Muhammad Awais Vs Shahid Mahmood Chohan etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

LAHORE

JUDICIAL DEPARTMENT

C.R.No. 5329 of 2023

Muhammad Awais vs Shahid Mahmood Chohan, etc.

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 06.10.2026. Rao Muhammad Akmal and Ms. Nadia Shafiq, Advocates for petitioner.

Mr. Qamar Hanif Ramay, Assistant Attorney General for Pakistan.

Mr. Hassan Khalid Ranjha, Additional Advocate General, Punjab.

Through this Revision petition filed under Section 115 of Civil Procedure Code, 1908 (‘CPC’), the petitioner, Muhammad Awais (‘Petitioner’), has called in question, order dated 04.01.2023 (‘Impugned order’), whereby transfer application filed by the petitioner to transfer the appeal titled ‘Abdul Jawad versus Shahid Mahmood Chohan’ pending before learned Additional District Judge, Lahore (‘Appellate Court’) to any other court of competent jurisdiction was dismissed by the learned District Judge, Lahore.

2.The facts of the case are that on 18.12.2017, respondent No.1, Shahid Mahmood Chohan (Respondent No. 1’) filed an ejectment petition under Section 15 of Punjab Rented Premises Act, 2009 (‘ACT’) against Abdul Jawad (‘Respondent No.2’) by claiming that father of said respondent namely Shujaat Ali Khan, son of Abdul Hamid

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Khan, obtained shop number 2 of house number 839, Street number 7, Main Bazaar, Makkah Colony, Gulberg- III, Lahore (‘Rented premises’), on monthly rent of Rs.15,000/- (Rupees Fifteen Thousand only) who had sublet the same to the Respondent No. 2 on monthly rent of Rs.20408/- (Rupees Twenty Thousand four hundred and eight only) and the said respondent had defaulted in payment of rent and term of tenancy had expired, therefore, the respondent No. 2 was liable to be evicted from the premises. The said ejectment petition was contested by the respondent No.2 by filing an application for grant of leave to contest the ejectment petition. Learned Special Judge Rent dismissed the application for leave to contest and allowed the ejectment petition in favor of respondent No.1 on 15.03.2021, who was held entitled to receive arrears of rent from August 2018 at the rate of Rs.20,408/- per month, with 8% increase in terms of tenancy agreement till vacation of demised premises, whereas security amount of Rs. 3,00,000/- (Rupees three hundred thousand) deposited by the respondent was directed to be returned after adjustment in arrears of rent. Respondent No.2 was directed to hand over the vacant possession of the demised premises within 30 days from the passing of order and memo of cost dated 15.03.2021 (‘Ejectment order’). The order dated 15.03.2021 was challenged by respondent No.1 by filing appeal on 07.04.2021 before the learned District Judge, Lahore, which was entrusted to Mr. Zafar Mehdi, learned Additional District Judge, Lahore. In the said appeal, the petitioner filed an application under Order 1 Rule 10 CPC seeking permission to be impleaded in the array of

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respondents in the appeal on the basis of an oral agreement to sell dated 09.08.2021 entered by respondent No.1 in his favour by claiming that the petitioner has already paid the total sale consideration amount in presence of witnesses but the respondent No.1 did not fulfill the terms and conditions of agreement to sell and was not willing to transfer property in the name of the petitioner whereupon the petitioner was constrained to file suit for specific performance of agreement to sell. He claimed that the respondent No.1, being well aware of the pending suit, had not impleaded him as a party. The petitioner filed an application under Order I Rule 10 CPC for being impleaded as a party in the court of learned Additional District Judge where the appeal was pending, and also filed an application under Section 12(2) CPC for setting aside the impugned order dated 15.03.2021 passed by the learned Rent Tribunal/trial court. The petitioner thereafter filed an application before the learned District Judge Lahore, for transfer of matter to some other court of competent jurisdiction by claiming that the learned appellate court was trying to decide the appeal in haste without attending to the contentions of the petitioner. Perusal of the record shows that through the impugned order dated 04.01.2023, the learned District Judge observed that a person who is not party to the proceedings has no locus standi to file application for transfer of case and dismissed the same.

3.The petitioner seeks transfer of appeal to some other court of competent jurisdiction whereas the application filed by the petitioner for being impleaded as a party has not been decided in his favour directing the appellant to

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implead him as a party to the appeal besides the claim of the petitioner is based on an oral agreement to sell, the authenticity of which is still to be established by him in the suit for specific performance, stated to have been filed by him against the respondent No.1. In this scenario, the question that arises is that whether a person who has not been impleaded as a party to the proceedings can file an application for transfer of appeal from one court to another. The learned law officers contend that only a party can file an application for transfer of case and a stranger to the proceedings has no authority to seek transfer of a pending matter to any other court.

4.The power to transfer a rent matter is provided under Section 29 of the Act, which is reproduced below for clarity

‘29. General power of transfer.– (1) The District Judge of the district may, on the application of a party to the proceedings under this Act, and after notice to the other party, withdraw the proceedings pending before a Special Judge (Rent) or an Additional District Judge and transfer it, for disposal to any other Special Judge (Rent) or Additional District Judge competent to try and dispose of the same.

(2)The Lahore High Court may, at any stage, withdraw an appeal pending under this Act before a District Judge or an Additional District Judge and transfer the same to any other Court competent to dispose of the same.’

