2012 PLP 213 (MLD)

SYED HASAN AZHAR RIZVI, J.

This is a Civil Transfer Application filed by the applicant, under section 24, C.P.C., seeking transfer of Suit No.1052 of 2009, pending in the Court of VIth Senior Civil Judge, Karachi (South), to this Court as the same be tried with along with Suit No.1455 of 2010, which is pending before this Court.

2. Briefly stated facts of the case are that the applicant and respondent No.1 was entered into a sale agreement dated 14-4-2006 in respect of Plot No.11-C, measuring 1800 Sq. Feet, 12th Commercial Street, Phase-II, Extension, DHA, Karachi, in total sale consideration of Rs.63,00,000, out of which Rs.42,00,000 was paid by the applicant to the respondent No.1 in advance as part payment through two cheques leaving a balance amount of Rs.21,00,

000. The respondent No.1 filed Suit No.1052 of 2009 in the Court of VI Senior Civil Judge Karachi (South) for recovery of Rs.21,00,000 with damages of Rs.8,00,000 and removal of illegal construction in the month of September, 2009, which is still pending at the stage of filing of affidavit-in-evidence. The applicant also filed Suit No.1455 of 2010 in this Court against the respondent for specific performance and injunction, wherein the respondent has filed her written statement.

3. I have heard the arguments advanced by the learned counsel for the parties and perused the material available on record.

4. Mr. Abdul Sattar Pirzada, learned counsel for the applicant urged that both the suits are in respect of same property and between the same parties and still no evidence has been recorded in either suit. He submits that it would be appropriate to decide both the suits at one and same time in order to avoid conflicting decisions. In support of his submissions, learned counsel has placed reliance on the cases of MST. ANSAR JEHAN JILLANI AND ANOTHER v. DR. MEHMOOD ZULQARNAIN JILLANI (2001 MLD 1024) and MESSRS FIRST WOMEN BANK LIMITED v. REGISTRAR, HIGH COURT OF SINDH AND OTHERS (2004 SCMR 108).

5. On the other hand, Mr. Ahmed Pirzada learned counsel for the respondent No.1 has vehemently opposed the instant transfer application and has argued that both the cases are at different stages. He urged that in Suit No.1052 of 2009 written statement has been filed. Issues were framed and now the matter is at the stage of recording of evidence, whereas in Suit No.1455 of 2010 is at the preliminary stage. He also made reference to dairy-sheet dated 7-5-2011, wherein it was recorded that advocate for the defendant No.1 has received copy of affidavit-in-evidence filed by the plaintiff. He, therefore, urged that transfer of the suit from lower Court to this Court would deprive the respondent from a right to First Appeal, which lies before the Court of District Judge. He has submitted that the authorities cited by the learned counsel for the applicant have no bearing on the facts of this case.

6. I have given due consideration to the above contentions and find that the transfer of the suit from the Court of VI Senior Civil Judge Karachi (South) to this Court would be just and proper, as the parties and property involved in both the suits are one and the same. Moreover, no prejudice would be caused to either party if the transfer application is allowed, as still no evidence is recorded in the matter and only copy of affidavit-in-evidence has been supplied to the learned counsel for the defendant No.

1. Keeping in view the convenience of both the parties, it would be just and proper to allow the transfer of Suit No.1052 of 2009 from VI Court of Senior Civil Judge Karachi (South) to this Court, so that the conflict in the decisions of two suits would also be avoided and grievance of the parties be looked after and decided by one Court.

7. The Transfer application is allowed, as prayed for. M.H./H-28/K Application allowed.