1994 PLP 2273 (MLD)

In this application under section 24 of the Code of Civil Procedure read with section 151, C.P.C. seeking transfer of a civil suit for permanent injunction titled M/s. Wilson's Pharmaceuticals v. Glaxo Limited and another registered as Civil Suit No.10/1992 from the Court of learned District Judge, Rawalpindi to the file of this Court, the first hurdle to be overcome by the petitioner is the maintainability of the petition at the Principal Seat.

2. This hurdle, as pointed out on the last date of hearing to the learned counsel for the petitioner (Ch. Fatal-i-Hussain) arises in view of Rule 3 of the Lahore High Court (Establishment of Benches) Rules, 1981 which lays down that all matters arising within the area assigned to a Bench, shall be filed before and disposed of by that Bench. Mr. Sharifuddin Pirzada, learned counsel for the petitioner has today submitted that rule 3 ibid is only procedural and should not be read so rigidly so as to debar the institution of the petition at the Principal Seat notwithstanding the position that the cause has arisen within the jurisdiction of Rawalpindi Bench as the Chief Justice is the Chief for whole of the High Court including the Benches. He has 0 support of the above contention, relied on Mian Muhammad Nawab v. Rifat Sharif and another PLD 1990 Lah. 19.

3. I am afraid the contention raised will not be tenable in the attendant circumstances of the case. It is the admitted position that the cause of this' transfer petition has arisen within the jurisdiction of Rawalpindi Bench as the it sought to be transferred is pending before the learned District Judge, Rawalpindi. The precise point that falls for consideration is whether the transfer petition should be directly entertained at the Principal Seat or should have been filed at the Bench. Benches have been established by virtue of Article 198 of the Constitution of the Islamic Republic of Pakistan. In pursuance of sub-Article (6) of Article 198, the Lahore High Court (Establishment of Benches) Rules, 1981 have been promulgated. Rule 3 of these rules in mandatory form lays down that matters cause of which arises within the jurisdiction of a Bench shall be filed before and disposed of by that i Bench. As already observed the cause of this transfer petition has admittedly arisen within the jurisdiction of Rawalpindi Bench and exercise of jurisdiction under section 24 of the Code of Civil Procedure is as much available to a learned Judge of this Court sitting at that Bench as may be available to any other Judge or for that matter the Chief Justice sitting at the Principal Seat. The special power conferred upon the Chief Justice by virtue of Rule 5 of the Rules referred to above can only be invoked when a transfer of any proceedings pending at the Principal Seat of the High Court or a Bench to another Bench or the Principal Seat of the High Court is sought for. In the case in hand the above rule is not attracted as it is not transfer of a case from a Bench to the Principal Seat or vice versa which has been sought for but the transfer has been requested for under section 24, C.P.C. from a subordinate Court to the High Court itself. The availability of Chief Justice, therefore, for hearing this petition is not necessary. In the context of the position that rules governing the subject are to give effect to a Constitutional mandate, the same have to be followed firmly especially when the language used is mandatory in nature and admits of no other interpretation so as to read the word "shall" as "may'. There is thus no escape from holding that the petition is not maintainable directly at the Principal Seat.

5. Before parting with the case it may be observed that the cited case PLD 1990 Lah. 19 proceeds on wholly different facts and the rule laid therein has no application to the facts and circumstances of the case in hand inasmuch as in the said case transfer of proceedings pending in a subordinate Court within the jurisdiction of Rawalpindi Bench to a subordinate Court in the area assigned to Bahawalpur Bench had been prayed for while in the present case the request is for transfer of the case from a subordinate Court to the High Court itself.

6. Resultantly, without embarking upon the merits of the case, I would direct that the transfer petition be returned to the petitioner for presentment at the appropriate Bench. AA./W-53/L??? ??????????????????????????????????????????????????????????????????????????????????? Order accordingly.