Manahil Imran and Another Thr. Imran Latif (Applicant) VS Mohammad Sadiq Khurshid (Respondent)

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ClVil Transfor Applicatlon No. 2t of 2024

Mana5il lmran \ a-v1rc \u'.-r,

Vs.

Mohanrnracl Sadlq Khurshoocl

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Mr. Justice Molrarrrrlad l(arirn l(lran Agha

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(n)Judgment applovecl for Rcporting l'cs

C]]IT.fIFICT\TE.

Certified that the judgnient */Order is based upon or enuuciates a principle ol'larr */decides a queslion of larv rvhich is ol trlst impression/distinguishes/. ()r'er-nrlcs revcrses/explains a previons decision.

" Strike out rvlrichevel is not applicable.

NOI-ll: - (i) This slip is.only to be usecl rvhen sorne action is to be trkcn.

(ii)If the slip is used, the Readcl rnust attach it to the top ol'thc tilst page ol- the.iudgnrent.

(iii)Reaclcr rnust nslt rlre .ludge rvriting the.ludgnrent u'hcthcr rrrc Jutlgnrcnt is approvcd li:r rcporting.

(iv)'l'hosc tlirectiotts rvltich arc rrot to be rrscd should b,r. rlclercrl.

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l;cnrllc, Muslittt, Aclttlt, ll/o l'lotrsc No, l-8, Ciz.ri Iloulevarcl Phaso 1V, DI'lA, I(arachi 'l'horough hcr lawful attorncy Naurely h'nran Latil.

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D/o Sacliq I(hurshid Minor'fhrough het' mother Mst. Manahil Sadiq \

Applicant No. I icants fon'

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iq I(hurshid

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I(hayaban-o-Sclrcr

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ott [:c hull' of Pctitioners abovc e (lourt ntuy bc plcascd tt> trarrslbr thc ll.orrr tho Cout't ol' Xiith

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IN 1' Ir lll ,I' Ir I D A RACLII

el-YLL.l.rt N-SLli

l\ppIi('.1111. lvlarrnlril Ittrlarr through Ms' Asnraa Javaicl' Advocate l{r'sp1111dc111 Moirarnurad Sadiq I(hursheecl, through Mr Adil Charura, Aclvocate IJntr.of I-loaring 06.08.2024

Dntc of Or.cler 09.08.2024

ORDER

Mohqtnnto,d Karlm Khan Agha, J Applicants have moved applicarion urrder Section 24 cPC read rvith section 25-A oiFamily courts Acr, 1964 r/r, Section 151 CPC for transfer ol Family Appeal No.38 ol '2024 pencling before the court of XIIth Addl. District Judge, Karachi to any other court of competent jurisdiclion.

2.Learned counsel for the applicants has submitted that the courl of XXth civil / Family Judge (south) I(arachi in G & w Applicarion No.1868 of 2o2o passed a detailed order dateci 2r.a2.24 u,hereby subject to certain conditions the applicants lvere grantecl a Guardianship cerrificate o[ Manahil Sadiq d/o Imran Latif. However, the Respondent No.l chalrenged the aroresaid order and whire hearing a misce[a.eours application court oi XIith Addr. District Judge (South) r(aracl_ri h.ci passed an order dated a3.o4.io2grili-,.."uy parts of the aforesaid orcler had been suspe,ded. she further contended that the concerned Jr-rclge by passing order dated 03.04.2024 had arready made up his mincr through his interim orcler that the father shourcr be Gnardian or the chird rathcr r-han mothcr ancr as such she contendeci that the appeal shor-rlcl be transferred lo sorne otlrer Court.

t 3. on the other rra'd learnecl counsel ror the respondent contencred that rhe appricants had not macrc any preadings that the judge u,as biased against her ancr was onry clissatisr"iecr rvith some or the rindir_rgs madc in the order dated 03.04.2024 and this was not a grouncl lor

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trnnsfer of the procec<lings ns the conLcntions of the applicants had been fully denlt rvith irr ordcr datcd 03.04.2024 which was a detailed speaking ordcr nnci thnt wos not thc ground for changc of Judgc simply becausc counsel ior thc npplicnnts was not satisfied wi[h some aspects of his dccision.

.1. I havc hunrtl l*nlrrcd counsel for appllcants ancl respondent ancl perused the'rr'cord urr,l corrsir.lcrer{ tho rclcvant law.

