P L D 1988 Lahore 429 (PLP)

Facts giving rise to this petition are that the petitioner, Rahim Jan, filed a suit against the respondent, S. Ikram Girdezy. The suit was being heard by a Civil Judge of Lahore when the respondent made application praying that in view of arbitration clause in an agreement entered into by the parties the matter in dispute be referred to arbitration. His plea did not find favour with the learned Civil Judge. The respondent, therefore, came up in revision to this Court. When his revision petition was placed before my learned brother, Muhammad Afzal Lone, J., the parties agreed to refer the dispute to Mr. Justice (Rtd.) Salah‑ud‑Din, a former Judge of the Supreme Court, for arbitration. On this, my learned brother disposed of the civil revision in terms of the agreement reached by the parties. The parties then went before the learned Civil Judge and he referred the matter to the learned arbitrator. He gave an award which was objected to by the respondent. His objections were overruled by the learned Civil Judge and the award was made rule of the Court. Thereupon, the respondent filed appeal before this Court which was returned to him for presentation before the District Judge, Lahore. View taken by this Court was that the learned District Judge was competent to hear the appeal. Judgment of the High Court in this regard was assailed by the respondent, before the Supreme Court, by means of a Civil Petition for Special Leave to Appeal. Appeal returned by the High Court was also filed by the respondent before the District Judge, Lahore who entrusted it to one of the Additional District Judges with him. It was, however, returned by the learned Additional District Judge with the remarks that it could not be entertained due to the pendency of the said petition before the Supreme Court. Order of the learned Additional District Judge returning the appeal was challenged by the respondent before this Court by means of another civil revision. That revision was pending when the parties agreed, before the Supreme Court, to the filing of the appeal before the District Judge. In pursuance of their agreement in this regard, petition before the Supreme Court was withdrawn by the respondent. He then re‑filed his appeal before the learned District Judge. Civil revision filed before this. Court, against order of the learned Additional District Judge, returning the appeal, was also withdrawn by the respondent.

2. While re‑filing appeal before the learned District Judge, the, respondent made an application, under sections 5 and 14 of the Limitation Act, 1908, for condonation of delay in presenting the appeal. On 11th June, 1987, when the learned District Judge proceeded to hear the application, one of the arguments raised by learned counsel for the respondent was that the respondent had been pursuing different remedies before different forums in good faith and with due diligence and, therefore, he was entitled to condonation of delay. It was also pointed out by him that the respondent had engaged a senior counsel, namely, Mr. (now Mr. Justice) Muhammad Arif, who had handled the respondent's case all through, till his elevation to the Bench. On , this, learned counsel for the petitioner moved an application before the learned District Judge stating that he (District Judge) would be embarrassed in adjudicating upon the issue and, therefore, the case may be referred to this Court or he may be allowed time to apply for transfer of the case to this Court. Learned District Judge did not agree to the first suggestion stating that he was. "duty bound to hear the appeal under the direction of the Supreme Court" and that if the learned counsel for the petitioner wanted to move "any miscellaneous application in the High‑Court for the transfer of the appeal", he "must provide him an opportunity". With these remarks the case was adjourned by the learned District Judge. The respondent then made the present petition for transfer of appeal from the Court of the learned District Judge to this Court.

3. It was contended by Mr. Raza Kazim, Advocate, learned counsel for the petitioner, that since the conduct of former counsel for the respondent, who is now a sitting Judge of this Court, would be in issue before the learned District Judge, he (District Judge) would feel embarrassed in deciding the matter and, therefore, it deserves to be transferred to this Court.

