2005 PLP 260 (YLR)

Date of hearing: 1st October, 2003. This petition challenges the order dated 30-5-2003 passed by the learned Vth A.D.J., Karachi South, in F.R.A. No.266 on 2001 dismissing the same solely on the ground that said order was passed without jurisdiction as the transfer of the said F.R.A. to the learned Appellate Court was unlawful.

2. Per Mr. Shafi Muhammadi, learned counsel for the petitioner, the respondent/ landlord had filed R.C. No. 1622 of 1998 against the petitioner for ejectment from the rented premises on the ground of personal need as well as nuisance etc. which was allowed and against which the petitioner had filed F. R. A. No. 108 of 2001 before the Court. Said F.R.A. by virtue of amendment in the Sindh Rented Premises Ordinance was transferred to the learned District Judge, Karachi South who in turn marked it to the learned Vth A.D.J., Karachi South for disposal according to law. Said learned Presiding Officer after hearing the parties had reserved the order but in the meanwhile the respondent moved an application for transfer of the said F.R.A. which was renumbered as 266 of 2001 and the same was allowed, without any notice and hearing the petitioner. Upon transfer of said F.R.A. to the learned VIIth A.D.J., Karachi South, the final order dated 30-5-2003 was passed based on the written arguments but again without hearing the petitioner's counsel.

3. Per Mr. Shafi Muhammadi therefore, the transfer application moved before learned D.J., South could not be granted once the matter had been marked to a learned Judge after being received from this Court and after substantial proceedings had taken place as in the present case. In this connection he relied upon sec tion 21(1-A) of the Sindh Rented Premises Ordinance, 1979 which provides that whenever an appeal is filed the order of any Controller to the District Judge he may hear it himself or refer it for disposal to an Additional Judge. Learned counsel has therefore, submitted that once this exercise had been undertaken then transfer to another learned Additional District Judge could only be done by this Court under section 21(1-E)(b) of the Ordinance as the learned District Judge has, powers under section 21(1-E)(a) of the Ordinance to withdraw any rent application pending with the Controller and transfer the same for disposal to any other Controller.

4. In support of his contentions, learned counsel relied upon Haji Khawar Saleem v. The State 2001 SCMR 905; Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66 and Asghar Ali v. The State 1992 MLD 1533.

5. On the other hand Mr. Rana Muhammad Ahmed Khan has submitted that initially the matter was transferred to the Vth A.D.J., Karachi South by the learned District Judge who after hearing it had reserved judgment. However, as the same was not announced for 13 months thereafter the respondent moved an application for transfer of the case to another Judge which was allowed. Per learned counsel this exercise was perfectly legal in terms of section 21(1-B) of the Ordinance as being administrative in nature, it does not provide for any notice to any party before an appeal marked to one learned A.D.J. can be transferred to another A.D.J. He has relied upon Barkat Ali v. Muhammad Ahsan 2000 SCMR 556; Allah Rakha v. Muhammad Shafi 1978 SCMR 437; Muhammad Shoaib Alam v. Muhammad Iqbal 2000 SCMR 903; Mst. Amina Begum v. Ghulam Dastagir PLD 1978 SC 220; Master Moosa Khan v. Abdul Haq 1993 SCMR 1304 and Jamil Ahmed v, Saifuddin 1997 SCMR 260.

6. I have heard the learned counsel and my conclusions are as follows:--

7. It would be seen that per section 21(1) of the Sindh Rented Premises Ordinance an appeal from the final order of the Rent Controller lies to the District Judge having jurisdiction in the area where the rented premises are situated. Per subsection(1-A) the District Judge may hear the appeal himself or refer it to the Additional District Judge. Furthermore, according to subsection (1-B) the learned District Judge may recall an appeal referred to the Additional District Judge and either hear it himself or transfer it to another Additional District Judge. Finally per subsection (1-E)(b) this Court may upon the application of a party and after notice to the other party or on its own motion without such notice, at any stage withdraw any appeal pending with any Appellate Authority and transfer the same to any other Appellate Authority.

8. From a perusal of the aforementioned provisions of law, it transpires that the powers given to the learned District Judge in terms of section 21(1-A) and (1-B) are purely of an administrative nature and hence would be exercisable without giving notice to either party. However, in terms of subsection (1-E)(b) only this Court has the power to transfer the appeal from one Appellate Authority to another when a complaint is made by any party as to the conduct of the appeal by the concerned Appellate Authority or matters ancillary thereto. In the present case, it would be seen that according to the diary of Vie learned Vth A.D.J., Karachi South, the case was received by transfer from the learned District and Sessions Judge Karachi South on 25-9-2001 and thereafter it was adjourned from time to time for hearing. Finally written arguments were filed by the counsel on 11-3-2002 but judgment could not be delivered even uptil April, 2003. Then on 30-4-2003 an application was moved by the learned counsel for the respondent/landlord that as the matter had been inordinately delayed it be heard by the learned District Judge or appropriate orders be passed. Consequently, the learned District Judge transferred the case to the Court of VIIth Additional District Judge, Karachi South. A perusal of the diary of this Court would show that the matter was received by transfer on 8-5-2003 when it was adjourned to 13-5-2003. On this date learned counsel for the respondent was present while none was present on behalf of the petitioner and hence the matter was adjourned to 24-5-2003. On this date learned counsel for the respondent was present who filed a statement that he would adopt the written arguments already submitted by him. The matter was hence posted for judgment on 30-5-2003 which was announced on the same day. In view of the foregoing facts and circumstances I am of the firm opinion that the power exercised by the learned District Judge in transferring the matter to the learned VIIth A.D.J. from the Court of learned Vth A.D.J. was proper and in accordance with law and as this was done purely on the administrative side which did not require any notice to any party. None of the parties had ever alleged any mala fides or other inappropriate behavior/conduct on the part of any Presiding Officer which would more appropriately have been the subject-matter of a transfer application addressed to this Court under subsection (1-E)(b) of the Ordinance. As to the cases cited by learned counsel for the petitioner, in my opinion, the same are distinguishable as they pertain to criminal matters which are regulated under the Criminal Procedure Code and they involve either allegations of impropriety against the concerned Judicial Officers or some jurisdictional defect with the Transferee Court. For this proposition reference can be made to Haji Khawar Salim v. The State, supra. As observed above these are not the facts in the present matter.

9. Having observed as above, it may also be seen that upon receipt of the appeal by learned VIIth Additional District Judge no intimation notices were served upon the petitioner or his counsel. On 24-5-2003 the matter was reserved for announcement of judgment on 30-5-2003 after observing that learned counsel for the respondent who was present before the Court had relied upon the written arguments earlier filed by him, in the circumstances, although counsel for the petitioner had also filed written arguments, the matter could not be decided in his absence which was due to the fact that no intimation notice was issued to the petitioner or his counsel. Consequently in my opinion the impugned order suffers from a grave legal defect viz. it was passed without hearing the petitioner. In the circumstances the same is set aside and the matter remanded to the learned VIIth A.D.J., Karachi South who after issuing intimation notices to both the learned counsel shall thereafter proceed to decide the appeal within two months. Order accordingly. H.B.T./Z-12/K Case remanded.