' SYED ZAHID HUSSAIN, J.---Qua the judgment dated 4-3-1976 rendered by the learned Senior Civil Judge, Lyallpur (as it then was) an application under section 12(2) of the Code of Civil Procedure, 1908 was moved which was being heard by the learned Senior Civil Judge, who framed the issues and partial evidence was recorded. Due to administrative reasons, the said petition was transferred to the court of Mr. Javed Iqbal Sheikh, Civil Judge, Faisalabad. The petitioners took up the matter with the learned District Judge with the plea that the said application has to be heard and decided by the Court of Senior Civil Judge only, which, however, has been declined by the learned District Judge, Faisalabad. This petition has been filed in this context.
2. The learned counsel contends that from the language employed by the legislature in section 12(2) of the Code of Civil Procedure, 1908 it is apparent that such an application is to be heard and decided by the court which decided the suit.
3. Since despite notice, the respondents are not represented, the learned Additional Advocate- General was called upon to assist the Court, who contends that there cannot be an absolute prohibition on the rower of the court to order transfer or that such an application is necessarily to be heard by that court only which passed the judgment or decree.
4. The perusal of the provisions of subsection (2) of section 12 of the Code of Civil Procedure, 1908 shows that the remedy in terms of the said provisions is in the form of an application "to the court which passed the final judgment, decree or order and not by a separate suit". The expression "the court which passed the judgment, decree or order" is .Indicative of the intention of the legislature that such an application lies before the court whose judgment, decree or order is sought to be assailed. It cannot be overlooked that the grounds on which the judgment, decree or order can be challenged are fraud or misrepresentation also. In the context of such pleas the court which can appropriately consider such a plea is the one where fraud has been played. This appears to be the reason that phraseology like "the court which passed the final judgment, decree or order" is used.
Depriving the said court of its jurisdiction to examine such a plea of fraud, etc. Would defeat the intent and object of law. Undoubtedly, there can be situations such as when the Presiding Officer himself declines the hearing of a matter, and it becomes necessary to transfer the case to some other court. The transferee court in such an eventuality would as of necessity be competent to hear and decide the application. But a mere administrative convenience [equalizing of judicial work] cannot be regarded as a ground for the transfer of such an application from the court which, by law, is obliged to hear and decide the same. It also may not be necessary that the same Judge should decide the application. His successor i,e, the successor court, will equally be competent to decide the same as the word used is "the court" and not the Judge. In the instant case, it was the court of Senior Civil Judge, who had passed the final judgment and decree, which was competent to hear the application under section 12(2) of the Code of Civil Procedure, 1908. Such an application was indeed being heard by the successor court, who had not, by any compelling reasons, declined to hear the same. Mere administrative convenience could not have deprived the said court of the jurisdiction and power to decide such an application. From Mst. Riaz Fatima and another v. Ch. Ijaz Ahmad and another 1999 YLR 2681 also similar principle is discernable. While interpreting the phrase "The Court" it was held that "The expression "the" used before the word "Court" in section 12(2) is highly significant. "The" is an article which particularizes noun before which it is put" and prayer for transfer of proceedings under section 12(2) of the Code of Civil Procedure, 1908 from the Faisalabad court (which had passed the decree) to the Lahore court, was declined observing that such a matter could not be transferred to Lahore court, which had no jurisdiction to hear such an application. Administrative convenience, if at all was to be kept in view, i,e, lessening the burden of that court, some other case could have been withdrawn from him and entrusted to some other court but not this application under section 12(2) of the Code of Civil Procedure, 1908. It is thus directed that further proceedings in the application shall be conducted by the court of Senior Civil Judge and decided in accordance with law. The application will thus stand re-transferred to the Court of Senior Civil Judge, Faisalabad.
' In view of the above, this transfer application is allowed and disposed of accordingly.