P L D 2023 Lahore 149 (PLP)

CH. MUHAMMAD IQBAL, J.

Through this writ petition, the petitioners have challenged the legality of order dated 18.02.2017 passed by the learned Civil Judge, Lahore whereby he made a reference of the case and sent the same to the learned District and Sessions Judge, Lahore for its entrustment to the court of competent jurisdiction and order dated 21.02.2017 passed by the learned District and Sessions Judge, Lahore who entrusted the case to the learned Addl. District Judge, Lahore for adjudication.

2. Learned counsel for the petitioners contends that respondent No.1/ plaintiff filed suit for recovery of Rs.8,363,711/- under Order XXXVII, Rules 1 and 2, C.P.C. against the petitioners and respondents Nos.2 to 4/ defendants before the learned Senior Civil Judge, Lahore who entrusted the said suit to the learned Civil Judge, Lahore for 17.02.2017 which was presented before Court on 18.02.2017. He on the very next day made a reference of the case to the learned District and Sessions Judge, Lahore for its entrustment to the court of competent jurisdiction. The said reference was presented before the learned District and Sessions Judge, Lahore who entrusted the case to the learned Addl. District Judge, Lahore vide order dated 21.02.2017, as such, both orders are illegal and may be set aside.

3. I have heard the arguments advanced by the learned counsel for the parties and gone through the entire record with their able assistance.

4. The sole grievance agitated by the petitioner through the instant petition is that the Civil Judge, Lahore, who was not competent to entertain the suit under Order XXXVII, C.P.C. filed by the respondent No.1 and instead of making reference to the learned District Judge, Lahore, the Civil Judge, Lahore should have returned the plaint to respondent No.1 and the petitioner has further objected that the learned District Judge, Lahore illegally entertained the reference and marked/entrusted the case to an Additional District Judge. Firstly, it is to be seen that whether the learned Civil Judge, Lahore was competent to entertain the suit under Order XXXVII, C.P.C. Admittedly, respondent No.1 filed suit for recovery of Rs.8,363,711/- under Order XXXVII, Rules 1 and 2, C.P.C. against the petitioners and respondents Nos.2 to 4 before the Senior Civil Judge, Lahore who marked the case to Civil Judge, Lahore. In terms of letter dated 21.10.1974 written by the Member, Inspection Team, Lahore High Court, Lahore the District Judge as well as the Civil Judges 1st Class of Lahore are competent to adjudicate suits under Order XXXVII, C.P.C. For reference, the above said letter is reproduced as under: "I am directed to refer to your letter No.2284-G dated 14.09.1974 on the above subject and to inform you that through an amendment of this Court made through Notification No.224-G dated 5th July 1923 and No.456-Gazette/XI-Y-15 dated 29th July 1932, published in Chapter 21 (formerly Chapter 22) High Court Rules and Orders, Volume I Order XXXVII of the Code has already been made applicable to the District Judge and all subordinate Judges of the 1st Class in the Civil District of Lahore." The Hon'ble Larger Bench, consisted of Five Members of the august Supreme Court of Pakistan resolved this controversy and upheld the notification reproduced above in a case cited as Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi (PLD 1988 SC 124). In the case (supra), a suit under Order XXXVII, C.P.C was being adjudicated by the learned Senior Civil Judge, Lahore whose jurisdiction to entertain the lis was challenged before this Court. This Court held that the suit under Order XXXVII, C.P.C. should only be adjudicated by a District Judge and/or an Additional District Judge but the said findings of this Court were set aside by the Hon'ble Supreme Court of Pakistan in judgment (supra). For reference, relevant portion of the judgment (supra) is reproduced as under: " . The relevant entry reads "in Order XXXVII, rule 1 for the words "and to District Court" the commas and words, to the District Court and to any other Civil Court notified in this behalf by the High Court" shall be substituted. The specific place having been indicated and the amendment introduced by clause (e) of the High Court of Lahore remains intact and has been intentionally kept intact. The decision of this Court in Siraj and Company clearly indicated that where the procedure under Order XXXVII was being claimed by a plaintiff and was not available the trial Court could proceed with the case as an ordinary suit. The High Court has not indicated any jurisdictional or procedural bar to it while determining that the decision of this Court in Siraj Din's case was obiter. In Muhammad Abdullah Sufi v. Messrs Muhammad Bux and Son and others PLD 1957 (W.P.) Karachi 445 the view taken was that where a suit was not triable by resort to the procedure prescribed in Order XXXVII, its trial could proceed as an ordinary suit. The law laid down by this Court was clearly attracted. As regard the contention of the learned counsel for the respondent that the rule introduced by the amendment by the Lahore High Court touched the jurisdiction and was in excess of its powers possessed under section 128 read with section 122, C.P.C. is clearly untenable. Order XXXVII relates to the procedure and not the jurisdiction. The amendments introduced by the High Court only identified the Courts where resort can be had to Order XXXVII for the purpose of trial of a suit of a particular category." Reliance in this regard is also placed on case cited as Messrs Sh. Siraj and Company and another v. Habib Bank Ltd., Lahore (1969 SCMR 784).

5. As per the notification reproduced above and the dictum laid down by the Hon'ble Supreme Court of Pakistan, it is crystal clear that the Civil Judges 1st Class in District Lahore are also competent to adjudicate the matter, however, for safe administration of justice, the learned Civil Judge, Lahore made reference to the learned District Judge, Lahore for adjudication of the case by an Additional District Judge, Lahore. Furthermore, Under Chapter 13, Volume I of the Rules and Orders of the Lahore High Court, Lahore, the Civil Courts are also competent to make a reference of a case to superior authority for its entrustment to any other Court of competent jurisdiction. As such, no illegality has been committed by the learned Civil Judge, Lahore and further by way of these proceedings, no prejudice is being caused to the petitioners.

6. As regard the second limb of the objection raised by the learned counsel for the petitioner that the learned District Judge committed illegality by entertaining the reference made by the learned Civil Judge, Lahore and further by entrusting the suit to an Additional District Judge. The learned District and Sessions Judge, Lahore being the head of the District Judiciary, under section 15 of the Punjab Civil Courts Ordinance, 1962, is competent to entrust/distribute the cases among the Courts of competent jurisdiction. For ready reference, section 15 of the Ordinance ibid is reproduced as under: "Power to distribute business. Notwithstanding anything contained in the Code of Civil Procedure, 1908 every District Judge may by written order direct that any civil business cognizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he thinks fit: Provided that no direction issued this section shall empower any Court to exercise any powers or deal with any business beyond the limits of its jurisdiction." Under section 24, C.P.C, the District Judge on the application of any of the parties and after notice to the parties or of its own motion, without such notice, can transfer any case or withdraw any case or appeal etc. pending before court subordinate to it. For reference, section 24, C.P.C is reproduced as under: "

24. General power of transfer and withdrawal.

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same ; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same ; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under subsection (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed to subordinate to the District Court. (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes."

7. For what has been discussed above, it can conveniently be held that the Civil Judge, Lahore committed no illegality or irregularity in making the reference of the suit in question to the learned District Judge, Lahore who also rightly entertained the same and entrusted the case to an Additional District Judge. Thus, this Court is not inclined to interfere with the said just and legal orders.

8. In view of above, this writ petition being devoid of any merits is dismissed. However, if the matter is still alive, the learned Addl. District Judge, Lahore shall decide the same as early as possible. SA/G-19/L Petition dismissed.