ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Transfer Application    No.20  of 2010.                                                                                                                                        

DATE OF HEARING

ORDER WITH SIGNATURE                            OF HON’BLE JUDGE

                                    1. For orders on C.M.A.No.171/2010.

                                    2. For Katcha Peshi.

31.1.2011.

Mr. Abdul Karim Surahiyo, advocate for applicant.

                        Mr. Imtiaz Ahmed Shahani, State Counsel.

                                                -.-.-.-.-.-.-

O R D E R .

Aqeel Ahmed Abbasi, J- The instant application is filed under section 24, CPC by the applicant seeking transfer of F.C. Suit no.77/2009 re: Hafiz Darya Khan versus Muhammad Yousuf and others from the Court of learned IIIrd Senior Civil Judge, Larkana to any other Court of competent jurisdiction at Larkana.

2.                     The grounds mentioned for seeking such transfer are that the applicant has lost faith in the Court of learned IIIrd Senior Civil Judge, Larkana, as according to the applicant, the respondent i.e. Muhammad Yousuf has stated in public that the Presiding Officer has informed him that no adverse orders will be passed against him. It has been further stated that the applicant  moved an application Under Order 18, Rule 18 Read with Section 151, CPC on 12.6.2010 for inspection of site before the learned trial Court, which was dismissed  without even issuing notice to other side.

3.                     Comments were called from the learned trial Court. In response whereof District Judge, Larkana has submitted his comments vide letter dated 15^th November 2010. It has been stated that the transfer application filed by the present applicant on the ground as stated in para 3 of the affidavit filed along with such application as well as para 3 of the instant application was dismissed on merits after hearing the applicant and District Attorney. It is further stated  that the applicant intends to get his case transferred merely to prolong the proceedings. However, he has stated that he will have no objection if the transfer application is allowed and the matter is transferred from the Court of learned IIIrd Senior Civil Judge, Larkana to any other Court.

4.                     The learned State Counsel has opposed the instant Civil Transfer Application and submitted that no reasonable grounds or cause has been shown which may justify the  transfer of the case from one Court to any other Court. It is further submitted that the application contains baseless and vague allegation against the Presiding Officer, whereas no substantial ground has been raised.

5.                     I have heard learned counsel for the applicant as well as learned State Counsel and perused the record.

6.                     From the perusal of the provisions of Section 24, C.P.C, it appears that the District Courts and the High Court have been conferred with the general powers to transfer, withdraw and retransfer, at any stage, a pending suit, appeal or other proceedings either suo moto or upon application by a party to the proceedings. However, on careful examination of the entire Section 24, C.P.C, it emerges that the legislature, in its wisdom, has not stated the grounds or cited the instances, which can be made basis for seeking transfer of any case from one Court to another Court, unlike, the provisions of Section 526, Cr.P.C, which includes specific grounds and provides for the instances, which can be made basis for seeking transfer of a criminal case from one Court to another Court.

7.                     However, the Superior Courts through their pronouncements on the subject have laid down certain principles and have enumerated various grounds, under which the provisions of Section 24, C.P.C can be invoked. Powers vested in a Court in terms of Section 24, C.P.C are to be exercised, keeping in view he principles relating to administration of justice.

8.                     It is an age-old fundamental principle of law that justice should not only be done, but manifestly and undoubtedly should be seen to have been done. To achieve such objective, it is to be seen that the conduct of proceedings by a Judge should not generate any reasonable apprehension in the mind of a person that the learned Judge or the Presiding Officer is biased or his mind is prejudiced. Reference in this regard can be made to the case of Government of N.W.F.P & another v. Dr. Hussain Ahmed Haroon & others, 2003 SCMR 104.

9. Apprehension of bias, in my humble view, cannot be extended to judicial bias, on the ground that since a Judge while deciding a similar matter has already expressed an adverse opinion, therefore, the other case of similar nature might have the same fate. Reference in this regard can be made to a Full-Bench judgment of this Court in the case of Syed Tahir Hussain Mahmoodi & others v. Tayyab & others, PLD 2009 Karachi 176.

10. In the instant case, it appears that there is merely vague and baseless allegation against the Presiding Officer, whereas the applicant has shown apprehension of not getting justice for the reason that the learned trial Court has disallowed his application filed U/O 18 Rule 18, C.P.C without notice to other party.

11.                   I do not see any logic behind such apprehension, for the reason that non issuance of notice to other side could have been a reason for challenging such order with the other party who was not heard at the time of passing the order and not for the present applicant who was heard at length and the application was disposed of on merits. The applicant instead of having assailed such order in accordance with  law has resorted to move instant transfer application without any legal or factual justification.

12.                   In view of hereinabove, I am of the opinion that the applicant has not mentioned any reasonable ground for seeking transfer of the case from the learned trial Court to some other Court. Accordingly, the instant application being devoid of merits, is dismissed with no order as to cost.

Judge