4. On the other hand, it was maintained by Raja Muhammad Anwar, Advocate, learned counsel for the respondent, that this is a frivolous petition. He referred to following portion of order, dated the 11th June 1987, passed by the learned District Judge to urge that he (District Judge) would have no difficulty in deciding the question of condonation of delay:‑ "During arguments he (learned counsel for the appellant) referred to the fact that a very senior Advocate had been pursuing the appeal on behalf of the appellant who had been now raised to the Bench and this was to stress the point of bona fide and faithful prosecution of appeal. On this the learned counsel for the respondent has moved an application that this Court would be embarrassed in appreciating the facts and that the matter be referred to the High Court or he may be allowed to move the High Court. I am not inclined to agree with the first request because I am duty bound to hear the appeal under the direction of the Supreme: Court. It the learned counsel for the respondent wants to move any miscellaneous application in the High Court for the transfer of the appeal, think I must provide him an opportunity." It was further submitted by learned counsel for the respondent that since the conduct of a Judge of this Court is not in issue the learned District Judge, will have no embarrassment in deciding the case. Another argument raised by him was that if the matter is transferred to this Court, the respondent would be deprived of the remedy of revision which could be made use of by him if question of condonation of delay is decided against him by the learned District Judge. This, according to the learned counsel for the respondent, would be violative of clause (i) of Article 25 of the Constitution. It was further urged by him that this petition was mala fide inasmuch as the petitioner had received Rs.500,000 under the award in question and wanted to utilize that sum for an indefinite period, without any entitlement. According to learned counsel for the respondent, there was no reasonable ground for apprehension that the learned District Judge would not be able to do justice in this case. One more point canvassed by him was that in pursuance of agreement reached by the parties before the Supreme Court, the Supreme Court had directed the District Judge to decide the matter by 30th April 1987 and as this Court is obliged to act in aid of the Supreme Court, the transfer of case from the Court of learned District Judge would offend against Article 190 of the Constitution.

5. In reply. it was pleaded by learned counsel for the petitioner that this petition was not frivolous inasmuch as there was a delay of about 3 years and 10 months which was sought to be condoned. According to him, the said delay was caused due to as many as six steps taken by the respondent, from time to time. As for the plea of embarrassment to the learned District Judge, learned counsel for the petitioner invited my attention to the comments of the learned District Judge, on the instant petition, in which it had been stated by him that if "in view of the submissions in respect of the bona fide prosecution of appeal by the then learned counsel for the appellant (now Mr. Justice Muhammad Arif, the appeal is transferred to the High Court", he "would feel rather relieved of the onerous duty of disposing of the appeal under the order of the Supreme Court". It was submitted by the learned counsel for the petitioner that it was difficult for the learned District Judge to hold that learned counsel for the respondent, who is now a Judge of this Court. acted with gross negligence and carelessness in taking the aforementioned six steps, and that if he decided otherwise, the petitioner would not be satisfied with his finding inasmuch as he would feel that in so doing the learned District Judge was influenced by the present position of the former counsel for the respondent. With regard to non‑availability of the remedy of revision to the respondent, it was maintained by learned counsel for the petitioner that order of transfer of the appeal to this Court would not be hit by clause (1) of Article 25 of the Constitution inasmuch as the matter will be heard by this Court in one form or the other. that is, either as an appeal (if transferred to it) or as a revision if decided by the District Judge. He cited Sarjudei v. Rampati Kunwari (A.I.R. 1962 Allahabad 503) in which it was held that section 24 of the Code of Civil Procedure does not violate the guarantee of equality before the law. He also invited my attention to Khawaja Muhammad Saeed v. Mr. Justice Shabir Ahmad and 12 others (P L D 1965 (W.P) Lahore 92) in which it has been stated that a civil suit was transferred by the late Chief Justice M.R.Kayani from the Court of a Civil Judge to the original side of the erstwhile High Court of West Pakistan because one of the parties to the suit was a Judge of that High Court. It was added by learned counsel for the petitioner that in view of his past conduct, the respondent would go to the Supreme Court also if the question of limitation was decided against him by this Court. In regard to the provisions of Article 190 of the Constitution, plea of learned counsel for the petitioner was that the direction, if any, by the Supreme Court related to disposal of the appeal by 30th April 1987, but the respondent has made no grievance regarding non‑compliance with that direction. It was also pointed out by him that there was no application for condonation of delay when the matter was disposed of by the Supreme Court and thus there is no direction by the Supreme Court in regard to that application. Plea of learned counsel for the petitioner was that the judgment of the Supreme Court giving effect to the agreement of the parties was no bar to the transfer of the appeal to this Court In this connection. reference was made by him to a judgment reported as Kammala Seshagiri Rao v. Kammala Somasundaramma and another (A.I.R (36) 1949 Madras 65) in which, on appeal, the suit was remanded by the High Court of Madras to the Subordinate Judge of Masulipatam who had originally decided the suit. Subsequently, the District Judge of Kistna transferred the suit to the Subordinate Judge at Bezwada. When order of the District Judge in this behalf was challenged it was held by the said High Court that there was nothing wrong with the order of transfer made by the District Judge. Lastly, it was pleaded by learned counsel for the petitioner that the respondent was resisting this petition with unclean hands.

