IN THE HIGH COURT OF SINDH

CIRCUIT COURT AT LARKANA

Civil Transfer Application S-09 of 2018

Riaz Ahmed Massan

vs.

Nawab Shaikh & Others.

For the Applicant:                  Mr. Muhammad Sharif Qureshi,

                                                Advocate

Date of Hearing:                    07-09-2018

Date of Announcement:       07-09-2018

ORDER

Agha Faisal, J.     This matter was fixed for orders on an urgent application today, however, the learned counsel for the parties jointly pleaded urgency and sought to argue the matter on merits in its entirety. The urgency stood allowed, matter was taken up for hearing and the arguments of the respective learned counsel were heard at length.

2. Learned counsel for the applicant had moved this application under Section 24 C.P.C seeking transfer of Civil Appeal No. 11 of 2018 pending before the Court of learned Additional District Judge-I, Kambar (“Appellate Court”) to any other Court of competent jurisdiction. Per learned counsel, a suit had been filed before the Senior Civil Judge Warah, being I-Civil Suit No.45 of 2017, and the plaint therein was rejected pursuant to Order VII Rule 11 C.P.C.

3. It was contended that the said order which was impugned in appeal before the Appellate Court, subject matter of the present transfer application. Learned counsel for the applicant submits that initial application was made under Section 151 C.P.C to the learned Appellate Court itself seeking transfer of the matter and pursuant to the rejection of such an application, a transfer application was moved before the learned District Judge, Kambar-Shahdadkot @ Kambar. It is submitted that without considering the pleas of the present applicant in their true perceptive, the learned District Judge, Kambar-Shahdadkot @ Kambar dismissed the transfer application and hence this application.

4. Per learned counsel, the primary premise for the transfer sought is that the appellants have their doubts with respect to the impartiality of the present Appellate Court. It is thus contended that in view of such an apprehension having been expressed firstly before the Appellate Court itself, secondly before learned District Judge and finally before this Court in these proceedings it would be just and proper if the matter would be heard by another forum of competent jurisdiction and no detriment would be caused to the respondents if this transfer application is granted. Learned counsel for the applicant relied upon the case reported as Barkat Shah & Others vs. Shams ur Rehman & Others reported as 2015 MLD 57 (“Barkat Shah”) in order to augment his submissions.

5. Mr. Abdul Hussain Ali Hassan Junejo, advocate for respondent No.1 states that on the contrary present transfer application is not maintainable as the right, to seek a transfer of proceedings, available to the appellant has already been exercised by the appellant before the learned District Judge, Kambar-Shahdadkot @ Kambar. The learned counsel narrated the facts of the case and expounded that the controversy herein has already been heard by two independent forums, being learned Trial Court and the learned District Judge, Kambar-Shahdadkot @ Kambar, and that findings have been rendered against the applicant in both such matters. Per learned counsel, the appellant had instituted an appeal before the learned Appellate Court and the only proceeding till date has been the issuance of notice to the respondents. It is submitted that the present application is another ploy of the appellant to delay the adjudication of the appeal and hence the same may be dismissed.

6. This Court has heard the respective learned counsel at length and has also held the benefit of perusal of the record. The narrative elucidated by the respective learned counsel is not reproduced for the sake of brevity, however, it is apparent from the record that this matter has been subject matter of two similar proceedings, before the learned Trial Court and the learned District Judge, Kambar-Shahdadkot @ Kambar respectively. Perusal of Section 24 of C.P.C states that transfer of any appeal in the present circumstances could have been ordered by either the District Court or the High Court in the exercise of powers so conferred. It is apparent that the said section was invoked and proceedings were filed by the present appellant before the District Court. The memorandum of application filed by the appellant before the learned District Judge is available at page No.33 of the Court file and it is demonstrated there from that the content thereof is identical to that which is contained in the present application. The learned District Judge exercising the powers under Section 24 of the C.P.C has already dismissed the transfer application vide order dated 19.04.2018 and the said order has not been assailed by the applicant before any forum. It is thus observed that present application would prima facie be hit by the restrictions of res judicata.

7. Learned counsel for the applicant had relied upon the judgment in Barkat Shah wherein the Court’s attention was drawn to the following segment:

“Court was obliged to kill frivolous lis in its very inception and same should not be allowed for a single breath, so that confidence of the public in the system should strengthen.”

8. It is observed that the reliance upon the said judgment does not augment the applicant’s case in the present circumstances because the ratio referred to is required to be considered by a court seized of the main case and not by a court seized of transfer proceedings. In any event the applicant would remain free to rely upon this judgment in the appeal that has been filed in order to cement his arguments.

9. The allegations against the learned appellate Court are of a vague and generic nature and in the present circumstances and facts cannot be made the basis for transfer sought. Allegations against a learned Judge are to be taken seriously, however, in the absence of any cogent basis for such allegations casting of aspersions upon a learned Judge is deprecated.

10. In view of the foregoing it is considered opinion of this Court that the present transfer application is not maintainable and is even otherwise devoid of merits and hence the same is hereby dismissed.

11. Office is directed to directly communicate a copy of this order to the learned Appellate Court for necessary reference and record.

                                                                                                      Judge

Abdul Salam/P.A