Amjad Amin Lodhi vs A.D.J etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

W.P.No.7235 of 2019/BWP Muhammad Amjad Amin Lodhi versus Addl. District Judge, Bahawalpur, etc.

Sr. No. of order/ Date of order/ Order with signature of Judge, and that of Proceedings Proceeding Parties’ counsel, where necessary 30.06.2021 M/s Malik Imtiaz Mahmood Awan, Advocate and Muhammad Yaseen Ataal, Advocate for petitioner. Malik Muhammad Khalid Dawanj, Advocate for respondent No.3.

Through this constitutional petition, petitioner has called in question consolidated judgment and decree dated 07.03.2019 passed by Judge Family Court, Bahawalpur whereby suit for recovery of dower and maintenance allowance filed by respondent No.3 “respondent” was decreed in her favour and suit for cancellation of Nikah Nama filed by petitioner was dismissed and has also called in question judgment and decree dated 25.06.2019 passed by learned Additional District Judge, Bahawalpur whereby appeal filed against the same by petitioner has been dismissed and as a result thereof, the respondent has been held entitled to receive cash Rs.50,00,000/- as dower and cash Rs.10,000/- per month as maintenance for her Iddat Period only, from the petitioner/defendant.

2.Although petitioner has challenged the judgment and decree concurrently passed by both the courts below by mainly raising two fold grounds, first that it was

established from record that the alleged marriage between petitioner and respondent was not a valid marriage and Nikah Nama produced by the respondent was a fabricated document, hence, she was not entitled to recover anything including dower and maintenance from the petitioner and in the alternate, petitioner has raised second plea that even if the marriage is considered as valid marriage, its consummation had not taken place, hence the respondent was not in any case entitled to claim more than half of dower, however, yet another legal ground going to the root of matter has emerged during the course of arguments, which is that on 25.06.2019, when the learned Additional District Judge, Bahawalpur dismissed the petitioner’s appeal against the impugned judgment and decree passed by the learned Family Court, the learned District Judge, Bahawalpur through an order dated 25.06.2019 passed on same day had ordered for transfer of the said appeal on administrative grounds to another court presided over by Mr.Danish Afzal, Additional District & Sessions Judge who had been posted at Bahawalpur against existing vacancy.

3.It is contended by learned counsel for petitioner that as the matter had been transferred, the learned Additional District Judge that passed the impugned decision no longer retained power or authority to decide the appeal, hence the impugned decision was not sustainable. On the contrary,

learned counsel for respondent defends the impugned judgment and decree by stating that learned Additional District Judge had already heard arguments and had actually decided the matter prior to receipt of said administrative order for transfer of appeal, which was passed in the later part of the day, hence in view of decision of the appeal having been passed prior in time, such transfer of case on administrative ground had become redundant and would not affect the decision of the appeal.

4.In order to appreciate controversy, transfer order of learned District Judge is reproduced as below:

“OFFICE OF THE

DISTRICT & SESSIONS JUDGE,

BAHAWALPUR

ORDER

As Mr. Danish Afzal, Additional District & Sessions Judge has been posted at headquarter Bahawalpur against an existing vacancy vide Hon’ble Lahore High Court, Lahore, notification No.86/RHC/AD&SJJ, date 17.06.2019, therefore, in order to equalize the work and to ensure expeditious disposal of cases, the family appeals, civil appeals and original suits, as per detail mentioned in column No.2 of table below along with connected matters, if any, except the cases where specific direction has been issued by the Hon’ble High Court or the Apex Court, are hereby withdrawn from the courts mentioned in column No.3 and are entrusted to court mentioned in column No.4, for hearing and disposal in accordance with law, with immediate effect:- Col. Col.No.2 Col.No.3 Col.No.4 No.1 Sr. Description of cases Name of Court Name of Court No.

1.Family appeals mentioned Mr. Muhammad at Sr. No.1 to 9 of list Ashraf, AD&SJ, Annexure-A. Bahawalpur.

2.Family appeals mentioned Mr. Muhammad at Sr. No.1 to 225 of list Yasir Nadeem Annexure-B. Razzaq, AD&SJ, Mr. Danish Afzal, Bahawalpur. AD&SJ,

3.Family appeals mentioned Hafiz Abdul Bahawalpur. at Sr. No.1 to 7 of list Hameed, Annexure-C. AD&SJ, Bahawalpur.

