' MAHMOOD AHMED BHATTI, J.---This application has been moved under sections 5(3) and 7(1)(A)
(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, seeking to withdraw two suits pending in the Court of the learned Judge Banking Court No, II, Multan and to transfer them to any other Court of competent jurisdiction.
2. The facts, which may serve as a background, are that the petitioner instituted a suit for declaration on 5-3-2005 against Zarai Taraqiati Bank Limited (ZTBL), contending that he has already repaid the loan, and that nothing is due from him, with the result that the bank is liable to redeem the land/property mortgaged with it. As this suit got under way, ZTBL also instituted a suit against the petitioner for the recovery of Rs,7,48,672. Both the suits were consolidated and consolidated issues were framed by the learned Judge Banking Court No,II, Multan.
3. Suffice it to say that the evidence is being recorded by the Court concerned. It seems that during the recording of evidence, some unpleasant events took place, at which the petitioner took offence.
Against this background, the instant application came to be instituted.
4. In support of this transfer application, the learned counsel for the petitioner contends that the petitioner is being treated unfairly and unequally by the learned Presiding Officer of the Banking Court No,II, Multan. He invokes Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 to argue that all parties to a suit/trial are to be treated equally. According to him, this assurance held out by the lawmakers to all citizen, including the petitioner is not being honoured. He has invited the attention of the Court to certain specific instances which made the petitioner lose confidence in the fairness of the trial. He elaborates that the defendant bank was allowed to confront the petitioner with certain documents even when they were not annexed to the *plaint instituted by the respondent bank nor were they relied upon by it nor was any notice served upon the petitioner either to admit or deny the correctness thereof. He complains that this prejudiced the case of the petitioner. That is why he as a counsel of the petitioner resisted the efforts of the bank to bring those documents on the record in the course of the deposition of the petitioner. The petitioner was made to leave the Court in a huff. Even so, he moved an application in writing requesting the Court to decide his objections first before allowing the respondent bank to bring those disputed documents on the record. He vociferously argues that instead of dealing with his objections forthwith, the same were deferred to be decided later on. From the narration of the aforementioned facts cum allegations, he puts forward the argument that the petitioner has lost all hope of a fair trial and a fair adjudication. He concludes his arguments by making a reference to Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, which guarantees due process of law, which embraces the guarantee of the fairness of a trial.
5. Learned counsel for the respondent opposes this application, contending that the petitioner has blown up out of all proportion ordinary events that take place daily in the Courts. He rebuts the arguments of the learned counsel for the petitioner that the documents sought to be produced by the bank in the course of cross-examination of the petitioner were liable to be waved aside. He also took the Court through the record of the proceedings of the learned Judge Banking Court No,II, Multan to urge that at no stage had the Presiding Officer lost his temper and despite provocation, he kept the proceedings on an even keel. In any case, he made conscious efforts not to allow the petitioner to make scenes in the Courts. Towards the end of his submissions, he stresses that the transfer application is just a device to drag on the proceedings and to evade and stave off the liability incurred by the petitioner, who is to repay a sum of Rs,7,48,672 due from him.
6. Arguments heard. Record perused.
7. No doubt, this Court is empowered under section 5(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 to transfer a case from one Banking Court to another, but this power is to be used sparingly. While conferring wide discretion upon this Court, subsection (3) of section 5 uses certain expressions, which might provide a clue as to how discretion is to be exercised. In my view, before invoking the power, the High Court is to see whether in the background of the peculiar facts of a case, it would be appropriate, expedient and conducive to the interests of justice to pass a transfer order. At the same time, it is to take into account whether the transfer order would relieve the parties of their hardships in pursuing the case or it would compound their miseries. Another consideration to be kept in view would be whether it would make things easier for the witnesses to be produced by the parties to the lis. In other words, the discretion conferred upon High Court is not to be exercised whimsically or in routine. Furthermore, no party to a lis could demand the transfer of a case as a matter of right. It is for the Judge of the High Court to take all the ambient circumstances into consideration before allowing any application for transfer of a case from one Banking Court to another.
8. To revert to the instant case, it seems that the ego of the applicant has been hurt, and the matters were made worse and exacerbated when Mr. Shahid Mahmood, Advocate, learned counsel for the applicant took it to his heart that the learned Presiding Officer had failed to oblige him and did not yield to his desires.
9. There is no gainsaying the fact that the Members of the Bar are to be faithful to their clients and they must discharge their professional duties boldly and fearlessly and they are not to be overawed by any Presiding Officer of a Court but it does not mean that they bear no responsibility towards the Bench. As Officers of the Court, it is expected of them that they would help maintain discipline and decorum, letting the proceeding to be carried out in a manner conducive to the administration of justice. In no case should they play up small matters, which tend to foul up things or undermine the authority of the Court or descend the administration of justice into chaos.
10. From the examination of the record annexed to the transfer application, I have no reason to believe that the learned Judge Banking Court No,II, Multan would not do justice to the applicant.
After all, he is duty bound to decide the lis pending before him in accordance with the law.
Needless to add, rule of law is ingrained in Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, which guarantees that it is the inalienable right of eveg_eitizen to be treated in accordance with law.
11. The upshot of the discussion made above is that I and of the firm view that there exists no ground within the parameters laid down in subsection (3) of section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 to transfer the suit of the plaintiff pending adjudication in the Court of learned Judge Banking Court No,II, Multan to another Court of competent jurisdiction.
In the same way, the suit instituted by Zarai Traqiati Bank Limited pending against the applicant shall be decided by the same learned Judge Banking Court. It is expected of him that while deciding the suit instituted by the applicant or filed against him, he shall make adjudication without being influenced by the conduct of the applicant or without being carried away by any observation made in this order. Disposed of.