ZAFAR IQBAL vs MANZOOR HUSSAIN

ORDER

The petition is moved against the order of learned District Judge, Mirpur, passed on July 24, 1993, whereby an application for transfer of the case from the Court of Additional Sub-Judge, Mirpur was accepted.

2. Zafar lqbal, plaintiff-petitioner instituted a suit for declaration against Manzoor Hussain, in respect of land measuring 1 Kanal 6 Marlas, situate in village Abdupur, Tehsil Mirpur, on April 10, 1993. Process was issued to the defendant. Written statement was presented on June 13 and the case was adjourned for framing of issues, to July 20. Meanwhile, on June 26, an application for transfer of the case, was moved before the District Judge. The transfer of the case was desired on the ground as the relations between the Counsel of the defendant-applicant and the Presiding Officer were not good, as such the defendant-applicant apprehended injustice. Parawise report was sent for. In the light of the report and the allegations made in the application, the case was transferred to the file of the Sub-Judge, Mirpur on July 24, 1993. This order is assailed in the present petition.

3. It is contended by the learned Counsel for the petitioner that mere unhappy relations between the learned Counsel and the learned Judge is not a good ground for transfer of the case. No bias against the learned Judge was established, as such, the impugned order was not maintainable.

Reference was made to (PLD 1971 Lahore 517) and (AIR 1926 Madras 359). Mr. M. Y. Arvi, the learned Counsel for the opposite party controverted the aforesaid points and argued that the relationship between the Counsel and the Judge were extremely bad. The Presiding Officer had already moved for prosecution of the Counsel for contempt. In this view of the matter, the party apprehended that mere his prosecution of the case was the cause of prejudice to the respondent.

4. The authority to transfer a case from the file of subordinate Court has been conferred under section 24, C.P.C.. Among others, it is deemed expedient to transfer the case whenever it is noticed or apprehended that the attitude and conduct of the Presiding Officer was prejudicial. In order to sustain the objection of bias against the Judge, it was warranted that some act or expression of Judge must be available or visible on record. Mere suspicion or artificial apprehension was not sufficient to seek transfer of the case.

5. In Rahim Bakhsh's case (PLD 1971 Lahore 517), the transfer of the case was sought on account of initiation of contempt proceedings against the Counsel of the party. The learned Judge examined all the precedents on the point and arrived at the conclusion that mere initiation of contempt proceedings against the Counsel of a party was not sufficient for transfer of the case. An identical view was held in AIR 1926 Madras 359.

6. In the present case, in support of the allegation, reference was made to the notice issued to the learned Additional Sub-Judge, by the Chief Justice Shariat Court. It appears that the notice was issued on account of complaint made by the Counsel against the Additional Sub-Judge. No record of such order is available on the file of the Court of the learned Judge of this Court, so as to believe that the contempt notice was issued to the learned Judge. The order of the learned Chief Justice Shariat Court, recorded in Abid Hussain's case decided on September 13, 1993, reflects a different position. That was also a case of transfer of case from the file of Additional Tehsil Criminal Court.

The transfer was sought on account of strained relations between the Counsel and the Member of the Additional Tehsil Criminal Court. The contention was not sustained and the application for transfer was dismissed.

7. In the present case, in order to seek transfer, it was enjoined upon the party to place some tangible evidence on record in support of the allegation. bald statement containing the allegation was not sufficient to allow the transfer. The learned District Judge was not right to transfer the case on such ground. The order is, therefore, set aside and the petition is allowed. However, it is observed that whenever an action or expression of the Presiding Officer in the subordinate Court, leading to apprehension of injustice, is available, the petitioner shall be free to seek the relief in the shape of transfer of the case in future.