4.Family appeals mentioned Mr. Abdul at Sr. No.1 to 3 of list Quddoos, Annexure-D. AD&SJ, Bahawalpur.

5.Civil appeals mentioned Mr. Muhammad at Sr. No.101 to 180 of list -do- Yasir Nadeem Annexure-E. Razzaq, AD&SJ, Bahawalpur.

6.Original Suits mentioned Mr. Muhammad Mr. Muhammad at Sr. No.31 to 60 of list Yasir Nadeem Ashraf, AD&SJ, Annexure-F. Razzaq, AD&SJ, Bahawalpur. Bahawalpur.

7.Original Suits mentioned Mr. Hammad at Sr. No.71 to 90 of list -do- Ahmad Qureshi, Annexure-G. AD&SJ, Bahawalpur.

The Ahlmads of the Transferor Courts are directed to send the files of transferred cases to Transferee Courts immediately in bulk after page marking and indexing of the files against proper receipts.

Dated:25.06.2019 S/d (Malik Mushtaq Ahmad Ojla) District & Sessions Judge Bahawalpur”

5.It is clear that number of cases were transferred from different courts, out of which 225 cases were transferred from the court of Mr. Muhammad Yasir Nadeem Razzaq, AD&SJ, Bahawalpur (also referred to as Transferor Court) to the court of Mr. Danish Afzal, AD&SJ, Bahawalpur (Transferee Court) as per list of cases attached with said order as Annexure-B wherein petitioner’s case titled “Amjad Amin Lodhi v. Shabana Kausar” was at Serial No.24 of the said list.

6.The legal question that emerges for decision is that where order of transfer of case is made by the District Judge on the same date as the date of decision by the Appellate Court/Transferor Court before which the matter was pending, would the decision passed by the said Transferor Court be a valid decision.

7.Section 24 of the Code of Civil Procedure, 1908 (CPC) deals with powers of the High Court and District

Court to transfer suits, appeals and other proceedings from one court to another and inter alia provides that High Court and District Court may without notice on its own motion transfer cases from one court subordinate to it to another for disposal on merits and thereafter, the transferee court would deal with the matter. The said aspect came up for consideration in some judgments, some are discussed below.

In the case titled Mst. Riaz Fatima and another v.

Ch. Ijaz Ahmad and another (1999 YLR 2681) this Court observed that subject to the conditions mentioned therein, the provisions of Section 24 of CPC empowers the High Court and the District Court to transfer, withdraw and retransfer at any stage, any pending suit, appeal or other proceedings from one subordinate Court to another Court either suo motu or upon the move of aggrieved party, which power has overriding effect and enables the Court to monitor and supervise the Courts subordinate to it.

A learned Division Bench of this Court, while dealing with a matter relating to the Settlement Department in case titled Ghulam Muhammad v.

Settlement Department and others (1983 CLC 2507) held that subsequent to transfer of inquiry of matter by the Chief Settlement Commissioner, Additional Settlement Commissioner had no right to pass an order directing

Superintendent of Police to Register case against vendees of land.

In case reported as Mohammad Mushtaq v. Mst.

Shahnaz Begum (1992 ALD 530) while dealing with a matter wherein decree was passed by the Family Court in a suit for recovery of dowry articles despite the fact that case had been ordered to be transferred to another court in which other suits between the same parties were pending but the file had not been transmitted by the Transferor Court to the Transferee Court and said court decreed the same ex-parte against the defendant/petitioner and appeal there against filed by him was dismissed on ground of limitation, this Court observed that the Court from which the case had been transferred had exercised jurisdiction not vested in it under the law as after transfer order passed by competent Court, the Trial Court was not competent to decree suit. It was also held that the Appellate Court also erred in dismissing appeal of the petitioner on ground of limitation as proceedings taken by Trial Court were without jurisdiction and coram non judice and case could not be deemed to be pending before that Court. It was further held that judgment and decree passed by incompetent Court being void ab initio, plea of limitation was not available and resultantly, this Court had set aside the judgments and decrees of Courts below by declaring

that the said courts had exercised jurisdiction not vested in them.