5.lt appears irr thls casc that thc main ground for the applicants loosing faith in thu. Jurtge is that lre has alrcarly made r"rp his mind in respect of the appeal thror.rgh his interirn orc'ler which in part decided against applicant by citing the case of Ms Shazia Akbar Ghalzai V Additional District fudge Islamabad East (2021 MLD 2027 817 Islarnabaci) whiclt found the father to be the natural guarciiau based on the particular facts and circumstances of that case.

6.In the case of Mian Mtrhammad Rafiq Saigol vs BCCI and others (1996 CLC 1930) it lras been held that merely because an adverse judicial order had been passed against a party it would not serve to be a sufficient ground to justify the transfer of the case from one court to another. I am in full agreement with this line of reasoning since to proceed contrary to the same would mean that in each and every case in which a party receives an order which it considers adverse to it he could apply to lransfer the case. To allow such a proposition in my, r,ielv rvould in effect be an open invitation for unscrupulous applicants to seek to transfer a case if they felt that the decision was going against them and thereby not only aim to derail the decision but also unnecessarily prolong the case which would not equate with the concepts of ensuring either the efficient administration of justice or the rigl'rt to an expeditious trial. It woulc{ be akin, in my view, to allowing a party on flimsy uncalled for grounds to seek to keep on changirrg thc judge irr his trial/appeal until he was of the view that the juclge rvas favorable to hirn which is contrary to our system of justice where the parties have no right to pick the judge of thier choice. Such conduct would also undermine thc Judgc's performance ol the ir functions. Irr this case the applicants have culv lcveled bald allegations against the Juclge. No evit'lence of bias has treen pleat{, t The fact that his order is interim in nature subject to the decicling of the appeals means tl'rat the Juclge has rrot rnaile up his mind as yet and the applicants when t

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the appeals are heard will have the full opportunity to argue their case before the Judge based on the particular facts and circumstances of their case and distinguish any authority relied in the offencling order with orders/judgments in their favour passed by DB's of other high courts and preferably the Supreme Court.

7.ln the cnse of Amlr Altas l(harr V state (2002 scMR 709) it was held that a party canuot claim thc trarrsfer of the case as a matter of routine or at his wishcs trnless it is shown from the recorcl that in the circumstances a free antl fair

trial/appeal is not apparer.rt from the face of the record, In my view the and fair hearing applicants have not been able to show frorn the record that a free of their appeal would not be possible.

8.Furthermore it was also held in the case of Sameer Ehsanullah Makhzan 554) at and 3 otlrer vs. Muhammad Asif Zaman and 3 others (PLD 1'993 Lahate page 557 paragrapl'r-4 as under:-

" 4. I have considerecl the arguments addressed by the learned counsel for the petitioners and have also perused the comments submitted by thl learned Civil Judge.There is no cavil with tl.re proposition lhat justice is not only to be done but it sl-roulcl appear io tiave been done and further that any genuine apprehension in the rnind of the litigant which is based on valid and reasonable grounds that he shall not get justice at the hands of the Presiding 6ffi.".r, will be a valid ground for transfer of a case from that court. However it is equally important that the Courts should not be unnecessarily harassed merely on the basis of baseless apprehensiou, of reckless litigant, which is result of whims, suimises and conjectures. Learned Judicial Officers who preside the Court, have to be given a full protection against frivolous allegations in view of the onetous, noble and dignified duty they are performing while deciding the cases, and for performance whereof they are directly responsible to the Almighty AIlah. They should not be allowed to be harassed and maligned unnecessarily by the litigants merely becanse they pass itrdicial orders against the said litigants."(bolcl adclecl)

9.It also appears in the instant case that the offending order is only of an interim nature and as mentioned earlier the applicants vvill have the full I opportunity of presenting tlreir case wheu the appeals are hearcl by the appellant court which so far in my view has not displayed ar"ry kind of bias or favoritism towards any party to date in passing the offending order which was well reasoned and considered and addressed the applicants arguments. _

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10.In my view based on the facts and circumstance of this particular case the applicants have noi been able to make out a case for the transfer of their case on account of any bias or unfairness or favoritism on the part of the Judge as would application is dismissed' iustify the transfer of their case and as such the transfer directed However, the appellant court hearing the appeals related to this case is months of the to decide all such appeals connected with this malter within three clate of this order through speaking orders. The office shall provicle a copy of this court for its compliancc' order immediately to the learned Judge of the appellant k/k iurbPr orlnJz,a

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