' Petitioner through this Transfer Application under Section 24, C.P.C. Seek transfer of the two connected suits i,e.
(1) Suit No. 23-A of 2010, titled "Nadar Khan and others Vs Reayat Khan and others".
(2) Suit No. 19-A of 2010 titled "Nadar Khan and others Vs Reayat Khan and others".
' From the Court of Mrs Tania Ha,shmi, Civil Judge-II, Karak to some other Court preferably in District Nowshera, Mardan, Charsadda, Swabi or Peshawar.
2. The reason given in the application for transfer of the above cases was favouritism of learned trial Court on. Plaintiffs' side, on the basis that one Mr. Abdur Rauf Khan, who is son of Nadir Khan, the plaintiff/respondent, serving as District & Sessions Judge, D.I.Khan from where the said learned judge belongs. The allegations against the trial Court are general in nature. The main criticism was the influence of said Mr. Abdur Rauf Khan being a District Judge over the trial Court.
3. On appearance, the learned counsel for respondents vehemently opposed the transfer application and from the very outset they submitted that the above said suits of which the transfer was sought have been decided by the learned trial Court vide its judgment and decree dated 12.07.2014 and now the said lis is pending in appeal stage, therefore, the said Transfer Application has become infructuous.
4. It appears from the record that the petitioner has not only challenged the impartiality of the trial Court on one ground but also questioned the impartiality of whole District Judiciary on the ground that son of plaintiff Mr. Abdur Rauf Khan who is District & Sessions Judge, D.I.Khan has influenced the whole District Judiciary being his colleagues or lower rank officers have joined hands and proceeds the case after prior consent of the said Mr. Abdur Rauf Khan.
5. It is pertinent to mention that this application was filed at principle seat of this Court and his Lordship Hon'ble Mr. Justice Yahya Khan Afridi passed the order dated 18.07.2014 in the following words:- "Serious allegations have been stated in the present application. Before passing any order, let the worthy Member Inspection Team shall file his comments on the assertion made in the petition, before the next date. Notice be also issued to the respondents for 01.09.2014. Office is directed to place this petition before his Lordship, the Chief Justice for the date fixed."
' On compliance the Worthy M.I.T submitted comments that are worth consideration and reproduced as under:- "Subject:- COMMENTS IN Cr. M.T.A No. 69-P/2014.
Sir,
1. In the background query of the cases, it transpired that the dispute is between two brothers on a property.
2. The cases, for which transfer is sought, have been disposed of by the trial Court on 12.07.2014.
3. These two cases were the oldest cases on the diary of the Court and under the directives of National Judicial Policy, the Court was bound to dispose them on priority.
4. The learned Presiding Officer of the Court in question had in clear terms denied to have ever been approached or influenced in the case.
5. Submitted, please. Member Inspection Team 24.07.2014"
' The said case was fixed bore his Lordship the Hon'ble Chief Justice Mazhar Alam Khan Miankhel, whom vide order of dated 01.09.2014, sent the case to this bench for disposal.
6. The prayer made by the petitioner is not limited to the transfer of the case from the Court of Mrs. Tania Hashmi, Civil Judge-II, Karak to any other Court of competent jurisdiction in the said District but thrown the net against whole District Judiciary of Karak and also involved the appellate Court in the said Transfer Application and sought transfer of the suit, which is now in appeal stage at District Karak, to the other District of the province.
7. To resolve this controversy, I would like to discuss the instant application on factual as well as on legal aspects.
8. The mechanism for transfer of suit, appeal or proceedings of the case is given in Section 24 of the, C.P.C., which is reproduced as under: "24. General Power of transfer and withdrawal.--(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage--
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) Withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.
(2)
(3)
(4)
' The bare reading of the above provision reveals that the High Court and District Court transfer the suit to the Court, firstly subordinate to that Court and secondly transferee Court must be competent to try or dispose of the same.
9. The applicant in the instant application seeks transfer of the cases/appeals to the Court of District Peshawar, Swabi, Mardan, Nowshehra, Charsadda, none of them comes within the administrative/territorial jurisdiction of this bench. The Courts of District Peshawar, Swabi, Mardan, Nowshehra, Charsadda, to which the applicant sought transfer of the cases, are neither subordinate to this Bench nor having the territorial jurisdiction over the same, as such the application of the applicant is legally not sustainable.
10. No doubt Mr. Abdur Rauf Khan District & Sessions Judge, D.I.Khan is the son of Nadir Khan, plaintiff/respondent but it does not mean that he could influence the learned judges. Perusal of the case file and comments/report of M.I.T clearly indicate that Mst. Tania Hashmi has performed her legal obligation in the instant case according to law. Moreover, other presiding officers of District Judiciary have also performed their duties according to law and nothing indicate the influential act as alleged by the applicant.
11. The allegation levelled against Mr. Abdur Rauf Khan, by the petitioner is baseless and without substance. The apprehension of the petitioner is general in nature and without cogent reason.
Mere suspicion of bias is not sufficient for transfer of cases from one Court to other.
12. The applicant has failed to put forth any convincing reason which may justify the Court for the transfer of the case from the Court of District Judge Karak to any other judge. The reason that the applicant lacks the confidence on overall judiciary on the simple!, ground that Mr. Rauf Khan is serving as District and Sessions Judge, is not a valid ground.
13. In this view of the mater, the instant application being bereft of merit is dismissed.