2017 PLP 2224 (YLR)

SHAHNAWAZ TARIQ, J.

Through captioned transfer application, applicant Dr. Shakeela has prayed for transfer of Guardians and Wards Application No.28 of 2014, Re-Dr. Aqeel Ahmed v. Dr. Shakeela Aqeel, sub-judice before the Court of III-Family Judge, Kandiaro, to any other Court at Kandiaro.

2. Necessary facts spelt out from instant transfer application are that respondent filed Guardians and Wards application against applicant before the Family Court, Kandiaro, for the custody of minor son. The respondent also filed application under section 12 of Guardians and Wards Act, 1890, which was allowed by the Court. Applicant agitated said impugned by preferring F.A. No.01 of 2015, which is still pending before the Court of Additional District Judge, Kandiaro. Due to non-production of minor before the Court, respondent filed another application under section 12 of G & W Act read with section 100, Cr.P.C. which was allowed, hence instant transfer application.

3. Learned Counsel for applicant contended that learned trial Court has been passing harsh orders against the applicant and even due to non-production of minor for some dates, search warrant was issued under section 100, Cr.P.C. through concerned SHO, hence applicant has lost her faith that she will not get proper justice from learned trial Court.

4. While controverting the above submissions, learned Counsel for respondent contended that applicant has filed instant transfer application with ulterior motive only to defeat order dated 29.05.2015, passed by the learned trial Court directing the applicant to produce minor for meeting with the respondent and till date said has not been complied with in its letter and spirit; that there was no stay order by the appellate Court in family appeal, therefore, trial Court has rightly passed order on application moved under section 100, Cr.P.C.

5. Heard learned Counsel for the parties and examined the material available on record minutely.

6. Perusal of record emanates that respondent contracted marriage with applicant on 31.08.2008 and out of their wedlock one issue namely Mohammad Haris alias Irfan Imam Bux was born. After their marriage, spouse lived at Karachi as respondent had a job in Jinnah Hospital, Karachi, as Medical Officer, while applicant was doing private job in evening in Bakhat Bhari Hospital, Karachi. Thereafter applicant got Government Service as WMO in RHC Kamal Dero, Taluka Kandiaro. It is further averred that due to domestic disputes applicant filed suit for dissolution of marriage before the Family Court which was decreed and their marriage tie was dissolved. Subsequently, respondent filed G & W application for custody of minor under sections 10 and 25 of Guardians and Wards Act, 1890, along with application under Section 12 of Guardian and Wards Act. Indeed, learned trial Court vide order dated 29.05.2015, has allowed application moved by the respondent for meeting with the minor son, but applicant has not complied with said order. Consequently, respondent moved application under section 12 of G & W Act read with section 100, Cr.P.C. for issuance of search warrant for recovery of minor through concerned SHO, and the Court considering its earlier order and demeanor of the applicant, allowed said application vide order dated 23.05.2015, directing the SHO to recover and produce the minor. It is significant to mention that applicant pursuant to the Court order, did not produce the minor before learned trial Court for a single date for meeting with respondent. The operative part of the order is hereby re-produced as under:-- "It is admitted position that the order of this Court is intact and operative. The opponent was bound to comply with the directions of the Court. But opponent failed to comply with the previous order of the Court, resultantly the applicant has preferred this application. I am left with no option but to allow the instant application with the directions to SHO Kandiaro to produce the Ward namely Mohammad Haris alias Irfan Imam Bux Ujjan aging about 05 years residing with opponent on the above address on alternate statuary for meeting with applicant named above. The SHO Kandiaro is hereby directed to treat this order as warrant of production of the minor under section 100, Cr.P.C. The opponent failed to comply with the order of this Court since the order contains the first meeting was to be started from the 06th day of June, 2015, but due to non-compliance of the order the same is hereby to be treated as 27th day of June, 2015."

6. While dealing with the transfer application, Court should examine the entire allegations in the purview of other connected circumstances and reasons narrated therein thoroughly, mere expressing dis-satisfaction or demonstrating loss of confidence upon the Court is not sufficient for the transfer of the Case from one Court to another Court. It is well settled that the aggrieved party seeking transfer of the case from one Court to another Court should place solid grounds and serious events in support of his allegations which prime facie reflect that there are sound reasons that justice will not be administered by the trial Court and non transfer of the matter will cause miscarriage of justice. Case should not be transferred on the mere wish and whim of the party which has failed to obtain orders from the trial Court as per its own choice, and moved transfer application with sole object to cause unnecessary delay in dispensation of justice. Now a days, a trend has developed that transfer applications are being preferred as a routine without any legal justification which on one hand are causing delay in adjudication of the main case, and on other hand causing harassment to the trial Court not to pass judicial orders prudently. It is need of the time that such mal-practice should be discouraged by the appellate Courts. In present case, applicant though had an alternate legal remedy to agitate her grievances by approaching the learned District Court by preferring transfer application, but she has directly filed instant transfer application before the High Court which shows the mala fide on her part and to develop pressure upon the trial Court which was competent to pass an appropriate order on application moved by the respondent under section 100, Cr.P.C., when there was no restraining order passed by the appellate Court in family appeal filed by the applicant, and mere filing of appeal against the impugned order does not put any embargo upon the trial Court from conducting further proceedings of the main case.

7. Considering the above fact and circumstances, I am of the considered view that applicant has failed to place any reasonable ground for transfer of main G & W application from the learned trial Court to another Court, hence instant G & W transfer application stands dismissed being devoid of any legal substance. MH/S-57/Sindh Application dismissed.