6. In the case of Kammala Seshagiri Rao cited by learned counsel for the petitioner, it was held by the High Court of Madras that a case remanded by the High Court to a particular Court could be transferred from it by the District Judge. While laying down this rule, the said High Court also observed as follows:‑ "Different considerations may arise if the order of remand on special grounds' indicates a particular Judge to try a case or not to try it It was urged by learned counsel for the respondent that according, to the above observations, the appeal sought to be transferred could not be withdrawn from the District Judge, Lahore because the Supreme Court had directed him to decide the appeal by 30th April, 1986. 7. 1 agree with learned counsel for the petitioner that it is not a frivolous petition because the delay ,,which is sought to be condoned is of more than 3 years. During that longer period a number of steps were taken by the respondent. from time to time in one direction or the other. These steps have been spelt out at the outset. It is also not mala fide because transfer of the case to this Court will cut out delay in which. according to the respondent, the petitioner is interested due to having secured Rs.500,000 under the award in question.

8. Apprehension of the petitioner that the learned District Judge mould feel embarrassed in deciding the appeal is not baseless because at no stage it was said by him (District Judge) that he would have no embarrassment in this regard. On the other hand, he has made certain remarks which. though couched in guarded language, reveal that he is not feeling comfortable. In his order, passed on 11th June, 1987, it was noted by him that he was "duty bound" to decide the case in accordance with the direction of the Supreme Court. In his para wise comments on this petition as embodied in his letter No.312‑J, of 22nd November 1987, it was stated by the learned District Judge that if the case is transferred to the High Court he would be "relieved of the onerous duty of deciding the appeal". In view of all this, I believe that the learned District Judge is feeling the strain of the appeal and would feel happy if he gets rid of it. There is thus considerable force in the plea of embarrassment raised by learned counsel for the petitioner. 9. 1 also appreciate the contention of learned counsel for the. petitioner that while deciding the question whether the appellant prosecuted the matter before forums other than the District Judge in good faith and with due diligence, the role of former counsel for the petitioner namely, Mr. (now Mr. Justice) Muhammad Arif, would be examined. The learned District Judge is now subordinate to my learned brother Muhammad Arif, J. And the work and conduct of the learned District Judge can come under his scrutiny. I would not say nor it was pleaded at the Bar that the learned District Judge would not do justice. He may do so, despite the embarrassment referred to above; B but, as the saying goes. justice should not only be done but should also appear to have 'been done. If the question of condonation of delay is decided by the learned District Judge in favour of the respondent the petitioner is likely to feel that in deciding the matter, he was influenced by the existing position of the former counsel of the respondent; and if he decides the question otherwise. he may have to comment adversely on the conduct of the said learned counsel, who is now a member of this Court. To make such comments, to my mind. will be extremely difficult, if not impossible, for the learned District Judge. It would, therefore, be in the fitness of things if the appeal is decided not by him but by this Court.