5.The perusal of the aforementioned section shows that in terms of its sub-section (1), the power to transfer a rent matter is vested in District Judge of the district, who may in exercise of said powers withdraw the proceedings

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pending before a Special Judge (Rent) or an Additional District Judge and transfer it, for disposal to any other Special Judge (Rent) or Additional District Judge competent to try and dispose of the same and the said power can be exercised only on an application of a party to the said proceedings. Whereas in terms of sub-section (2) thereof this Court may, at any stage, withdraw an appeal pending under this Act before a District Judge or an Additional District Judge and transfer the same to any other Court competent to dispose of the same, which exercise has not been made dependent upon an application to be filed by a party to the proceedings.

6.The afore-referred observations do not in any manner curtail the powers bestowed upon the District Judge under the prevalent laws in his administrative capacity to withdraw any proceedings pending before a court of competent jurisdiction and in the interest of justice transfer it, for disposal to any other court competent to try and dispose of the same for example, in cases where a Presiding Officer has been transferred without substitute, or is on long leave, or court is not functional for any other reason, or the Presiding Officer on being appointed as judge under a special law is for the time being no longer vested with authority to deal with cases under another special law, etc. However, in the present case the District Judge has not exercised powers, if any available, under administrative capacity to transfer the appeal, rather the petitioner who has not yet been made a party to the proceedings on the basis of his pending application under Order I Rule 10 CPC has filed the transfer application, which application has been dismissed.

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7.In furtherance of what has been stated above, it is important to mention here that the power of the District Judge to transfer a case is not unbridled, rather functions of his office are regulated by law and the particular statute under which he is exercising said power, for example if he is exercising the powers in a regular suit regulated under the CPC, said power is to be exercised under Section 24 CPC read with Chapter 13 of Volume-I of the Lahore High Court Rules and Orders. In transferring of family case, the said power is to be exercised under Section 25-A of the Family Court Act, 1964, and under the Rent Restriction Act, 2009, the said power is to be exercised under its Section 29. It is pertinent to mention here that Section 29 of the Act does not provide any power to the court to transfer a particular case from the appellate court on its own accord and the same can only be done on an application of a party to the proceedings.

8.A party to the proceedings can be defined as a person who already is a party to the proceedings and not a person who expects to be a party to the proceedings in future. A person who has filed an application Under Order I Rule 10 CPC to be impleaded as a party but has not yet been impleaded as such, in ordinary circumstances, also cannot file an application for transfer of the main case/appeal as the same would amount to putting the cart before the horse, which is not permissible under the law. Reliance in this behalf if any required may be placed on Mst. Nafisa Razi versus Karachi Development Authority through Director General and others (2026 CLC 1432 Sindh) wherein while dismissing an application filed for transfer of suit under Section 24 of CPC filed by a person

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who was an applicant seeking to be impleaded as a party to the proceedings, it is mentioned as under:

‘7. It may be observed that section 24 of the C.P.C. confers upon the District and the High Court the general power to transfer, withdraw and re- transfer at any stage, a pending suit, appeal or other proceedings either suo motu or upon application by a party. In terms of Order I, rules 1 and 3, C.P.C., a party is the person whose name appears on the record of the suit as the plaintiff or the defendant. As elaborated in the case of Sindh Industrial Trading Estates (supra), the word party in Corpus Juris Secundum has been defined as follows: -

"With reference to judicial proceedings, the word 'party' is generally used as meaning one of two opposing litigants, he or they by or against whom a suit is brought, whether at law, or in equity, the plaintiff or defendant, whether natural or legal persons."

Ballentine's Law Dictionary defines the word "party" as follows:--

"A person who had engaged in a transaction or made an agreement. One of the opposing litigants in a judicial proceeding-- a person seeking to establish a right or one upon whom it is sought to impose a corresponding duty or liability, including any person by whom or against whom a suit, either at law or in equity, is brought. For the purposes of a right to appeal, persons named as parties in the original pleadings and persons who subsequently come or are brought into the action for the purpose of seeking relief or of being subjected to relief..."

As such, in a legal parlance and juristic context, the word “party" refers to any individual, business, corporation, or government entity directly related to the party in the proceedings.

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8.In the instant case, it is an admitted position that the applicant is not a party to the subject Suit. She has merely filed an application under Order I, rule 10, C.P.C. in the subject Suit, which application is still pending adjudication. Sub-rule (2) of rule 10 of Order I, C.P.C., reads as under:-

(2)Court may strike out or add parties. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(Emphasis supplied)

9.It can be gathered from the above, that the sub-rule (2) (ibid) permits the striking out of a party improperly joined, whether as plaintiff or defendant, and addition of a person as plaintiff or defendant. As such, the person who has applied to the Court to become party cannot be regarded as a party unless an order is passed by the Court allowing the request for his addition as a party to the suit/proceedings. Hence, a person who is not a party to the suit/proceedings cannot maintain a transfer application.’

Hence, in view of what has been discussed above, as an applicant under Order I Rule 10 CPC or a person not a party to the proceedings, who may be treated as a stranger to proceedings, could not file an application for transfer of a case in which he has not yet been impleaded as a party, the learned District Judge rightly dismissed the application filed by the petitioner for transfer of the appeal

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and declined to withdraw the same from the court where it is already pending adjudication.

9.The impugned order does not suffer from any misreading or non-reading of record, and any illegality or jurisdictional defect for this Court to warrant interference and consequently the impugned order whereby the petitioner’s application for transfer of appeal has been dismissed is upheld.

10.In view of above discussion, the titled Civil Revision being devoid of merits is dismissed.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Zeeshan Khan *

APPROVED FOR REPORTING