AHMEDI KHATOON Versus MUHAMMAD AFZAL KHAN

1. By this Civil Transfer Application under sections 24 and 151 read with Article 203 of the Constitution of Islamic Republic of Pakistan, the petitioner is seeking transfer of Civil Suit No. 3014/85 (fdst. Ghulam Fatima v. Malik Afzal Khan and Ahmed Khatoon) pending in the. Court of Civil Judge No.5, Karachi, to this Court for hearing and disposal. In addition to the prayer of transfer of the case suo motu jurisdiction of this Court is also invoked for taking action against the respondent as may be found necessary and expedient in the circumstances of the case. The grounds on which the petitioner has sought transfer of the pending civil suit to this Court briefly are:

(i) that the petitioner in spite of having obtained a decree dated 20‑12‑1967 for s~ ecific performance of an agreement of sale in Suit No‑89 of 143 against respondent No.l has not been able to get the fruits of the decree on account of pendency of the above suit,

(ii) that the question involved in the suit is of general public importance and

(iii) that the manner in which the trial Court has granted ad‑interim injunction in favour of the respondent No.2 has given rise to serious apprehensions in the mind of petitioner that the trial Court has no respect for law and that the petitioner will not be able to get justice from the lower Court.

2. In order to appreciate the contentions of the learned counsel for the petitioners it is necessary to state here the background of the litigation.

3. The petitioner instituted Suit No.89 of 1963 against respondent No.l for specific performance of an agreement of sale in respect of a residential plot of land bearing No.30 Row,

2. Sub‑block 'A' Block 2, Nazimabad, Karachi, admeasuring 216 sq.yds. The suit was decided in favour of petitioner on contest and a decree dated 20‑12‑1967 for specific performance of the agreement of sale or the alternative damages in the sum of Rs.10,000 was passed in the his favour. Respondent No.1 appealed against the above judgment and decree which was heard by IVth Additional District Judge, Karachi. The learned Judge by his judgment dated 3‑5‑1971 maintained the decree for specific performance of the contract against the respondent No.l but struck off the alternate decree for damages in the sum of Rs.10,000. The above decree of 1st Appellate Court was maintained in the 2nd Appeal preferred by respondent No.l against the decree of 2nd Appellate Court a petition for special leave to appeal filed by respondent No.l before the Supreme Court also failed. After conclusion of first round of litigation the petitioner filed Execution No.38 of 1971 which was dismissed on 26‑4‑1977. Thereafter, another Execution No.ll/77 was filed by the petitioner on 31‑5‑1977 which was resisted by respondent No.l but ultimately it was allowed by the Court on 21‑1‑1982. The respondent No.l filed a Misc. Appeal No. 50 of 1982 against the order of executing Court which was dismissed on 8‑1‑1985. Against the order in First Appeal the respondent filed Civil Revision No.39 of 1985 which was dismissed by this Court on 21‑4‑1985. The matter was once again agitated by respondent No.l before the Supreme Court in Civil Petition for Special Leave to Appeal No. K‑319 of 1985, but the same was dismissed on 11‑12‑1985. After the conclusion of above two rounds of litigations between the parties, respondent No. 2 instituted Suit No. 3014/85 before the Court of 6th Civil Judge (West) Karachi seeking a declaration that respondent No. 2 is the real owner of the property which was subject‑matter of the above litigation and that respondent No.l is only a Banamidar. Alongwith the plaint respondent No.2 filed an application under Order XXXIX, Rules 1 and 2 C.P.C. claiming interim injunction against the petitioner during the pendency of the suit from dispossessing her from the suit property. The learned 6th Civil Judge, entertained the above suit and ordered issuance of notice of application under Order XXXIX, Rules 1 and 2 C . P . C . to petitioner with an ad interim order for maintenance of status quo until the next date of hearing. It appears that on service of above notice the petitioner appeared in the suit and opposed the application for grant of temporary injunction by filing counter‑affidavit and written statement in the suit. The petitioner also filed an application for cross‑examination of respondent No.2 who had filed her affidavit in support of the application under Order XXXIX, Rules 1 and 2, C.P.C. Learned VIth Civil Judge grant!! the prayer of petitioner for cross‑examination of respondent No.2 arid ordered her to appear in Court for that purposes. The record placed before me shows that the respondent was subjected to lengthy cross‑examination by the petitioner's counsel on two dates of hearing. However, during the course of cross‑‑examination of respondent No.2 the Court observed that some of the questions asked by the learned counsel for the petitioner were not relevant and the counsel was accordingly asked to avoid irrelevant question It appears that the counsel for the petitioner felt aggrieved by the remarks of the Court and filed application tinder section 151, C.P.C. As a result of above incident the learned Presiding Officer of Court No.6 made a reference to the District Judge for transfer of Suit No.3014 of 1985 from his file to the file of some other Civil Judge. The learned District Judge acting on the above reference transferred the above suit to the file of Civil Judge No. 5 where presently the suit is pending for hearing of interim application and completion of cross‑examination of respondent No.2. It may be mentioned here that before transfer of Suit No.3014/85 from the file of Court No.6 to the file of Court No.5 by the District Judge, Karachi, the petitioner presented the present transfer application in this Court on 28‑5‑1986. It is not disputed by the learned counsel for the petitioner that after transfer of the suit to the file of Court No.5 no further proceedings had taken place on account of pendency of the above transfer application and hearing of the application under Order XXXIX, Rules 1 and 2, C.P.C. was adjourned from time to time at the instance of petitioner.

