' It is stated that the petitioner/plaintiffs filed a suit for a declaration and injunction which was rejected by the trial Court on 2nd September 1980. Thereafter the petitioner filed a 2nd suit on 3-9- 80, which was also rejected by the trial Court on 4-9-80, against which an appeal was preferred to the Additional District Judge, Bahawalnagar who on 17-9-1980, accepted the same and remanded the case to the trial Court for disposal in accordance with the law.
2. In the latter suit, the plaint had been rejected on the ground that there is no disclosure of cause of action but the learned District Judge by his order dated 17-9-1980, came to the conclusion that there was a distinction between a lease and licence and that it was yet to be proved whether the plaintiffs are licensees or lessees and as to whether they can claim the right of easement or not. He came to the conclusion that the trial Court had determined the matter without allowing the parties to adduce evidence on the basis of which it could be ascertained whether it was a lease or a licence.
3. It was in these circumstances that after the remand, the petitioners presented an application to the trial Court for transfer of the case to another Court on which it is stated that the trial Judge made observations to the effect that he did not wish to hear the matter as he had expressed his opinion in the matter. The matter was referred to the District Judge who by his order dated 25-9- 80, impugned in these proceedings, rejected the prayer for the transfer of the suit to another Court.
In doing so, the learned District Judge observed that whilst passing his earlier order dated 17-9-80, he was cognizant of the fact that the learned Civil Judge concerned had rejected the plaint under Order VII, rule 11, C. P. C. And that as this had been done mostly on legal points, he had after consideration of the issues decided to refer the case back to the same Civil Judge for hearing, disposal and determination. He further observed that a Judge is always open to conviction and cannot claim that his interpretation of law is always unexceptionable. Before me learned counsel for the petitioners has argued that where a Judge has expressed his opinion on a matter or given a finding in relation to an issue, this by itself would be a proper ground for the transfer of a subsequent case involving the same issue from his Court to another Court. In this context he has referred the judgment in Hafizur Rehman v. Shafiq Ahmad (1), Mst. Paro v. Chaija Singh (2) and Sita Ram v. Balak Ram (3). In Hafizur Rehman's case it was observed by the Single Judge that where a lower Appellate Court had expressed an opinion on some aspects of the case, a direction that the appeal on remand be heard and disposed of by another Judge would be appropriate. I do not disagree with this proposition but this cannot be an alterable rule. For were it to be so. It would be necessary that in every case of remand that there should also be a direction that the matter be heard by some other Judge. This has never been the intention of the law and in such cases such directions are always given on {{FOOT NOTE}}
(1) 1979 CLC 506 (2) AIR 1934 Lab. 539
(3) AIR 1933 Oudb 154 {{FOOT NOTE}} ' peculiar facts of the case. In Mst. Paro's case it appears that there were two connected cases and in one of them the learned Judge had expressed his opinion against which an appeal was pending.
It was in these circumstances that it was observed that the second proceedings should be transferred to some other Court for hearing and determination. In Sita Ram's case the subordinate Court had earlier decided the issues on the basis of evidence on record and expressed opinion with regard to the evidence and it was in these circumstances that on remand the case was directed to be heard and disposed of by another Judge. In the present case no evidence has been recorded and in fact this is the very basis of the order of remand. The judgments afore cited are, therefore, not attracted and I regret my inability to concede the arguments of learned counsel that in all cases where remand has been ordered, the suit should be transferred for disposal to another Court.
4. Another aspect which has engaged my attention and which has also engaged the attention of the lower Appellate Court is that no judicial officer can claim infallibility. The fact that a finding or a judgment of a Subordinate Court has been set aside by a superior Court does not mean that on remand such subordinate Court cannot hear and dispose of the suit. The learned District Judge was cognizant of this aspect of the matter and the impugned order does not suffer from any of the defects so as to attract the revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure.
5. For the reasons afore noted I also decline to exercise the jurisdiction vested is this Court under section 115 of the Code of Civil Procedure. The revision is accordingly rejected in limine.
Petition rejected.