SHARAF FARIDI Versus M. A. SHAHANI

The applicants in this case are the President, Vice‑President and Honorary General Secretary of the Karachi Bar Association and ask that a suit which they filed against the opponents in the Court of the 7th Civil Judge Ist Class, Karachi be transferred to this Court for trial.

2. It is claimed in the plaint that the opponents, who are not Advocates by profession, are in effect parartising the profession of law by acting, appearing and pleading on behalf of various parties before the Tribunals constituted under the Industrial Relations Ordinance. The facts are not, at any rate for the purpose of this application, in serious dispute except on a question of the territorial jurisdiction of the Court in which the suit has been instituted and really the main issue in the suit is whether in acting, as they are allegedly doing, the opponents are violating the provisions of section 22 of the Legal Practitioners and Bar Councils Act, Act XXXV of 1973, and the main, indeed the sole, ground upon which the transfer is sought is that the legal question involved in the suit is one of great general and public importance and it would, therefore, be just and proper if the suit is tried and decided by this Court.

3. Before I deal with the merits of the application, it would be convenient to consider the objections that the respondents have raised either to the maintainability of the application or the propriety of the conduct of the applicants in making it. The first of these objections is grounded upon an alleged lack of territorial jurisdiction in the Court of the Vth Civil Judge who, by reasons of an order of the District Judge, Karachi, entertains and disposes of suits which arise within the territorial limits of three police stations of Karachi, it being alleged that the defendants neither reside within such limits nor work for gain, that is, appear before the various tribunals within these limits. For the proposition that the High Court may, under section 24 of the Civil Procedure Code, transfer a case only if it is pending in a Court of competent jurisdiction, that is to say competent both territorially and as to the pecuniary value of the suit, counsel relied upon several cases of which I propose to make a reference to two. The first of these is reported as Faiz Muhammad v. Riaz Hussain (P L D 1957 Lah. 689), in which it was so held. Mr. Justice Ortcheson who decided that case in the course of an elaborate judgment has referred to many cases already decided on the question and has discussed in considerable detail the only case Narain Das Gopal v. Khuni Lal (A I R 1934 All. 569), which takes the contrary view and from which the learned Judge dissented. In stating his own view he observed:‑

"Sections 15 to 20 of the Code of Civil Procedure relate to the forum of suits, and when reference is made in section 24 to a suit pending in a Court, it is assumed that the provisions of these sections have been followed and in particular that the suit has been instituted in a Court having both pecuniary and territorial jurisdiction to try it. The reason why clause (b) of subsection (1) of section 24, C. P. C. merely requires that a suit should be pending in any Court subordinate to the High Court or the District Court, without specifically stating that Court should be competent to try or dispose of it is that the provisions of the Code of Civil Procedure are assumed to have been observed at the time of institution of the suit, the case being consequently duly pending at the time the application for transfer is made. With respect to the Court to which the case is to be transferred, on the other hand, it was clearly necessary to specify that it should be competent to try or dispose of the suit, since otherwise the transferring Court would be free, in the improbable event of its being so minded, to entrust it to a Court without jurisdiction."

4. I am in entire and respectful agreement with this view which has since been approved by the Supreme Court in Razia Shafi v. M. S. Malik (PLD1971SC247), which is of course binding on me. I do not, therefore, consider it necessary to refer to the other numerous cases on the question.

5. I cannot, however, agree that the Court of the Vth Civil Judge did not have territorial jurisdiction. It is true of course that that Court normally deals with cases arising in the limits of certain police stations as I have stated but this, in my view, is matter of distribution of business among B the various Civil Judges in Karachi rather than a question of territorial juris diction. The territorial jurisdiction of Civil Judges is governed by the West Pakistan Civil Courts Ordinance, Ordinance II of 1962, section 10 of which reads thus:‑

"10.‑‑‑(1) The local limits of the jurisdiction of a Civil Judge shall be such as the High Court may define.

(2) When the High Court posts a Civil Judge to a district, the local limits of the district shall in the absence of any direction to the con trary, be deemed to be the local limits of his jurisdiction "

Now in the present case the learned Civil Judge was posted to Karachi by a Notification of the High Court dated the 7th December 1973 and in that notification there is no further delimitation of his territorial jurisdiction. It will be seen that, in the absence of any direction to the contrary, in such a case by virtue of subsection (2) of section 10, the local limits of the jurisdiction of the Judge are the local limits of the district, which of course in this case is Karachi in parts of which admittedly the defendants/respondents reside and work for gain.

