2001 PLP 1319 (CLC)

Mst. Nichhawar Jan's case 1979 CLC 613 ref. (d) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 24‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑‑Transfer of case without notice to other party‑‑‑District Judge without notice to the appellant transferred the case from one Trial Court to the other Court‑‑‑Appellant filed application under S.24, C.P.C. in High Court and the same was dismissed‑‑‑Validity‑‑‑Sole grievance of the appellant for the transfer of the case was that the respondent was Member of Provincial Assembly‑‑‑When the respondent was no more the member and no allegation was made against the Presiding Officer of Trial Court, High Court declined to interfere in intra‑Court appeal in circumstances. Ahmad Khan v. The Chief Justice and Judges of the High Court of West Pakistan PLD 1968 SC 171; Asad Ali's case PLD 1974 Kar. 345; Ilyas Khan's case PLD 1996 SC 543 and Begum D.F. Hussain's case PLD 1974 Lah. 117 ref. Mrs. Sadiqa Altaf for Appellants. Sardar Roshan Ali Sindhu for Respondents. Brief facts out of which the present I.C.A. arises are that appellants filed suit against respondents Nos.l and 2 for Specific Performance in the court of Mr. Jamshed Hussain Civil Judge 1st Class Ferozewala under sections 39 and 32 of the Specific Relief Act. One of the defendant- respondent. In expressed lack of faith in the Court upon which the Court made reference to the District Judge Sheikupura. Learned District Judge Sheikhupura vide order, dated 2‑6‑1999 withdrew the suit from the Court of Mr. Jamshed Hussain Civil Judge 1st Class and transferred to the Court of Akhtar Bahadur, Civil Judge 1st Class, Sheikhupura vide order, dated 2‑6‑1999. The appellants filed Transfer Application No.218‑C of 1999 before this Court which was dismissed by the learned Single Judge vide order, dated 25‑9‑2000. Hence the present appeal.

2. Pre‑admission notice was issued to the respondents by the Division Bench vide order, dated 13‑11‑2000 to examine the question whether the order under section 24, C.P.C. can be defined as an order passed in original jurisdiction and is appealable under section 3 of the Law Reforms Ordinance, x1972. Learned counsel District Judge has concurrent jurisdiction to transfer a case under section 24 of the C.P.C. The High Court has entertained the application under section 24 of the C.P.C. in original jurisdiction. On merits learned counsel for the appellants submits that District Judge transferred the case without providing proper hearing to the appellants but this fact was not considered by the learned Single Judge in the impugned order.

3. Learned counsel for the respondents submits that the High Court has supervisory jurisdiction to transfer cases from one Court to another Court under section 24 of the C.P.C. He further submits that the learned District Judge can transfer the case without notice to the parties. He further submits that impugned order of the learned Single Judge as well as the order of the District Judge is valid in the law.

4. We have considered the contentions of the learned counsel for the parties and perused the record ourselves. Before proceeding further, we find it necessary to have brief chronological account of law relating to I.C.A. A few words about letters patent and its successors legislation i.e. the Law Reforms Ordinance, 1972. The various High Courts, in the sub‑continent were constituted by British Government under the instrument known as letters patent issued in exercise of its power' under section 108 of the Government of India Act, 1935. This instrument was continued thereafter and was continued by the Government of Pakistan with necessary amendments and by means of various adoption orders till 1972. That year the Law Reforms Ordinance, 1972 was enacted on 14‑4‑1972. By. means of section 3 of this Ordinance, letters patent appeals and 2nd appeals in certain cases were abolished. Subsequently, the amendment was made in this Law Reforms Ordinance, L972 by amending Ordinance 34 of 1972 whereby section 3 was amended to provide for an appeal to the Bench of two or more Judges of the High Court from decree passed or final order made by the Single Judge of that High Court in exercise of its original civil jurisdiction. It is better and appropriate to reproduce section 3(1) of Law Reforms Ordinance "an appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that High Court in the exercise of its original civil jurisdiction." The question before us for determination is what is the status of order passed by this Court under section 24, C.P.C. Section 24, C.P.C. confers upon the High Court general power to transfer, withdraw and transfer at any stage a pending suit, appeal or other proceeding either suo motu or upon an application made by a party. Mere reading of section 24 C.P.C. envisages that High Court has power of supervision, superintendence. High Court has wide power under section 24, C.P.C. to transfer a case even outside the territorial limits of the District for administrative reasons in the interest of justice and fair‑play. In arriving to this conclusion we are fortified by Messrs Agriculture Traders 1993 CLC 1892. Power of this Court under section 24, C.P.C. is equivalent to power of this Court under Article 203‑of the Constitution of Islamic Republic of Pakistan as is held by our brother the then Ishan‑ul‑Haque Chaudhary, J. in Diwan Azmat Saeed Muhammad's case 1996 CLC 1427. The Constitutional jurisdiction though the original jurisdiction is distinct from the original civil jurisdiction. It was observed by the learned Judges of the Supreme Court in Ahmad Khan v. The Chief Justice and Judges of the High Court West Pakistan PLD 1968 SC 171 that the jurisdiction must obviously be described as a Constitutional jurisdiction of an original kind. Again in Asad Ali's case PLD 1974 Kar. 345 it was observed as follows:‑‑ "The judgment in a Constitutional jurisdiction would not be a judgment in exercise of a original civil jurisdiction." The Honourable Supreme Court has considered difference between the original civil jurisdiction and ordinary civil jurisdiction in Ilyas Khan's case PLD 1996 SC 543, High Court has exercised power under Article 102 of the Constitution of 1962 which is equivalent to Article 203 of the present Constitution. In Begum D.F. Hussain's case PLD 1974 Lah. 117 who filed a petition under Article 102 of the Constitution of 1962 which was fixed before the learned Single Judge who dismissed the same. She being aggrieved filed I.C.A. which was dismissed as the same was not competent in view of Law Reforms Ordinance, 1972 as is envisaged by section 3(1) of Law Reforms Ordinance, 1972. The relevant observation is as follows:‑‑ "Since the original proceedings are pending in a Court other than the High Court which is manifest that the High Court in exercise of its jurisdiction under Article 102 of 1962 Constitution cannot be said to be exercising its original civil jurisdiction." We have also examined the case on merits. Section 24 cast duty upon the District Judge to decide the case after notice to the other party and in case the District Judge had decided the case without notice to the other party is merely an irregularity especially when no prejudice proved. In arriving to this conclusion we are fortified by Mst. Nichhawar Jan's case 1979 CLC

613. Even otherwise, on merits the sole grievance of the appellants for transfer of a case does not exist as the respondent is no longer the M.P.A. The appellants did not allege a single allegation against the Presiding Officer, In view of what has been discussed above, this I.C.A. is not maintainable and also dismissed on merits. Q.M.H/M.A.K./N‑72/ Appeal dismissed.