4. For the above‑stated facts it is quite clear that the grievance if any, the petitioner had against the Presiding Officer of Court No.6, stands satisfied by virtue of transfer of the suit to the file of Civil Judge No.5, by the learned District Judge, Karachi. It is also quite clear that no proceedings after the transfer of the case to the A file of Civil Judge No.5 has taken place on account of the attitude o. the petitioner who is insisting that until his application for transfer of suit to this Court is decided she will not proceed with the case. Mr. Ali Nazar, the learned counsel for the petitioner contends that on account of the fact that on earlier two occasions the matter was taken up to the level of Supreme Court and the decisions were pronounced in favour of the petitioner the matter could not be taken up again by the learned Civil Judge. It is also contended by the learned counsel that the decisions given in the previous litigation between the petitioner and the respondent No.l upto the level of Supreme Court is binding on respondent No.2 even if it is held that she is the real and beneficial owner of the property and respondent No. l was only Banamidar in view of the decision in the cases of Gur Narayan v. Sheolal Singh (I L R 46 Cal. 566) and Mst. Amanat v. Mahboob Hussain (P L D 1959 Kar. 362). In this background it is contended by the learned counsel that neither the suit nor the application for grant of temporary injunction is maintainable before the trial Court. It is also contended by the learned counsel hat in spite of above clear position in law the learned trial Court anted status quo order on the interim application of respondent No.2 in the suit which has given rise to serious apprehension in the mind of the petitioner that she will not be able to get justice at the hands of the trial Court in the above litigation. The above contentions raised by the learned counsel for the petitioner relate to the merit of claim in the suit instituted by respondent No.2 and has no relevance for transfer of the suit to this Court. The petitioner is at liberty‑ to press these submissions before the trial Court where the application for grant of temporary injunction is pending and I am confident that the learned Judge will, deal with these submissions of learned counsel strictly in accordance with law. It is also urged by the learned counsel for the petitioner that whose questions raised in a suit filed before the lower Court are of general nature and of public importance, such case more appropriately should be tried and disposed of by a superior Court. In this connection the learned counsel referred to the cases of Sharaf Faridi and 2 others v. M.A. Shahani and 16 others (P L D 1975 Kar. 59), Mohammad Nawaz v. Ghulam Kadir and 3 others (PLD 1973 SC 327), Mohammad Siddiq v. Syed Ali Shah and others (PLD 1976 Lah. 293), and Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another (P L D 1975 SC 678). After hearing the learned counsel for the petitioner and the learned counsel for the respondent. No.2 at length and after going through the above‑cited cases I am of . the view that there is no justification for transfer of Suit No.3014 of 1985 pending before the Court of Vth Civil Judge to this Court. As earlier pointed out that the various allegations made in the transfer application against the Presiding Officer of Court No.6 now stand removed /satisfied as a result of transfer of that suit from the file of Court No. 5 to the Court of Vth Civil Judge by the learned District Judg e, Karachi. It is quite clear the record placed before me that after transfer to suit to the file of Vth Civil Judge, at the learned counsel for the petitioner did not proceed with the application under Order XXXIX, Rules 1 and 2 on the ground that his transfer application is pending before this Court, It may be mentioned here that this was hardly a ground for not proceeding with the: case before the trial Court but in spite of that the trial Court accommodated the petitioner and adjourned the hearing of injunction application from time to time at the request of learned counsel for the petitioner. It is, therefore, quite obvious that the delay in disposal of injunction application is solely for the reasons attributable to petitioner and his counsel. It is also quite clear that the delay in hearing and disposal of interim application was also occasioned on account of filing of application for cross‑examination of respondent No.2 by the petitioner and then resorting to lengthy cross‑examination. The petitioner, therefore, has no genuine grievance in this regard. The other contention of the learned counsel is that Suit No.3014 of 1985 filed by respondent No.2 raises question of general and public importance and, therefore, it should be transferred and tried by this Court in view of the above‑cited decisions. I ‑ have seen the plaint in Suit No. 3014 of 1985 filed by respondent No.2 and failed to understand as to how the controversy raised there is of general and public importance. The controversy raised in the suit filed by respondent No.2 is strictly between the parties to the suit and has no effect on the right of any other person, much less the public at large or any particular section of the public. In this view of the matter the principles laid down in the above‑cited "citation" for transfer of cases instituted before the lower Courts to superior Courts has no application in the present case.

5. The transfer application is accordingly dismissed but there will be no order as to cost.

6. S.Q./A‑176/K Application dismissed.