6. That the Civil Judge, in fact takes up cases arising only in a certain area is due to the power of the District Judge to distribute business under section 15 of the same Ordinance which reads thus:‑

"15. Notwithstanding anything contained in the Code of Civil Procedure, 1908, every District Judge may by written order direct that any civil business cognizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he thinks fit:

Provided that no direction issued under this section shall empower any Court to exercise any powers or deal with any business beyond the limits of its jurisdiction."

This section authorises the District Judge to distribute the business among such Courts "in such manner as he thinks fit". The District Judge could have adopted one of several conceivable ways of distributing the work: he could, for instance, have devised a system of rotation whereby all suits instituted could have been marked off by numbers to various Judges. The fact that he chose instead to delimit areas to effect the same distribution does not make it anytheless distribution. By no means can it be regarded as having specified the local limits of his jurisdiction and, indeed, the District Judge has no power to define jurisdiction at all. That power lies with this Court alone. While, therefore, agreeing with the respondents that a "transfer application will not be maintainable if the suit is pending in a Court which has no territorial jurisdiction, I nevertheless reject this objection because the Civil Judge in fact had jurisdiction in this case.

7. It was next argued that the present application is a mala fide one made for the purpose of avoiding the payment of court‑fee. The suit was instituted on the 18th March 1974 and, really before anything further transpired, the application for transfer was made upon the 22nd March. Respondents contend that if the questions involved in this suit are of general importance, then surely the plaintiffs who are themselves Advocates, must have been conscious of the fact when they filed the plaint and could not have suddenly in the course of the few days which intervened between the institution of the suit and the presentation of this application have woken up to the necessity or propriety of having the suit decided by this Court. This Court has an original Civil Jurisdiction and suits above a certain value can be presented to this Court and if, therefore, the plaintiffs had chosen to value their relief at a higher figure, they could have brought this suit in the High Court straightaway and there would have been no necessity for them to move this Court for a transfer. Admittedly it is open to the plaintiffs to value the suit at an arbitrary figure and the respondents claim that it is merely to avoid the payment of court‑fee that this manoeuvre was made and that the action of the plaintiffs/applicants is, therefore, mala fide.

8. In a sense the argument comes to this: the plaintiffs could have purchased the result which they now seek to achieve by means of this application and that they ought not to be permitted to do this. I am entirely unable to agree. There are of course a number of decided cases upon the question of the effect of under valuation of a suit or the non‑payment of the requisite court‑fee, but these, in my view, are entirely irrelevant to the question which is before me. It is not argued and cannot be argued that the suit as presented is undervalued or that it is instituted in a Court, the pecuniary limits of whose jurisdiction do not extend to the suit. The argument rather is that having chosen to value it at the figure that they have, they cannot now turn round and say that they want their suit decided in a Court to which they could themselves have come, had they only valued it at a higher figure. Now this situation can arise, in the entire Province of Sind, only in the District of Karachi, where the High Court has an original civil Jurisdiction. If such a suit had been filed in Hyderabad, for instance; the objection taken now obviously could not have been raised and I am quite unable to see why a litigant in Karachi cannot, therefore, move this Court to transfer the case if a similarly situated litigant in Hyderabad could have. If the law permits the plaintiffs to value the suit at the figure which they have put on it and also permits them to maintain an application in this Court for transfer, why should the Court Fees Act be so interpreted as to defeat these two rights?

9. In any case, it has been held authoritatively and often, court‑fee is a matter of revenue and an argument based upon it should not, I think, be permitted to be utilized in the fashion which the respondents are seeking to do. In the case of R. Subrao v. S. Vinkatrao (A I R 1918 P C 188), their Lordships of the Privy Council observed:‑

"The Court Fees Act was passed not to arm a litigant with a weapon o technicality against his opponent, but to secure revenue for the benefit of the State. This is evident from the character of the Act, and is brought out by section 12, which makes the decision of the First Court as to value final as between the parties, and enables a Court of appeal to correct any error as to this, only where the First Court decided to the detriment of the revenue.

The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interest of the State, but to obstruct the plaintiff: he does not contend that the Court wrongly decided to the detriment of the revenue but that it dealt with the case without jurisdiction."

10. I am, in any case, extremely dubious of the propriety of using the expression "mala fide" in this connection. An action is said to be taken mala fide, I think, when it is taken with an ulterior object. The action of the plaintiffs, which the defendants claim is mala fide, is the filing of the present transfer application. The object of that application is to secure a transfer and it avowedly is for that purpose. I am quite unable to see, therefore, how, in any view of the matter, the application itself can be said to be mala fide.

11. Quite recently their Lordships of the Supreme Court had occasion to consider the meaning of the expression in Federation of Pakistan v. Saeed Ahmed (PLD1974SC151). No doubt the Supreme Court was in that case concerned with the question as to when official acts could be said to be mala fide but, having stated that such acts must always be presumed, until the contrary is shown, to be regular, their Lordships go on to make observations which I think, are of more general applicability:‑

" `Mala fides' literally means 'in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action[ is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above."

