SHAHZA DA SULTAN HUMAYUN vs NASIRUDDIN

' This is an application for transfer of Suit No, 1908/78 (Shahzada Sultan Ilamayun v. Nasiruddin) pending in the Court of XlVth Civil Judge at Karachi to this Court, with a further prayer that the same be tried alongwith Suit No, 332 of 1981 pending in this Court.

2. The application has been moved on the following grounds : ' That the applicant/plaintiff filed Suit No, 1908/78 against the respondent stating therein that he is the owner and occupant of house bearing No, 2/85, Roderick Street, Soldier Bazar, Karachi.

According to him on the West is situated House No, 84 which is claimed to be owned by the respondent. According to the applicant the respondent in the beginning of June, 1978, started demolition of his house on Plot No, 84 with a clear understanding and mutual consent that the wall of the Western side of the applicant's house, which according to him was common wall, shall be demolished by the respondent and that both of them may construct their own separate independent walls on their own respective plots.

' The applicant after demolition of the said wall collected material for construction of the wall but the respondent with malicious intentions and for illegally grabing a portion of the plaintiff's plot resisted the construction of the said wall on the Western side of the plot of plaintiff. Disputes having thus arisen between the parties and on the allegations mentioned above, amongst others, the applicant filed a suit, being Suit No, 1908, in the Court of Civil Judge at Karachi, for declaration and also for injunction to restrain the respondent from illegally occupying the land of the applicant and constructing a wall over the same.

3. In spite of application for injunction filed, it is alleged that the respondent illegally encroached upon the plot of the applicant to the extent of 81.27 square feet. Applicant in the circumstances filed another suit (Suit No, 332 of 1981), this time in the High Court on original side, based almost on the same facts as stated in Suit No, 1908 of 1918 pending in the Court of XIVth Civil Judge at Karachi but coupled with the additional plea that during the pendency of the suit in the Court of the Civil Judge, the respondent carried out the construction of the wall. The applicant in the suit filed in this Court has prayed for decree against the respondent directing him to demolish the alleged illegal construction over the plot of the applicant and to hand over 81.27 square feet of land of applicant/plaintiff's Plot No, 85 with mesne profits at the rate of Rs, 300 per month.

4. As the above two suits are pending in two different Courts, the applicant has now moved this application for transfer of the Suit No, 1908 of 1978 from the Court of Civil Judge, Karachi, to this Court. The plea urged in support of the application is that this is necessary to avoid conflicting decisions in the two suits in which the parties as well as the substantial questions of facts and law are common.

' The learned counsel for the respondent however contended that the transfer of the suit from the Court of the learned Civil Judge to the High Court would deprive the respondent from a right of first appeal to the Court of the learned District Judge from a decree, if any, passed against him. The learned counsel for the respondent did not dispute that the facts and law involved in the two suits, are common. It was however urged that the reliefs claimed in the two cases are different and that the two suits are pending in Courts of competent jurisdiction, and that transfer of case from the Court of Civil Judge was not justified.

5. I have considered the points raised by the learned counsel for the respondent and find that the plea that the transfer of the suit from the Court of Civil Judge would prejudice his client as it could deprive him of right of appeal to the District Judge in the first instance, cannot be accepted.

Reference may be made to the case of Liquidator Co-operative Bank Limited v. Muhammad Anwar

(I) where repelling similar contention, the learned Court held that the contention such as raised by the counsel for the respondent, was illusory and that in view of the general principle of the jurisprudence, the grievance of being deprived of one forum by the replacement for it of a better forum, was not justified.

It would be noted that the basic grievance in the two suits is one and the same and therefore in order to avoid likelihood of contradictory A decisions by two Courts it would be in the interest of justice that the suit pending in the Court of XlVth Civil Judge at Karachi be transferred to the High Court and thus the two suits be tried by the same Court.

' If any authority is needed reference be made to Masood Bari v. Abdul Aziz (2) and Tirath Ram v.

Harbhojan Singh (3).

6. For the reasons stated above I hereby direct that the Suit No, 1908 of 1978 (Shahzada Sultan Humayun v. Nasiruddin) pending in the Court of XlVth Civil Judge at Karachi be transferred from that Court to this Court and the said suit be tried alongwith Suit No, 332 of 1981 between the same parties pending in this Court.

(1) PLD 1972 Quetta 12 (2) PLD 1967 Kar. 55

(3) AIR 1933 Lah. 1033