ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Transfer Application No.S-23   of  2010

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

21.01.2011.

For Katcha Peshi.

Applicant Sain Rakhio Taggar present in person.

Mr. Altaf Hussain Surahio, learned State Counsel.

O R D E R.

Aqeel Ahmed Abbasi, J.-  The instant application is filed under Section 24, C.P.C read with Section 151, C.P.C., by the applicant seeking transfer of F. C. Suit No.18/2008 re Sain Rakhio v. Abdul Ghaffar & 5 others, from the Court of learned IV-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 IV-Senior Civil Judge, Larkana, as, according to the applicant, the learned Judge has already expressed his opinion while allowing an application under Order VII, Rule 11, C.P.C, filed by the respondent, whereby the plaint of the suit filed by the applicant was rejected.  Such order was assailed by filing an appeal before the learned District Judge, Larkana, who has set aside the said order and remanded back the case to the learned trial Court with the direction to proceed with the matter on merits, after taking evidence.  The applicant has alleged that the learned Judge of the trial Court has friendship and close relations with the respondent No.1, therefore, it has been prayed that there is no likelihood that the matter may be decided on merits. 

          3/-    Comments were called from the learned trial Judge, who submitted the same vide his letter, dated 12.1.2011.  It has been stated in the comments by the learned trial Judge that the suit filed by applicant/plaintiff Sain Rakhio was received on 11.10.2008 by way of transfer from the Court of learned III-Senior Civil Judge, Larkana, when an application under Order VII, Rule 11, C.P.C was already pending in the matter.  After hearing the Counsel for the parties, the plaint of the suit was rejected under Order VII, Rule 11, C.P.C on 29.11.2008, for being time-barred under Article 113 of the Limitation Act.  The present applicant/plaintiff filed an appeal against such order, which was allowed on 20.10.2010, the case was remanded back with directions to the parties to lead their evidence before the trial Court on 28.10.2010.  It is further stated in the comments that the applicant/plaintiff did not lead evidence on the given date and has been seeking adjournments thereafter on different grounds.  A transfer application was also moved before the District Judge, Larkana, which was dismissed on 30.11.2010.  The learned trial Judge has also specifically denied the allegation of having relations with any of the parties.  According to the learned trial Judge, the instant application has been filed to linger on the matter unnecessary.  However, he has extended his no objection if the case is transferred to some other Court.         

          4/-    The learned State Counsel has opposed the instant civil transfer application and submits that no reasonable ground or cause has been shown, which may justify transfer of the case from one Court to any other Court.  It is further submitted that the baseless allegations against the Presiding Officer would not justify the claim of the applicant seeking transfer of the case.

          5/-    I have heard the applicant present in person as well as the learned State Counsel and perused the record as well as the comments filed by the learned trial Judge.

          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 by keeping in view the 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 no specific allegation against the Presiding Officer, whereas the applicant has shown his apprehension of not getting justice, for the reason that since the plaint of the suit of the applicant was rejected on an application under Order VII, Rule 11, C.P.C., the learned Senior Civil Judge, according to the applicant, will dismiss the suit of the applicant in the same terms.

          11/-  I do not see any logic behind such apprehension, for the simple reason that while hearing an application under Order VII, Rule 11, C.P.C, the parameters and the consideration of such application are entirely different and limited in nature.  Only contents of the plaint are to be examined, whereas no evidence or documents whatsoever are to be taken into consideration while disposing of such application.  Since the order passed under Order VII, Rule 11, C.P.C was assailed by the applicant before the learned District Judge, who has set aside the said order and remanded the case to the learned trial Court for deciding the case on merits after recording the evidence, the apprehension of the applicant, under the circumstances, is misconceived and not tenable in law. 

          12/-  In view of hereinabove facts, 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.  Accordingly, the instant application, being devoid of merits, is dismissed with no order as to costs.  It will not be out of place to observe that authority vested in terms of Section 24, C.P.C in the District Judge or the High Court is to be exercised with caution, only in extraordinary circumstances and not as a matter of routine.  Whereas filing of baseless and frivolous transfer applications with an intention to thwart the legal proceedings or to cause inconvenience to the Court or either party, is required to be discouraged by dismissing such applications with heavy costs. 

          13/-  Since, in the instant case, applicant is appearing in person, therefore, I have restrained myself from imposing cost.

                                                                                                JUDGE

Tahir Kazi/*