10. As for the order of the Supreme Court with regard to hearing of the appeal by the learned District Judge, there is nothing in that order requiring the appeal to be decided by Mr. Muhammad Amir Malik only while acting as the District Judge of Lahore. Dispute between the parties which was taken before the Supreme Court was with regard to the question whether the appeal should be heard by the High Court or by the District Judge, Lahore. and the parties agreed as under:‑ (1) The petitioner lkram Gardezi shall withdraw his petition and seek his remedy in terms of the order of the High Court dated 11‑1‑1986, made by Mr. Justice Saad Saood Jan. He shall withdraw his Revision Petition now pending in the High Court, Lahore and receive back the Memo of Appeal alongwith the documents and file the same before the District Judge Lahore who may be directed by this Hon'ble Court to dispose of the same by the 30th April 1987. (2) The petitioner and the respondent shall not raise any objection in respect of the jurisdiction of the District Judge to hear the appeal, as determined by the High Court on 11‑1‑1986. On this following order was passed by the Supreme Court:‑ "After some arguments both the learned counsel appearing for the parties have agreed that there is no need in the circumstances of this case to determine the question raised in the petition. They have further agreed, in writing on the procedure to be adopted for the disposal of this petition. The writing has been placed on the record. The prayer made therein is reasonable. Learned counsel for the petitioner accordingly withdraws this petition. It is disposed of as withdrawn in terms of what is stated in the writing submitted by both the learned counsel. According to the above agreement the appeal was to be heard by the Court of District Judge, Lahore, and not by any particular officer presiding over that Court. The only direction sought by the parties from the Supreme Court was with regard to decision of the appeal by the learned District Judge by 30th April 1987. The Supreme Court was pleased to dispose of the petition as withdrawn, in terms of the written agreement submitted by learned counsel for the parties., In the order of the Supreme Court also there is no indication to the effect that the appeal will be decided by any particular Judge. Admittedly, at the time when that order was passed Ch. (now Mr. Justice) Fazil Karim was the District Judge of Lahore. He has since been succeeded by Mr. Muhammad Amir Malik who is now seized of the appeal. Throughout the period for which Mr. Muhammad Amir Malik has been hearing the appeal as successor of Ch. (now Mr. Justice) Fa.zil Karim no grievance was ever voiced by the petitioner to the effect that Mr. Muhammad Amir Malik could not hear the appeal because at the time when the above order was made by the Supreme Court Ch. (now Mr. Justice) Fazil Karim was the District Judge of Lahore. There is thus no room for doubt that the Supreme Court did not require any particular Judge to decide the appeal. Following observations in the case of Kammala Seshagiri Rao. Relied upon by learned counsel for the respondent are, therefore, not attracted to the present case:‑ "Different considerations may arise if the order of remand on special grounds indicates a particular Judge to try a case or not to try it .. These observations are in the nature of an exception to the general rule enunciated in the said case, namely, that a case remanded by the High Court to a Court subordinate to the District Judge can be transferred by the District Judge to another subordinate Court. No authority to the contrary was cited by learned counsel for the respondent. Following the above general rule, therefore, I hold that the appeal filed before the District Judge, after passing. of the above order by the Supreme Court, can be transferred to another District Judge or to this Court if there are cogent reasons for so doing.

12. It is also noteworthy that at the time of passing of the above order it was not brought to the notice of the Supreme Court that the respondent would make an application for condonation of delay in filing the appeal by raising the plea that he had been pursuing remedies before other forums in good faith and with due diligence with the assistance of a senior counsel who is now on the Bench of this Court. If a disclosure in this regard had been made before the Supreme Court, the fate of the petition might have been different from the one which has been described a little earlier.

