IN THE HIGH COURT OF SINDH

CIRCUIT COURT LARKANA

 

Civil Transfer Appln. No. S- 03 of 2024.

 

Applicant                                :           Muhammad Tasleem Arain, through  

Mr. Prem Chand R. Sawlani, Advocate. 

 

Respondent                            :           Kashif Fayaz Arain, through Mr. Atta Hussain

A. Chandio, Advocate.

 

Date of hearing                      :           27.05.2024.

Date of order                          :           30.05.2024.

 

ORDER

           

Shamsuddin Abbasi, J: Through the instant application, applicant Muhammad Tasleem Arain has sought for withdrawing Summary Suit No.04 of 2023; re; Kashif Fayaz v. Muhammad Tasleem pending before learned 5th Additional District Judge, Larkana, and or F.C. Suit No. 59 of 2023 re; Muhammad Tasleem v. Kashif Fayaz pending before learned 2nd Senior Civil Judge, Shikarpur, and transfer of either suit to one and same Court.

 

            2.         Learned counsel for applicant submitted that, the respondent Kashif Fayaz filed aforesaid summary suit before learned District Judge, Larkana, against applicant Muhammad Tasleem, for recovery of Rs.55,00,000/- on the basis of cheque No. D- 83384537 of Meezan Bank Shikarpur Branch. Such summary suit was entrusted to learned Additional District Judge, Ratodero for its disposal in accordance with law. The suit was decreed as ex-parte in favor of respondent Kashif Fayaz vide judgment dated 20.10.2023. Such judgment was challenged before this Court and ultimately judgment and decree passed by learned Additional District Judge Ratodero was set-aside and case was remanded back to District Judge, Larkana, for its disposal on merits. Ultimately, learned District Judge, Larkana, entrusted the case to learned 5th Additional District Judge, Larkana, and presently it is pending there, for adjudication. Learned counsel further submitted that, applicant Muhammad Tasleem Arain also filed F.C. Suit No. No.59 of 2023 re; Muhammad Tasleem v. Kashif Fayaz before learned 2nd Senior Civil Judge, Shikarpur, for declaration, settlement of account and mandatory injunction against respondent Kashif Fayaz in respect of the same cheque, which is pending adjudication before learned 2nd Senior Civil Judge, Shikarpur. Learned counsel contended that, issue / dispute in both the suits is substantially same; between the same parties, therefore, it would be proper that both suits be consolidated and heard together by the same Court. Lastly, learned counsel submitted that it would be appropriate, if the issue which is of common nature may be resolved by the one Court just to avoid conflicting view/ judgment, which will be in the larger interest of justice.

 

            3.         Conversely, learned counsel for respondent opposed the application by contending that both suits cannot be tried together for the reason that appellate forums in both the cases would be different, as such transfer of any of the case to either Court would deprive of either party of one forum.

 

            4.         Heard learned counsel for the respective parties and perused the material available on record.

 

            5.         It is admitted position that, both the parties are litigating against each other on one disputed issue and case set up by both the parties before both the Courts below is the same, as such, dictates of justice demand that the issue, which is of common nature, would be resolved by one Court, just to avoid conflicting view/ judgment, which will be in the best interest of justice. More-so, transfer of any of the suits from either Court would in no way prejudice the case of any party. So for as, contention of learned counsel for respondent that, since appellate forums in both the cases would be different, as such transfer of any of the case to either Court would deprive of the either party of one forum is concerned, suffice it to say that this is misleading and illusive ground, as grievance of deprivation of one forum by replacement of better forum is not justifiable. Reliance in this regard can be had from the precedents established in cases reported as 1984 C.L.C 3090 [Karachi], 2017 MLD 323 [Islamabad], 2010 C.L.D 981 [Karachi], 2001 MLD 1024 [Karachi] and 2005 YLR 181 [Lahore].

 

            6.         Accordingly, in order to avoid likelihood of contradictory decisions by two Courts, the suit pending before learned 2nd Senior Civil Judge, Shikarpur, i.e. F.C. Suit No.59 of 2023 is withdrawn from that Court and is transferred to the Court of learned 5th Additional District Judge, Larkana, where Summary Suit      No. 04 of 2023 is pending adjudication, with directions that both the suits be consolidated and disposed of in accordance with law.    

 

            7.          The transfer application stands disposed of in above terms.

 

 

 

                                                                                    Judge

 

Ansari