SARMAD JALAL OSMANY, J.--- This petition challenges the order dated 30.5.2003 passed by the learned Vth ADJ, Karachi South, in F.R.A. No. 266/2001 dismissing the same solely on the ground that said order was passed without jurisdiction as the transfer, of the said F.R.A. To the learned Appellate was as unlawfui.
2. Per Mr. Shafi Muhammadi, learned counsel for the petitioner, the respondent/landlord had filed RC No. 1622/1998 against the petitioner for ejectment from the rented premises on the ground of personal need as well as nuisance etc. Which was allowed and against which the petitioner had filed F.R.A. No. 108/2001 before this Court. Said F.R.A. By virtue of amendment in the Sindh Rented Premises Ordinance was transferred to the learned District Judge, Karachi South who in turn marked it to the learned Vth ADJ, Karachi South for disposal according to law. Said learned Presiding Officer after hearing the parties had reserved the order but in the meanwhile the respondent moved an application for transfer of the said F.R.A. Which was renumbered as 266/2001 and the same was allowed, without any notice and hearing the petitioner. Upon transfer of said F.R.A. To the learned Vllth ADJ, Karachi South, the final order dated 30.5.2003 was passed based on the written arguments but again without hearing the petitioner's counsel.
3. Per Mr. Shafi Muhammadi therefore, the transfer application moved before learned DJ, South could not be granted once he matter had been marked to a learned Judge after being received from this Court and after substantial proceedings had taken place as in the present case. In this connection he relied upon Section 21(1-A) of the Sindh Rented Premises Ordinance, 1979 which provides that whenever an appeal is filed against the order of any Controller to the District Judge he may hear it himself or refer it for disposal to an Addl. District Judge. Learned counsel has therefore submitted that once this exercise had been undertaken then transfer to another learned Addl. District Judge could only be done by this Court under Section 21(1-E)(b) of the Ordinance ' as the learned District Judge has powers under Section 21(1-E)(a) of the Ordinance to withdraw any rent application pending with the Controller and transfer the same for disposal to any other Controller.
4. In support of his contentions, learned counsel relied upon Haji Khawar Saleem v. The State (2001 SCM R 905), Pir Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66) and Asghar A.I v. The State (1992 M LD 1533).
5. On the other hand Mr. Rana Muhammad Ahmed Khan has submitted that initially the matter was transferred to the V ADJ, Karachi South by the learned District Judge who after hearing it had reserved judgment. However, as the same was not announced for 13 months thereafter the respondent moved an application for transfer of the case to another Judge which was allowed. Per learned counsel this exercise was perfectly legal in terms of Section 21(1-B) of the Ordinance as being administrative in nature, it does not provide for any notice to any party before an appeal marked to one learned ADJ can be transferred to another ADJ. He has relied upon Barkat A.I v.
Muhammad Ahsan (2000 SCM R 556), Allah Rakha v. Muhammad Shafi (1978 SCM R 437), Muhammad Shoaib Alam v. Muhammad lqbal (KLR 2000 (SC) 192) Mst. Amina Begum v. Ghulam Dastagir (PLD 1978 SC 220) and Master Moosa Khan v. Abdul Haq (1993 SCM R 1304) and Jamil Ahmed v. Saifuddin (1997 SCM R 260).
6. I have heard the learned counsel and my conclusions are as follows:--
7. It would be seen that per Section 21(1) of the Sindh Rented Premises Ordinance an appeal from the final order of the Rent Controller lies to the District Judge having jurisdiction in the area where the rented premises are situated. Per sub-section (1 A) tie [);strict Judge may hear the appeal himseif or refer it to the Addl. District Judge. Furthermore, according to sub section (1-B) the learned District Judge may recal: an appeal referred to the Addl. District Judge and either hear it himself or transfer it to another Addl. District Judge. Finally per sub-section (1-E)(b) this Court may upon the application of a party and after notice to the other party or on its own motion without such notice, at any stage withdraw any appeal pending with any Appellate Authority and transfer the same to any other Appellate Authority.
8. From a perusal of the aforementioned provisions of law, it transpires that the powers given to the learned District Judge in terms of Section 21(1-A) and (1-B) are purely of an administrative nature and hence would be exercisable without giving notice to either party. However, in terms of sub- section (1-E)(b) only this Court has the power to transfer the appeal from one Appellate Authority to another when a complaint is made by any party as to the conduct of the appeal by the concerned Appellate Authority or matters ancillary thereto. In the present case, it would be seen that according to the diary of the learned Vth ADJ, Karachi South, the case was received by transfer from the learned District & Sessions Judge, Karachi South on 25.9.2001 and thereafter it was adjourned from time to time for hearing. Finally written arguments were filed by the counsel on 11.3.2002 but judgment could not be delivered even uptill April, 2003. Then on 30.4.2003 an application was moved by the learned counsel for the respondent/landlord that as the matter had been inordinately delayed it be heard by the learned District Judge or appropriate orders be passed. Consequently, the learned District Judge transferred the case to the Court of VII th Addl. District Judge, Karachi South. A perusal of the diary of this Court would show that the matter was received by transfer on 8.5.2003 when it was adjourned to 13.5.2003. On this date learned counsel for the respondents was present while none was present on behalf of the petitioner and hence the matter was adjourned to 24.5.2003. On this date learned counsel for the respondent was present who finds a statement that he would adopt the written arguments already submitted by him. The matter was hence posted for judgment on 30.5.2003 which was announced on the same day. In view of the foregoing facts and circumstances I am of the firm opinion that the power exercised by the learned District Judge in transferring the matter to the learned Vllth ADJ from the Court of learned Vth ADJ was proper and in accordance with law and as this was' done purely on the administrative side which did not require any notice to any party. None of the parties had ever alleged any mala fides or other inappropriate behaviour/conduct on the part of any Presiding Officer which would more appropriately have been the subject-matter of -a transfer application addressed to this Court under sub-section (1-E)(b) of the Ordinance. As to the cases cited by learned counsel for the petitioner, in my opinion, the same are distinguishable as they pertain to criminal matters which are regulated under the Criminal Procedure Code and they involve either allegations of impropriety against the concerned judicial officers or some jurisdictional defect with the Transferee Court. For this proposition reference can be made to Haji Khawar Salim v. The State, supra. As observed above these are not the facts in the present matter.
9. Having observed as above, it may also be seen that upon receipt of the appeal by learned Vllth Addl. District Judge no intimation notices were served upon the petitioner or his counsel. On 24.5.2003 the matter was reserved for announcement of judgment on 30.5.2003 after observing that learned counsel for the respondent who was present before the Court had relied upon the written arguments earlier filed by him, in the circumstances, although counsel for the petitioner had also filed written arguments, the matter could not be decided in his absence which was due to the fact that no intimation notice was issued to the petitioner or his - counsel. Consequently in my opinion the impugned order suffers from a grave legal defect viz. It was passed without hearing the petitioner. In the circumstances the same is set aside and the matter remanded back to the learned Vllth ADJ, Karachi South who after issuing intimation notices to both the learned counsel shall thereafter proceed to decide the appeal within two month.