11. I cannot see what collateral purpose the plaintiffs have in this case or how it can be said that their motive is to hurt somebody else. This objection of the respondents is, therefore, without force.

12. One of the two learned counsel who made the main addresses on behalf of the respondents in this case, Mr. Imdad Ali argued that the question of law involved was not a difficult one and, therefore, not of public or general importance. He went on to say that the mere fact that the question is a difficult one does not make the case a suitable one for transfer and in any case to do so would shake the confidence of the public in the subordinate judiciary. As an example of the confidence which the Legislature reposes in the subordinate Courts he cited the newly enacted Order XXVII‑A, rule 1 of the Civil Procedure Code where, in matters which involve Constitutional law, the lower Courts are authorised to call upon the Advocate- General.

13. I cannot agree at all with Mr. Agha in thinking that the expression "of general and public importance" is synonymous with the adjective "difficult". A question may be very simple indeed and yet have a general effect. On the other hand a question may be very complicated and yet may arise only in one individual case. In any event the expressions which I have put in quotation marks are not used in the statute and merely reproduce the argument of the applicants before me and also expressions used in some of the reported cases. There is no question of any lack of confidence in the Civil Judge or any aspersion on his ability to decide the question. The claim on behalf of the plaintiffs is that the matter is one of great importance and ought, therefore, to be decided as early as possible and as authoritatively as possible. Whether they have made out a case of that kind I shall presently examine but it does not seem to me that Mr. Agha's objection on this aspect of the case is well founded. The newly added rule in the Civil Procedure Code merely gives authority to the civil Court to ask that the Advocate. General appear before them: it does not for the first time authorise them to decide a question of Constitutional Law. Such questions and all other questions of law and fact which arise in a matter have to be decided by the Courts before whom they are, raised.

14. Mr. Fazale‑Ghani, the other learned Advocate who addressed the main arguments in the case, took up the position that under section 24 of the Civil Procedure Code I could not, on the application of a party, transfer a case except on such considerations as the convenience of the party or a lack of confidence in the trial Judge. I can see no warrant in the section itself for making any distinction between the powers of this Court upon an application by party or suo motu. Mr. Fazale‑Ghani concedes that I could, without any application from a party and, indeed, even without notice to a party, transfer this case and that, if I am of the opinion that the case involves a question of general importance, that would be a good ground for transfer. I am wholly unable to see, why if it is a good ground for so B acting suo motu, my power should be limited merely because I have been moved by a party. The converse in certain cases could possibly be true for a power may vest in a Court if the Court is moved by a party, as for example in the case of appeals. Where, however, the power may be exercised with or without such an application I can see no reason for holding that where an application has been made, the power would be narrower. If that were so, quite clearly I could just ignore the application and act suo motu if I thought that the case was a proper one for transfer.

15. It was finally objected that if the case was to be transferred to the High Court, the parties would lose a right of appeal. The right of appeal in this case, would be first to the District Judge and then by way of IInd appeal to this Court and, of course only with the leave of the Supreme Court, by an appeal to the Supreme Court itself. If I were to order a transfer, however, the Court which would act as a second appellate Court would be entertaining the matter straightaway and I do not think that parties should have any legitimate grievance on this score. In any event, in all cases where a transfer is ordered under section 24 to the High Court itself such a result would follow and if I were to accept the contention then in no case can a case be transferred to the High Court which is patently absurd.

16. On the merits of the matter before me the sole question really is: is the question whether in acting as they are alleged to have done, the defendants are not violating the provisions of the Legal Practitioners and Bar Councils Act a question of general importance. Now clearly the question as to what persons, if any, are entitled to appear before the tribunals constituted under the Industrial Relations Ordinance is not only one of importance but which affects a very large number of persons. The plaintiff's no doubt are affected because, they are professional legal practitioners but also affected are the large number of employers and employees whose cases are adjudicated upon by these tribunals. Mr. Agha did indeed invite me to hold that it was the clear intention underlying the Industrial Relations Ordinance to exclude Advocates from appearing. Asking me to hold he implied that there would be then no necessity of granting this application, but this, I think, it is neither necessary nor proper for me to do so That is not the question raised before me. Nor is it even the question in the Civil Suit. All that I am required to see is whether the main question to be answered in the suit is one of general importance.

17. I have thus come to the conclusion that it would be just and proper to direct the transfer of this suit to this Court for trial and I accordingly so order. In view of the peculiar circumstances of the case, however, I make no order as to costs.

K. B. A. Case transferred.