2022 PLP 1051 (YLR)

MUHAMMAD RAZA QURESHI, J.

This is a Transfer Application under section 25-A of Family Courts Act, 1964.

2. According to learned counsel for the Petitioner the marriage of the Petitioner with Respondent No.1 was solemnized on 27.04.2018 and pursuant to a dispute the Petitioner being wife filed a Suit for Dissolution of Marriage along with Recovery of Maintenance as well as Dowry Articles. The said Suit is presently pending adjudication before the learned Judge, Family Court, Sheikhupura.

3. Through this Transfer Application the Petitioner has sought transfer of subsequent Suit filed by the husband before the Court of plenary jurisdiction seeking Declaration with Consequential Relief and Recovery of Gold Ornaments along with an amount of Rs.1,000,000/- which is pending adjudication before the learned Civil Judge, Lahore. According to learned counsel for the Petitioner the Petitioner is presently working as Lecturer of the subject of Chemistry in BS-17 and presently posted at Government Degree College for Women, Safdarabad, District Sheikhupura, therefore, the Petitioner faces hardships being a female to travel from Sheikhupura to Lahore on every date of hearing that too in a Suit, which husband has filed just to harass the Petitioner. Learned counsel for the Petitioner submits that provision of Rule 6 of the West Pakistan Family Courts Rules, 1965 leans in favour of the forum situated at the place convenient to the wife and argues that the primary consideration in such matter is the avoidance of the travelling of a female to a distant forum chosen by the husband. Accordingly, it has been prayed that since the Suit filed by the Petitioner is pending determination at Sheikhupura, therefore, the Suit instituted by the husband at Lahore may also be transferred to the Courts at Sheikhupura from Lahore.

4. The Respondent pursuant to notices issued by this Court has appeared personally and submits that admittedly the Petitioner works at Sheikhupura but in terms of law his Suit cannot be transferred from Lahore to Sheikhupura as it will be too inconvenient for him to travel to Sheikhupura.

5. Arguments in the matter have been heard and record is perused and at the outset this Court considers that the Application in terms of section 25-A of Family Courts Act, 1964 is not maintainable as the said provision creates a remedy for transfer of Suits filed under the same jurisdiction whereas in the instant case the Suit filed by the Petitioner falls under the jurisdiction of Family Court whereas the Suit filed by the husband is before the Civil Court in exercise of its plenary jurisdiction.

6. When confronted, learned counsel for the Petitioner submits that it cannot be denied that both Suits are out of two different jurisdictions but for quoting a wrong provision the Petitioner cannot be penalized, likewise, he submits that this Court has ample power in terms of section 24 of Code of Civil Procedure, 1908 to transfer the Suit from Lahore to Sheikhupura and convert one proceeding into another.

7. In the facts and circumstances of the case it is noticed that the Suit filed by the Petitioner is prior in time and was instituted on 04.08.2020, whereas Suit for Declaration filed by the husband is subsequent in time filed before the Courts at Lahore on 27.04.2021 and generally in such kind of disputes the principle is that subject to law the forum of convenience for a wife takes precedence for a purpose of determination of such kind of controversies. Especially in view of fact that the partial cause of action of the Suit filed by the husband has accrued at Sheikhupura. The husband is also travelling to Sheikhupura to contest the trial proceedings initiated by the wife before the Family Courts for the purpose of attending trial, cross-examining witnesses and presenting his own defence before the learned Family Court at Sheikhupura, therefore, the transfer of Suit from Lahore to Sheikhupura would not cause any hardship to the husband.

8. In any event it is settled position of law that in Suit before the Court of plenary jurisdiction subject to provisions of Sections 16 to 20 of Code of Civil Procedure 1908, the territory of place of residence of the defendant is to be followed. Therefore, it is held that if a hardship or inconvenience is to be compared or evaluated between husband and a wife the precedence is to be given to the hardship and inconvenience of a wife being a female. Since on merits as well as in the facts and circumstances the prayer for transfer of proceeding from one district to another has a substance and the instant case satisfies the tests of law the conversion of one proceeding into another shall not be problematic. As the technical rules unless insurmountable should yield to interest of substantial justice. Reliance in this regard is placed on the principle laid down in the Judgment reported as 1994 SCMR 1555 titled "Jane Margrete William v. Abdul Hamid Mian" wherein the august Supreme Court of Pakistan held at page 1557 as under:- "There was nothing in law which prevented the Court from treating the Application under section 151, C.P.C. filed by plaintiff, as cross-objections to the Appeal filed by the defendants if it was otherwise competent in law. All rules of procedure framed for regulating the proceedings before a Court or Tribunal are meant for advancing the course of justice. Therefore, procedural laws and rules cannot be used as a means for denying the relief to an aggrieved party on ground of technical non-observance of these rules or procedural laws. Keeping these principles in view the Courts have always liberally allowed conversion of proceedings of one kind into another and misdescription in the title of proceedings or mention of a wrong provision of law have never been considered fatal to the grant of relief if it was otherwise available under the law to an aggrieved party. High Court, therefore, was fully competent to treat the Application under section 151, C.P.C. filed by the plaintiff as cross-objections in the Appeal filed by the defendants."

9. The principle of conversion of one proceeding into another is also supported by the Judgments reported as PLD 1984 Supreme Court 164 titled "Abdul Aziz and others v. Sheikh Abdur Rahim and others" and 2017 SCMR 56 titled "Muhammad Akram v. DCO, Rahimyarkhan and others" wherein the august Supreme Court of Pakistan held at page 59 as under:- "The Courts are sanctuaries of justice, and in exercise of authority to do ex debito justitiae, that is to say remedy a wrong and to suppress a mischief to which a litigant is entitled. No fetters or bar could be placed on the High Court and or this Court to convert and treat one type of proceeding into another type into another and proceed to decide the matter either itself provided it has jurisdiction over the lis before it in exercise of another jurisdiction vested in the very Court or may remit the lis to the competent authority/forum or Court for decision on merits. Courts have been treating and or converting appeal into revisions and vice versa and Constitution Petitions into Appeal or revision and vice versa."

10. Therefore, contrasting the legal effect of the principle of conversion; the precedence of wife for determining a convenient forum; and the principle of hardship, this Court converts the instant Transfer Application from Section 25-A of the West Pakistan Family Courts Act, 1964 into an Application under section 24 of C.P.C. wherein this Court has ample power on its own motion or on an Application of any of the parties to transfer any Suit to any Court subordinate to it and consequently, it is ordered that the Suit filed by the husband pending adjudication before Mr. Mudassar Hassan, Civil Judge Ist Class, Lahore titled "Amir Ali v. Saira Arif" be transferred before the Court of competent jurisdiction at Sheikhupura.

11. The parties are directed to appear before the District and Sessions Judge, Sheikhupura on 02.09.2021 who shall delegate the Suit proceedings filed by husband titled above to the Court of competent jurisdiction at Sheikhupura.

12. For what has been stated above the instant Transfer Application is allowed. SA/S-66/L Application allowed.