1982 PLP 920 (CLC)

This petition seeks the transfer of a case titled `Allah Ditta v. Mst. Bilqis Bibi" pending before the Guardian Judge, Sheikhupura for custody of a, minor male child of the parties to the Court of the Guardian Judge, Gujrat before whom a case for the same relief filed by the petitioner against the respondent is pending.

2. The facts necessary for the purposes of this petition, briefly stated, are that the petitioner and respondent having fallen out as wife and husband some 8 years ago resulted in the petitioner leaving the house of the respondent and residing at Gujrat. She has filed three suits at Gujrat against the respondent, one for maintenance of child, second for dissolution of marriage which are pending before the learned Judge, Family Court, Gujrat, and the third for custody of the minor child which is pending before the Guardian Judge, Gujrat. The respondent has filed a suit for custody of the child which is pending before the Senior Civil Judge/Guardian Judge, Sheikhupura. It is the admitted position that the suit filed by the respondent is subsequent in time to the suit filed by the petitioner.

3. The learned counsel for the petitioner contended firstly, that the suit of the petitioner for claiming custody of the minor child filed at Gujrat being earlier in time the subsequent suit should be transferred to the Court where the earlier suit is pending; Secondly, that the petitioner is a poor lady who has no male family member to travel with her to Sheikhupura from Gujrat to defend the suit there; Thirdly, that the child, has, been living all alongwith the petitioner for the last about 8 years; and Lastly, that since the custody of the child is involved, he might have to appear in the Court and in this manner his education and health will suffer by travelling in order to appear at Sheikhupura. .

4. The learned counsel for the respondent half‑heartedly opposing the transfer only submitted that both the cases for the custody of the minor child may be transferred to District Gujranwala as the said District is equl distant from the places where the parties have respectively filed their suits.

5. Having given consideration to the controversy involved, I thin that the submissions made on behalf of the petitioner have force. It is the admitted position that the‑ suits at Gujrat and Sheikhupura pertain to the custody of the 'same child and that the suit of the petitioner filed at Gujrat is earlier in time. Since the two 'suits are likely to have the same issues and same set of evidence may have to be led, it would be in the interest of justice and to avoid multiplicity of proceedings that the suit of the respondent, which is subsequent in time, should be transferred to the Court at Gujrat where the suit of the petitioner is pending. The other factor which has persuaded me to come to the above view is that the petitioner is a lady and obviously the convenience of a lady litigant and the place of her residence has to be given due consideration while deciding transfer application of suits filed against her.

6. So far as the contention raised on behalf of the respondent that both the suits should be transferred to District Gujranwala, suffice it to say, has no bearing upon the controversy involved and such a reason cannot be made the basis for transfer of cases outside the District where the cause of action has arisen. It is also the admitted position .that the child whose custody is claimed both in the suits is residing at Gujrat with the petitioner and, therefore, the Guardian Judge at Gujrat has the jurisdiction to try the suit of the respondent as well. In view of the foregoing position, this petition is allowed and it is directed that the suit titled "Allah Ditta v. Mst. Bilqis Bib!" pending before the Senior Civil Judge/Guardian Judge, Sheikhupura be transferred to the Court of Guardian Judge, Gujrat before whom the suit of the petitioner against the respondent is pending. The learned Guardian Judge, Gujrat shall examine the desirability of consolidation/trial of both the shits together. The parties have been directed to appear before the Guardian Judge, Gujrat on 16‑12‑1981. There will, however, be no order as to costs. S. Q. Application accepted.