1996 PLP 1427 (CLC)

The learned counsel for, the petitioner argued that the petitioner has genuine apprehension that he will not get justice from the Court of Additional District Judge, Arifwala. It is added that the learned District Judge failed to appreciate that the apprehension was fully justified and proved by the affidavits appended with the transfer application moved before him.

4. On the other hand, the learned counsel for respondent No. 1 argued that the petitioner has yet not been impleaded as a party to the appeal, therefore, he cannot maintain this transter application. It is argued that it is only a party to the proceeding, which can move for its transfer. It is added that the grounds are general in nature and do not sound to reason. It is added that personal relations of litigant with the Presiding Officer is no ground for transfer of the cause. It is maintained that the allegations are mere concoction and not correct. The grounds urged and argued are not sufficient to grant of application. In this behalf the learned counsel has referred to the judgments reported as Zafar Iqbal v. Manzoor Hussain (1994 CLC 886), Mian Abdul Qadoos v. Faqirullah Minhas and others (1994 MLD 1153) and Mir Pio Jan and others v. District Judge, Bannu and others (1990 CLC 1165). 5.. The learned counsel for the petitioner while summing up the arguments submitted that this Court is competent to transfer a matter suo motu. It is added that besides section 24 this Court can transfer the appeal in exercise of inherent powers under section 151, C.YC. It is added that when a stranger to the suit can maintain the appeal then why he cannot move transfer application. The learned counsel in this behalf has referred to the judgment reported as H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65). It is added that the word parties' in section 24, C.P.C. referred to all those litigating the suit, appeal or other proceedings, which are sought to be transferred. In this behalf the reliance is placed on the case of Bisandaval Sitaram, Firm of, Akola v. Bodulal‑Ladhuram and another (1917) 42 Indian Cases 746). ‑

6. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record. Therefore, if the preliminary objection of the learned counsel for respondent No. l is upheld then it would be a fit case for exercise of any of the above powers. I would first deal with the preliminary objection. The word 'party' has not been defined in the C.P.C. or in the General Clauses Act, therefore, we have to adopt its common meaning as given in the dictionary. The word 'party' has been assigned for the following meanings in the Black's Law Dictionary (Fifth Edition):‑‑ "A person concerned or .having or taking part in any affair, matter, transaction, or proceeding, considered individually. 'party' to an action is a person whose name is designated on record as plaintiff or defendant. M & A Elec. Power Coop. v. True, Mo. App., 480 S.W. 2d 310,

314. Term, in general, means one having right to control proceedings, to make defence, to adduce and cross‑examine witnesses, and to appeal from judgment." The applicant has raised an issue in 'the appeal. The same is to be decided and his interest is likely to be prejudiced, therefore, he is covered by the term "party" as used in section 24 of the C.P.C. The parties are not to be limited to the person named in the title of the suit or appeal but it would include the persons, who have made applications under Order I, Rule 10, C.P.C. or filed objection in execution. The rule of interpretation of statements is not the interpretation, which advances the remedy rather than which barred the remedy is to be preferred. The judgment in the case of Bisandayal (supra) relied by the learned counsel supports the above in this case it was held as under:‑‑ "The word 'parties' clearly refers to those litigating the suit, appeal, or other proceedings whereof the transfer is sought." This controversy is mere academic interest. Firstly, because this Court besides the above power could transfer a matter:‑‑ (i) suo motu under section 24, C.P.C.; (ii) under section 151, P.C. and (iii) under Article 203 of the Constitution of Islamic Republic of Pakistan. Secondly, the learned counsel for respondent No. l did not contest the power of this Court to transfer the matter suo motu but submitted that in face of the application suo motu powers should not be exercised.

7. Now coming to the merit. The learned District Judge failed to appreciate that in face of the allegations made in the application it was neither in I the interest of the parties nor in the interest of the learned Additional District Judge nor even of the system to let the proceedings to continue in the same Court. The basic rule underlying the whole judicial system is that justice should not only be done but it should seem to have been done.

8. The learned counsel for respondent No. l argued that in case this application is accepted then the appeal may not be sent to the District Judge, who has earlier impliedly refused to hear the same. It is added that it may also not send to the Additional District Judge, Pakpattan Sharif because he belonged to Sahiwal and may be he had also been working with the learned counsel for the petitioner. Therefore, there is no choice for this Court but to transfer the appeal out of the. District. Thereafter, I suggested the name of Mr. Fakhar Hayat, the learned Additional District Judge,, Okara but the learned counsel for respondent No. l again pointed out that this gentleman also belongs to Sahiwal and he also might have worked with the learned counsel for the petitioner, therefore, it is not safe to send the appeal to him.

9. The upshot of the above discussion is that this application is allowed with no order as to costs. The result is that the appeal titled "Mian Maudood Masood v. Haji Bakhtiar Said Muhammad" and pending in the Court of Mr. Zia‑ur‑Rehman Khan, Additional District Judge, ' Arifwala is withdrawn from that Court and is made over to the Court of Rana Abdul Ghaffar Khan. Additional District Judge, Sahiwal. The learned transferee Court is directed to, decide all the matters expeditiously. A.A./D‑1/L Case transferred