2001 PLP 309 (YLR)

On the other hand, Mr. Abbas Pishori, learned Counsel for the respondent has placed before me a Circular of this Court wherein bulk of cases i.e. serial No. 1 to serial No. 107 suits having been transferred to the District Court Karachi, South. In this respect the learned counsel for the respondent has referred section 24, C.P.C. with regard to General Power of Transfer and Withdrawal, which is reproduced as follows:

24. General Power of transfer and withdrawal.

(l) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage. (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or disposal of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn. (2) where any suit or proceeding has been transferred or withdrawn under subsection (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn. (3) For the purpose of this section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court. In support of his contention, Mr. Abbas Ali Pishori, learned counsel for the respondent has placed reliance on 1993 CLC 3140; PLD 1982 SC (AJ&K) 62 and PLD 1986 Lah.

148. In a case of Muhammad Akbar v. Faizah Begum (PLD 1982 SC (AJ&K) 62, the Hon'ble Supreme Court of Jammu and Kashmir has held that "Appeal to Supreme Court

Estoppel

Argument abandoned by appellant before District Court and High Court

Rule of equity and good conscience prevents appellant to agitate such argument before Supreme Court" Held, appellant cannot be allowed to turn a volt face at late stage. He has further cited Ordinance VII of 1991, section VII of Original Jurisdiction of the Court of District Judge. However, Mr. Abbas Pishori, learned counsel for the respondent has conceded that the suit for recovery for an amount of Rs.2,64,925 is triable by Senior Civil Judge. I have heard Mr. Akhlaq Ahmed Siddiqui, learned counsel for the appellant, Mr. Abbas Pishori, learned counsel for the respondent and have gone through the material available on record and the authorities cited by them. Admittedly in Circular issued by this Court Suits from serial Nos. I to 107 (a bulk of Suits) have been transferred to the District Court Karachi South, but nowhere in the said Circular it is mentioned that these suits will be tried by District Judges. Admittedly the point of jurisdiction has not been raised by the learned counsel for the appellant before the learned VII-Additional District Judge Karachi, South and I am being fortified by the cases of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly N.W.F.P. (PLD 1995 SC 66) and Board of Intermediate and Secondary Education Lahore through Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 SC 263 265q); Learned counsel for the respondent has also conceded before this Court that Suit for recovery for an amount of Rs.2,64,925 is triable by Senior Civil Judges. The laws cited by the learned counsel for the respondent are distinguishable from the facts of the present case and is of no help to him; Circular issued by this Court nowhere mentions that all the Suits are to be triable by the District Judges. In view of the above discussion, I am of the considered view that it was the duty of the learned VII-Additional District Judge, Karachi, South to point out that such Suits are triable by Senior Civil Judges and he could have made reference to the District Judge, South in this regard. I remand the 1st Appeal No.77 of 1997 to the Court of VII-Additional District Judge, South Karachi with directions to determine the point of jurisdiction in the wake of the amount of Rs.2,64,925 and also to consider that whether the Suits for recovery within Rs.2,64,925 are triable by District Judges or by Senior Civil Judges and also to look into the Circular issued by this Court -wherein bulk of Suits have been transferred to District Court, Karachi South and if learned VII-Additional District Judges, Karachi, South comes to the conclusion that the Suit for recovery of an amount of Rs.2,64,925 is triable by Senior Civil Judge, he is directed to send the case file to the concerned Senior Civil Judge, Karachi, South, having the jurisdiction over the matter and to dispose of the case in accordance with law. Q.M.H./M.A.K./P-25/K Order accordingly