IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Civil Transfer Appln. No. S- 01 of 2023.
Date of hearing
Order with signature of Judge
1. For orders on office objections.
2. For hearing of C.M.A. No.126/2023 (Stay Application).
3. For hearing of main case.
Mr. Munawar Alam Khan Advocate for applicant/ defendant.
Mr. Abdul Rehman A. Bhutto, Advocate for respondent No.1.
Mr. Abdul Hamid Bhurgri, Additional Advocate General.
Shamsuddin Abbasi, J: Through the instant application, applicant Khan Muhammad Brohi is seeking transfer of F.C. Suit No.22/2022 (Re; Town Committee Kashmore v. Khan Muhammad and others) from the file of learned Senior Civil Judge, Kashmore to any other Court of competent jurisdiction within the district Kashmore @ Kandhkot.
2. The brief facts of the case are that the plaintiff/ respondent No.1 (Town Committee Kashmore) through its Administrator filed the aforesaid suit for declaration, possession and permanent against the respondents/ defendants in the Court of Senior Civil Judge, Kashmore, which was brought on record on 03.03.2022. It was averred in the plaint that the applicant/ defendant Khan Muhammad is retired Sub-Inspector and he has illegally and unlawfully occupied the property of T.M.A Kashmore without any title and ownership documents and he has started construction work on it. However, the defendant denied such allegation in his written statement and claimed title documents. The issues were framed and witness Abdul Waheed was examined on 10.01.2023.
3. It is the case of the applicant/ defendant that he has lost faith in the learned presiding officer of trial Court; as such he filed a transfer application before the learned District Judge, Kashmore for transfer of the suit to any other Court within the district. The learned District Judge after hearing the parties dismissed the said transfer application vide Order dated 09.02.2023.
4. The contention of the learned counsel for the applicant is that the applicant has lost faith in the trial Judge due to his behavior, which he has described by contending that on the very first date of institution of the suit, the stay was granted in favor of the plaintiff; that the suit was not maintainable being barred by law and that the learned Presiding Officer of the trial Court did not consider the applications filed by the applicant/ defendant; even he did not brought the same on the record; that suit was filed in 2022, whereas deposition recorded by learned trial Court of witness Abdul Waheed is dated 10th January, 2021. Learned counsel has produced second copy of the same deposition, which according to him reflects that Presiding Officer has signed this deposition on 10th January, 2023, which proves malafides on the part of Presiding Officer.
5. Conversely, learned Addl. A.G. as well as Counsel for the respondent No.1/ plaintiff denied all the allegations leveled against the learned presiding officer and submitted that the fault of the learned presiding officer is that he is trying to dispose of the aforesaid suit as early as possible in accordance with law. Learned counsel for respondent No.1 further added that, the suit was filed in 2022, and learned trial Court examined witness Abdul Waheed; however his cross-examination was reserved on the application filed by the applicant/ defendant and due to non-examination and non appearance the learned trial Court closed the side of the defendant and such order was challenged by him before learned District Judge, Kashmore @ Kandhkot in Civil Revision No.05/2023, which was disposed of vide order dated 15.02.2023, with observations and directions to the learned trial Court to record evidence of applicant (defendant No.1 in the suit) as per statement submitted in writing by his advocate in revision application, within fifteen days from the date of receipt of order. Per learned counsel, this order was passed by learned District Judge by consent of both the parties. He further contended that in terms of aforesaid order of District Judge the applicant/ defendant was provided an opportunity for cross-examination of the witnesses but he failed to cross-examine the witness and moved application for transfer of the main suit on vague grounds, which according him was rightly dismissed by learned District Judge. He further added that in transfer application of any civil suit, the merits of the case cannot be considered. Lastly, he prayed for dismissal of application in hand.
6. I have heard the arguments advanced by learned counsel for the respective parties and have gone through the relevant record.
7. In the instant transfer application, the grounds agitated by learned counsel for the applicant are to the effect that on very first date of institution of the suit stay was granted in favor of the plaintiff and that the suit was not maintainable being barred by law and that the learned Presiding Officer of the trial Court did not consider the applications filed by the applicant/ defendant; even he did not brought the same on the record. These grounds are the main grounds, for which the applicant/ defendant has lost faith on the learned presiding officer of trial Court, therefore, he filed transfer application. In this context, suffice it to say that, grant of interim relief/ stay in favor of any party and entertaining and or refusing any interlocutory application is a question, to be dealt in accordance with law and such orders are appealable before next forum, but these cannot be treated as grounds for losing faith on Presiding Officer of the Court. These grounds do not appear to be logical and rational in any way and do not appeal to a prudent mind. On the contrary, it appears that the applicant/ defendant has been adopting delaying tactics and creating hurdles in the final disposal of the suit on merits.
8. It is well settled law that vague and unfounded allegations against the Presiding Officer of the trial Court cannot be made basis for transfer of the case. If the cases are transferred on the basis of vague allegations against Presiding Judges, it would certainly lower the image, dignity and honor of the judiciary. I am of the considered view that, on the basis of such type of absurd and irrational allegations, the transfer of suit would amount to satisfy some wicked wishes and whims of the applicant.
9. For the foregoing reasons, the instant transfer application being devoid of merits is hereby dismissed. However, the applicant/ defendant is provided an opportunity of cross-examination to witness Abdul Waheed and any other witness. The trial Court is directed to pace up the trial of the case and decide the same within a period of preferably three (03) months after receipt of this order. No unnecessary adjournment should be granted to either party on any flimsy ground.