2022 PLP 733 (SCMR)

UMAR ATA BANDIAL, J.

The question arising for our determination in this application for transfer of execution proceedings under a decree passed by the Family Court, Rawalpindi to the Family Court at Islamabad is whether such a transfer can be ordered under the provision of section 25-A(2-B) of the West Pakistan Family Courts Act, 1964 ("the Act"). For facility of reference the said provision is reproduced below: "25-A. Transfer of cases. Notwithstanding anything contained in any law the High Court may, either on the application of any party or of its own accord, by an order in writing-- . . . (2-A)... (2-B). 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 Supreme Court may at any stage transfer any suit, appeal or other proceedings under this Act pending before a Court in one Province to a Court in another Province, competent to try or dispose of the same? Under the aforesaid subsection (2-B), this Court may order the transfer of proceedings pending before a Court in one Province to a Court in another Province competent to try or dispose of the same. In the present case, the transfer is requested from the competent Court in the Province of Punjab to the competent Court in the Islamabad Capital Territory ("ICT"). As such the prayer is not covered by the express terms of subsection (2-B) ibid.

2. Be that as it may, it is apparent from section 25-A(2-B) that all parties before a Court in proceedings under the Act have a remedy to seek the transfer of such proceedings to a competent Court in another province on the ground of, inter alia, expeditious disposal and convenience of the parties, particularly females and minor children. This is the law laid down in respect of transfers made under the afore-noted provision. In the present case, however, the said statutory remedy is not available to litigants seeking transfer of their proceedings to and from the ICT. There is no ground to justify the denial of this relief to litigants in Islamabad, especially when litigants in other parts of the country arc entitled to it. Therefore, it is our considered view that in such circumstances the Court can resort to its extraordinary jurisdiction under Article 187 of the Constitution to provide for the transfer of proceedings. For ease of reference, the said provision is reproduced below: "

187. Issue and Execution of Processes of Supreme Court. Subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document." (emphasis supplied) The ambit of this Court's power to do complete justice in matters pending before it was discussed in detail in the case of Dossani Travels Pvt. Ltd. v. Messrs Travel Shop (Pvt.) Ltd. (PLD 2014 SC 1). The relevant portion from this judgment is produced below: "41: While seized of petitions under Article 199 of the Constitution, the High Courts at times are faced with prayers to pass order and Provide relief for "doing complete justice". But such powers in constitutional jurisdiction are vested in the Supreme Court under Article 187 of the Constitution. These powers are distinct both in scope and the manner of their exercise. The Apex Courts in most of the democratic countries enjoy such powers. The powers of this Court to pass any order or give any direction "for doing complete justice" are similar to those which the Supreme Court of India enjoys under Article 142 of the Constitution of India. 42: In both the above quoted provisions, the paramount consideration and the constitutional intent is common i.e. "for doing complete justice". These powers being inherent are complementary to those which are specifically conferred on the Court by the Constitutions of these two countries. These powers remain undefined so that the Court can cater to any situation and could even mould the relief... The rationale appears to be that in situations which cannot be resolved by existing provisions of law and warrant an intervention by the Court, it may pass an order to ensure "complete justice". This can also be used where the Court finds a gap in legislation and a solution is required till the Legislature acts and covers the field." (emphasis supplied) A perusal of the above quoted passages makes it clear that the power of this Court to do complete justice has intentionally been left undefined to ensure that it can cater to any and all situations where the law as it exists leads to injustice. Such power can in fact even be used, as has been recognised in the Dossani Travels case (supra), to cover up gaps in the legislation. In the present case, we are also faced with a similar problem in that section 25-A(2-B) of the Act does not provide for the transfer of cases from the Courts in ICT to the Courts of another Province and vice versa. Therefore, to fill in the said lacuna in the Act, this Court has power under Article 187 of the Constitution to do complete justice by transferring proceedings to and from the ICT in deserving cases.

3. In so far as the present case is concerned, none has appeared for the respondents. In view of the fact that the matter in issue relates to the execution of a decree passed in favour of the petitioner who is also the ex-wife of the respondent, the execution proceedings, in order to facilitate expeditious disposal, are transferred from the Family Court, Rawalpindi to the District Judge, Islamabad who shall assign the matter to the competent Family Court at Islamabad.

4. This C.M.A. is accordingly disposed of in the above terms. MWA/R-2/SC Order accordingly.