13. As for the provisions of Article 190 of the Constitution, I can never think of acting otherwise than as ordained by the august Supreme Court, the highest forum in the country. As indicated above, order of the Supreme Court, which is being pressed into‑service by learned counsel for the respondent, is based on the agreement of the parties to the effect that the respondent would file appeal before the District Judge, Lahore, and that none of the parties would object to his jurisdiction to hear the appeal. They also agreed to pray to the Supreme Court that it may direct the learned District Judge to decide the appeal by 30th April, 1987. This compromise was entered into by the parties in the context of the dispute as to ‑whether the appeal lay before the High Court or before the District Judge. There is no stipulation in the ‑agreement reached by them that the appeal to be taken before the District Judge would not be transferred from him in any case. There is also no direction by the Supreme Court in this regard. There can be a. number of eventualities in which the present District Judge. namely, Mr. Muhammad Anwar Malik or any of the parties would not like the appeal to be heard by him. If, in such an eventuality, the learned District Judge or a party moves this Court for transfer of the case from him, will the High Court be helpless in the matter I think not, because I am convinced that such a result was not intended by the parties or by the Supreme Court. It is strange that the respondent is invoking the provisions of Article 190 of the Constitution for the purpose of resisting this petition but he did not make use of these provisions when the appeal was not decided by 30th April 1987 by the learned District Judge in terms of the compromise which formed part of the order of the Supreme Court. There is no explanation with regard to his inaction in this behalf. Be that as it may, in my humble opinion, it was not intended by the Supreme Court that in no case the appeal will be transferred from the District Judge of Lahore to the District Judge of any Other district or to this Court and as such the transfer of the plea this 'Court would not offend against the provisions of Article 190 of the Constitution.

14. This brings me to clause (1) Article 25 of the Constitution which guarantees equality of citizens before law. The respondent's argument is that in case of transfer of the appeal to this Court, he would be deprived of his right of revision. Transfer of appeal from the Court of District Judge is sought under section 24 of the Code of Civil Procedure which is as much available to the respondent as to the petitioner or any other citizen of this country. Any one getting his case transferred from a subordinate Court to the High Court will face the same consequences as would follow in the event of acceptance of the instant petition. Provisions of section 24 of the Code of Civil Procedure were challenged before the High Court of Allahabad, in the aforementioned case of Sarjudei, on the ground that they were violative of Article 14 of the Indian Constitution, which is pari material with clause (1) of Article 25 of our Constitution. This contention, however did not find favour with the High Court of Allahabad. Learned counsel for the respondent did not cite any authority to the contrary. 1, therefore, hold that transfer of the appeal in question G to this Court would not be in contravention of the provisions of clause (1) of Article 25 of the Constitution.

15. It is amazing that the respondent who, as mentioned earlier, was, in the first substance, glamouring for hearing of the appeal by the High Court, is now insisting for its hearing by the District Judge. The somersault thus taken by him is just beyond my comprehension. If the petitioner's own effort to get the appeal heard and decided by this Court had succeeded he would have had no right of revision for which he is now worried. This, together with his failure to make grievance with regard to non‑disposal of the appeal by the learned District Judge before 30th April, 1987 in terms of the direction of the Supreme Court, lends support to the petitioner's plea that the respondent is not resisting this petition with clean hands.

16. As stated in the case of Khawaja Muhammad Saeed, cited by learned counsel for the petitioner, a suit pending before a Civil Judge was transferred to the erstwhile High Court of West Pakistan by the late Chief' Justice M.R.Kayani because Mr. Justice Shabbir Ahmed, a learned Judge of that High Court, was arrayed as a party thereto. No doubt, in this case, my learned brother Muhammad Arif, J. is not a party to the appeal sought to be transferred but, as noted earlier, his conduct as a counsel is likely to come under discussion. It would, therefore, look odd and also embarrassing for the learned District Judge to make any unpleasant comment on his conduct as such. In this view of the matter, it will be just and proper if the appeal is heard by this Court.

17. Keeping in view all the circumstances explained above, I accept this petition and transfer the respondent's appeal from the Court of District Judge, Lahore, to this Court. There shall be no order as to costs. M. B. A /R‑80/L Petition accepted.