ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Transfer Appln. No.S-09    of  2016

DATE OF HEARING

 

ORDER WITH SIGNATURE OF JUDGE

20.1.2017.

1. For orders on office objections.

2. For orders on M. A. No.402/2016.

3. For orders on M. A. No.403/2016.

4. For Katcha Peshi.

5. For orders on M. A. No.463/2016.

 

Mr. Imdad Ali Mashori, advocate for the applicant.

 

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NAZAR AKBAR, J.-    This civil transfer application has been filed by the applicant, who is defendant in Family Suit No.28/2015 filed by the respondent, his wife, for recovery of her dowry articles. The grounds taken in this transfer application are wild and unbelievable allegations against the Presiding Officer of the Court of 5th Civil Judge/Family Judge, Larkana.  It is alleged that the learned Presiding Officer has intentionally disgraced the applicant in open Court and he has given full support to the other side, therefore, he has developed apprehension in his mind. 

 

2.                Learned Counsel for the applicant at the hearing has reiterated the grounds taken in the application.  The perusal of file shows that the family suit had already been decreed by the learned Family Court after the applicant had entered appearance and had filed written statement but did not pursue until the decree was passed on 26.1.2016.  The applicant to assail the decree filed an application under Rule 13 of the West Pakistan Family Court Rules, 1965 read with Order 9, Rules 12 & 13 and Section 151, CPC.  The said application was dismissed by the trial Court by order dated 28.3.2016.

 

3.                The applicant preferred Family Appeal No.03/2016 challenging the judgment and decree as well as dismissal order of the application under Rule 13 of the West Pakistan Family Court Rules, 1965 read with Order 9, Rules 12 & 13 and Section 151, CPC.  The learned III-Additional District Judge, Larkana by judgment dated 11.11.2016 allowed the appeal preferred by the applicant and remanded the case with specific direction to the Family Court and to the applicant in the following terms:

“resultantly, the case is hereby remanded to the learned trial court/family court with directions to afford opportunity to both parties for adducing their evidence and after hearing both parties’ counsel, decide the matter on merits, preferably within the period of one month.  Parties are not present before this court, but their counsel are appearing, hence they are directed to ensure appearance of their parties before the learned trial court i.e. the court of learned 5th Civil Judge/Family Judge, Larkana on 15.11.2016 and they shall not claim any further court motion notice and shall not file any unnecessary adjournment.  Copy of this order is hereby sent to learned trial court for compliance.

13.              The record also shows that the appellant/ defendant has not vigilantly pursued his case before learned trial court and, thus caused delay in disposal thereof as per section 12-A of Family Court Act, 1964, which is deplorable, therefore, the appellant/ defendant burdened the cost of Rs.5000/-.”          

 

 

4.                On 15.11.2016 the Court was closed as it was announced public holiday and the case was taken up by learned trial Court on 19.11.2016 for the first time. The learned Counsel for the applicant cross-examined the respondent/plaintiff and after considerable cross-examination at the instance of the applicant his Counsel refused to continue cross-examination and declared that he will file a transfer application.  Then on 24.11.2016 he filed the instant transfer application on frivolous allegations to ensure delay in the trial Court.  He started taking dates in the trial Court on the ground of having filed transfer application before this Court, which was never listed in Court until 03.01.2017 and even on the said date an urgency application was dismissed as the case was already fixed in Court on 20.1.2017.  This application is supported by the affidavit of the applicant himself alone and even his Counsel has not come forward to support such allegation.  Generally such allegations against the Judges are leveled in complaint filed against them before the Member, Inspection Team for monitoring lower Courts.  The applicant has not given any reason that what prompted the learned Judge to behave in the manner alleged while recording evidence.  These allegations are in fact contemptuous besides being an attempt to defy the orders of Additional District Judge in Family Appeal No.03/2016 in which the applicant/appellant was ordered that he “shall not file any unnecessary adjournment.”  The learned appellate Court has also held that the applicant was also found guilty of “causing delay in disposal of Family Suit”.  Then again on remand the applicant is guilty of causing delay in a family case which ought to have been decided on merit within six months from 25.04.2015 when the suit was filed that is to say by 24.10.2015 in terms of the mandatory provisions of Section 12-A of the Family Court Act, 1964.

 

5.                In view of the above facts, while dismissing this transfer application, I am of the considered view that the applicant is guilty of contempt of trial Court by alleging that:

“10.   That, learned judge always gives full support to other side while making shouting in open court and misbehaving with applicant.”

 

Beside the above, the applicant by making unnecessary adjournment applications is also guilty of “defying” the order of IIIrd Additional District & Sessions Judge, Larkana in appeal No.03/2016 reproduced in para 3 above and relevant portion highlighted in bold letters.

                  

6.                In issuing contempt notice to the applicant on the basis of contents of transfer application, I am fortified by the judgment of Hon’ble High Court reported in PLD 1961 Dacca 153.  In the said judgment, the applicants were charged with the contempt of Court on the ground of using derogatory remarks in an application and they were convicted. The Hon’ble High Court has also issued contempt notice to the advocate for drafting transfer application containing aspersions against Sub-divisional Officer (N), Chittagong.  I quote the relevant observations of the Hon’ble Division Bench from the said judgment as under:

“3.     The contemner was engaged as a pleader on behalf of the accused persons and he drafted the petition filed in Criminal Motion No.18/59 (II) moved in the Court of the Special Judge and Ex-Officio Additional District and Sessions Judge, Chittagong.  In that petition drafted by him, 2 passages occur which are the following :

 

(1)  “That even then the local Police submitted a report recommending action under section 107 (read with) 117 (C) Cr.P.C., against the appellants and respondent’s personal friend, the Sub-divisional Officer (N), Chittagong, passed order dated 23-4-59, etc.

 

(2)  That the whole proceeding is the outcome of either misconception of facts through willful non-hearing of the appellants’ case and non-perusal of the appellants’ documents or a pre-procured planned thing, etc.”

  

4.       His clients in pursuance to a Rule for contempt issued by this Court were found guilty of contempt and necessary orders passed against them and during that hearing it transpired that the present contemner had drafted the petition in question. Accordingly a suo moto Rule was also issued on him.

 

5.       …………….

6.       …………….

 

7.       We have had occasions in the past to point out that cases of contempt are becoming more and more frequent now-a-days and it has become a fashion on the part of members of the Bar to make statements reflecting on the impartiality of the Presiding Officer.  This point of thing was never conceived of in the past.  Members of the Bar should remember that their primary duty is to the Bench and then to their clients and even if they have any instruction from the clients tending to cast reflection on the Presiding Officer, they should be very careful not to put those statements in any petition.  The clients for reasons known to themselves will go to any length to make allegations against a Presiding Officer but it is the duty of the lawyer to uphold the prestige and honour of the Court and not to indulge in making statements derogatory and insulting to the Presiding Officer.”

 

 

7.                In view of the above facts and the case law, this transfer application is dismissed; however, issue show-cause notice to Ghulam Sajjad son of Ghulam Jaffar Dayo, the applicant herein that why an action should not be initiated against him under the Contempt of Court Act, 2003.  The office is directed to register a criminal miscellaneous application on the basis of this order and issue show-cause notice to the applicant for 03.02.2017.  A separate file may be prepared.   

 

                                                                                                JUDGE  

 

 

 

 

 

  

 

 

 

 

 Qazi Tahir/*