr. Raza Kazim as well as his inability to understand the intricacies of the question of law involved m the above cases. After hearing Mr. Raza Kazim, the learned counsel for International Credit & Investment Co. (Overseas) Ltd. and others and Mr. Abdul Hafeez Prizada, the learned counsel appearing for respondents, we are of the view that although it appears from the record that a nephew of Mr. Ch. Asad Raza was employed in the Company in which the client of Mr. Abdul Hafe Prizada has some interest but the document filed by Mr. Raza Kazim show the said nephew of Mr. Ch. Asad voluntarily resigned from the employment of that Company on account of certain thefts which took place at his house at Karachi. Mr. Raza Kazim has also pointed out various observations made by the learned Judge in Chambers of the High Court on the order passed by Mr. Ch, Asad Raza in the pending suits but those observations too are not of such a nature which may create a doubt as to the neutrality and impartiality of Mr. Asa i Raza in deciding these cases. It is conceded by both the learned counsel that tie record in these cases in voluminous and seriousness and intricacies of questions of law arising in' these .cases can be judged from the admission of the learned counsel for the parties even miscellaneous applications filed in these cases were argued by them before the trial Court for days together. In this background and taking into consideration the nature of the litigation, we are of the view that it will be appropriate that the learned Judge, who has already proceeded with these cases for over three years, be allowed to conclude the proceedings in these cases. We may mention here that before appointing Mr. Asad Raza by name, as a Judge to hear and dispose of these cases, we consulted 8 the learned Chief Justice of Lahore High Court who recommended his name as an officer, who was not only competent but enjoyed good reputation. We are confident that notwithstanding the allegations which have been made against Mr. Asad Raza by the clients of Mr. Raza Kazim, he will live up to the recommendations of the Hon'ble Chief Justice of Lahore High Court and will be able to decide these cases strictly in accordance with the law, without being influenced by the remarks which have been urged before us in support of the transfer application. We are also confident that Mr. Asad Raza as a Presiding Officer in these cases, will maintain this posture and conduct in a manner which will inspire confidence of both the parties and would reflect his impartiality and neutraility in the conduct and disposal of these cases. As a Presiding Officer, Mr. Asad Raza is required to maintain a balanced attitude in dealing with the; grievances of parties with regard to the conduct of the proceedings. Subject to these observations, for the present, we decline to transfer these cases from the file of Mr. Asad Raza, who was assigned these cases in 1995. We have been told that as many as 14 proceedings arising from orders passed in the suits pending in the Court of Mr, Asad Raza are still pending before the High Court and some of the petitions for leave to appeal arising from the judgments/orders of the High Court are also pending before this Court and decisions in these pending petitions may affect disposal of the pending suits before Mr. Asad Raza. Keeping in view these considerations, we extend the time for disposal of the pending suits for sixmonths from the date of this order.

9. Mr. Ch. Asad Raza, Additional District Judge, who was hearing these cases at Rawalpindi, has since been transferred to Lahore. While he was hearing the suits assigned to him under the orders of this Court at Rawalpindi, some new cases were filed by the parties. Since the subsequently instituted suits also relate to the same subject-matter and were being heard by Mr. Asad Raza, the same shall continue to be heard by him in the interest of justice and early disposal of these cases. Mr. Abdul Hafeez Prizada, the learned counsel for the respondent in these cases has made a suggestion that Mr. Asad Raza be directed to hear the cases at Rawalpindi where he was posted earlier but this prayer was opposed by Mr. Raza Kazim. We also feel that it will be highly inconvenient for the learned Judge who is now posted at Lahore to travel on each date of hearing for these cases from Lahore to Rawalpindi. The learned counsel have further pointed out that the entire record of these cases was called by the High Court in connection with several proceedings which are pending before the High Court. We are of the view that all the pending cases relating to the parties which were being heard by Mr. Ch. Asad Raza shall be heard now at Lahore where the parties will appear before him. With regard to the record which is stated to be lying in the High Court, the parties are free to make appropriate application before the High Court at Lahore for transfer of same to the Court of Mr. Ch. Asad Raza, Additional District Judge where the suits are pending. The .applications stand disposed of accordingly. M.B.A./R-25/S Order accordingly.