2001 ML D 1024 (PLP)

Raghib Baqi for Respondent. Date of hearing: 18th March, .1998. P;, this application, applicants seek transfer of Civil Suit No.651 of 1994 from the Court of VIIth Senior Civil Judge, Karachi (East) and its trial alongwith Suit No.376 of 1994 pending in this Court. 2: Briefly the facts of this application are that the dispute arose in between applicants and respondent the parents and son over the ownership of Bungalow No. 16‑B, Block‑6, P.E.C.H.S., Karachi. Applicant Mst. Ansar Jehan Jillani filed Civil Suit No.651 of 1994 against the respondent with regard to possession, mesne profits and permanent injunction which is pending adjudication before the learned VIIth Senior Civil Judge, Karachi (East). The respondent Dr. Mehmood Zulqamain in response filed Suit No.376 of 1994 with regard to the same property for declaration, injunction and partition before this Court which is also pending adjudication.

3. Mr. Shehanshah Hussain, counsel for applicants urged the transfer with the contentions that the pleadings of.the parties in both the suits are same and the substantial questions of fact and law are common. According to him, it would be appropriate to decide both the suits at one and same time in order to avoid conflicting decisions. In support he relied upon 1984 CLC 3090; PLD 1967 Karachi 55 and 1989 SCMR 818.

4. Mr. Raghib Baqi, counsel for the respondent argued that the transfer of the suit from the lower Court to this Court would deprive the respondent from a right of First Appeal which lies before the Court of District Judge. He, however, did not dispute that both the suits relate to the same property and the relief claimed in both is much or less the same.

5. I have given anxious thoughts to the above contentions and find that the transfer of suit from the Court of learned VIIth Senior Civil Judge, Karachi (East) would in no way prejudice the case of the respondent as he had filed the suit in retaliation with regard to the same property about which applicants had filed earlier suit. In the circumstances, it would be appropriate if the grievance of the parties be looked after and decided by one Court. Moreover, the conflict in the decisions of two suits would also be avoided. This Court in the case of Shahzada Sultan Humayun v. Nasiruddin, 1984 CLC 3090 has dealt with the same subject‑matter and transferred the suit from the Senior Civil Judge to the High Court. In another referred case of Masood Bari and another v. Abdul Aziz PLD 1967 Karachi 55, appeal was withdrawn from the District Court and was transferred to the High Court to be heard with revision application as it was felt that basic grievance in both was one and same. Hon'ble Supreme Court in the case of Usman Ghafoor and 2 others v. Messrs Attock Textile Mills Ltd., 1989 SCMR 818 refused leave to appeal against the order of Lahore High Court whereby the suit was transferred keeping in view the convenience of both the parties:

6. For the foregoing reasons, Suit No.651 of 1994 pending in the Court of learned VIIth Senior Judge, Karachi (East is transferred from that Court to this Court and be tried alongwith Suit No.376 of 1994 filed by the respondent, pending in this Court. This application stands disposed of. Q.M.H./M.A.K./A‑77/K ??????????????????????????????????????????????????????????????????? Application allowed.