8.The perusal of Section 24 of CPC and the principles laid down in the afore-referred judgments makes it clear that as the District Court/District Judge without notice could pass a transfer order for transfer of suit, appeal or other proceedings (i.e. appeal in this case) from one court subordinate to it to another, and the transferee Court thereafter was to proceed with the matter, therefore as a necessary corollary the court that was proceeding with the matter prior to transfer order would no longer hold authority to proceed with the matter or decide the same and the said transfer order/order of withdrawal of case would be tantamount to stay/injunctive order passed against the Transferor Court immediately restraining it to further proceed with the matter, the moment the said order is passed even though no prior notice was issued and said order was not communicated within time. For reaching this conclusion reliance has been placed upon principles laid down in a full bench judgment of this court reported in Karam Ali and others v. Raja and others (PLD 1949 Lahore 100), wherein it was held that the order of stay of proceedings will be effective from the time it is passed and not from the time it is communicated. The same principle has been laid down in the judgments reported as Haji

Abdul Jalil v. Javid Ahmad (1983 SCMR 869), Fazal Karim v. Fateh Begum and 6 others (2004 CLC 365).

9.The question that next arises is that although the jurisdiction of the Court that was earlier hearing the case was excluded the moment transfer order was passed, what would be the fait of proceedings that had taken place on the same day prior to passing of the transfer order, especially when both the orders were passed on the same date.

10.To resolve this controversy, reference is made to Section 24 (2) CPC which is reproduce as under:

(2)Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn.”

11.The perusal of afore-referred section makes it clear that the High Court or the District Judge, as the case may be, while passing the transfer order could issue special directions either to retry the case or proceed from the point at which it was transferred or withdrawn. However, no such direction was passed in the present case, so it is to be assumed that proceedings prior to that date would be saved. As regards, the proceeding of said date, it is observed that there is nothing available on record to show with certainty that which of order dated 25.06.2019 passed by the learned District Judge or order/judgment and decree

25.06.2019 passed by the learned Additional District Judge or order/judgment and decree of even date passed by the learned Additional District Judge was prior in time and whether the Appellate Court had actually decided the matter before passing of the transfer order or had the said court proceeded to decide the matter after the said transfer order was passed and it no longer retained power or authority to decide the same, especially when the transfer order had been passed in the absence of the parties without notice to them, therefore, this Court finds it appropriate to hold that it cannot be held that order passed by the Transferor Court was earlier in time to the transfer order passed by the District Judge. Hence, the question relating to the legality of proceeding conducted by the Transferor Court prior in time on the same date when transfer order was passed is left open to be decided in some other case, where the factual position as to time of passage of order before or after transfer order could be determined with certainty, hence it would not be appropriate to comment upon said aspect of the matter at this stage.

12.However, it is observed that as there is no material available on record to resolve the ambiguity as to which of the afore-referred order was passed first and the transfer order was passed on administrative grounds for fixing the matter including various other cases before

another presiding officer of the Appellate Court who had recently been posted to Transferee Court at Bahawalpur against an existing vacancy, the same should be assumed to have been passed in earlier part of the day as some prior preparation before passing transfer order would have taken place and resultantly, the proceedings of the said date conducted by the Transferor Court are liable to be declared as corum non judice and without jurisdiction and lawful authority due to withdrawal of suit from the said court with immediate effect.

Besides in the given situation and for safe administration of justice, balance has to be kept between the parties to see whether any of the parties shall suffer if pertaining situation holds the field especially when it is settled by now that no party should suffer from an act or omission of the court. In the instant case, the petitioner is likely to suffer more in case order of Transferor Court is allowed to hold the field which even otherwise would be without jurisdiction vested in the Transferor Court due to withdrawal of appeal by the District Judge through its transfer order, whereas no prejudice would be caused to either of the parties by setting aside the decision of the Transferor Court and remanding the matter to the District Judge, Bahawalpur for its entrustment to a Court of competent jurisdiction, where the appeal would be deemed to be pending for its decision afresh after

providing proper and fair opportunity of hearing to both the parties which exercise is expected to be carried out within next three months of communication of this order, therefore, impugned judgment and decree dated 25.06.2019 passed by learned Additional District Judge, Bahawalpur is set aside and the case is remanded for doing the afore-said needful. As this matter has been decided on a legal ground, this Court refrains itself to comment upon other aspects of the matter lest it may prejudice the case of either of the parties.

13.In view of the above observations, this petition is partially allowed.

(MUZAMIL AKHTAR SHABIR)

JUDGE

*KMSubhani*

Approved for reporting.