WAZIR SHAKEEL AHMED, J.--- Through this appeal the appellant has called in question the judgment/order of Additional District Judge Gilgit dated 16-9-2015 whereby the learned trial court dismissed the petition/application of the appellant vide impugned judgment.
2. Brief facts of the case are that the present respondent had filed a civil suit under Order XXXVII, Rules 1 and 2, C.P.C. for recovery of 800,000/- along with profit 16% from lite institution of the suit till the satisfaction of the decree before the court of District Judge Gilgit . The above suit was assigned to the learned ADJ Gilgit for further disposal. The learned ADP trial court proceeded with matter and duly got framed number of issues in the light of divergent pleadings. The appellant before recording of any evidence filed an application challenging the jurisdiction of trial court which was dismissed vide impugned judgment/order, hence this appeal.
3. It is expedient to go through the relevant provision of Order XXXVII Rule 1 which is reproduced herein under for ready reference:-
1. APPLICATION OF ORDER This order shall apply only to the High Court and to the District Courts and to any other Civil Courts specially notified in this behalf by the High Court.
4. It is crystal clear that the provision of Order XXXVII Rule 1 is applicable only to this Court and the District Courts are of course to any Civil Courts specially notified in this behalf by High Court and there is no provision of assigning of any matter falling under the purview of Ordr XXXVII Rules 1 and 2, C.P.C. Reliance can also be made to a case titled Shaik Siraj v. Habib Bank Limited cited in 1969 SCMR page 784.
5. The provisions of sections 21 and 22 of Civil Courts Ordinance 1962 are also relevant which are reproduced herein under as:-- 21:- Temporary vacancy of office of District Judge. In the event of the death of a District Judge or of his being prevented from performing his duties by illness or other cause, the Additional District Judge, if any, or in the absence of the Additional District Judge from the district, the senior most of the Civil Judges at the headquarters, shall assume charge of the district without interruption of his ordinary jurisdiction and while so in charge shall perform the duties of the District Judge with respect to the filing of the suits and appeals, receiving pleadings, execution of processes and the like, and shall be designated Additional District Judge or Civil Judge, as case may be, in charge of the District and shall continue such charge until the office of the District Judge has been resumed or assumed by an officer duly appointed thereto.
22:- Delegation of Powers of the District Judge. Any District Judge, leaving headquarters and proceeding on duty to any place within his jurisdiction or in the event of his absence from the district on leave may delegate to the Additional District Judge or in the absence of an Additional District Judge to the senior most of the Civil Judges at headquarters, the powers of performing any of the duties enumerated in section 21 that may be emergent and such officer shall be designated Additional District Judge or Civil Judge, as the case may be in charge of the district.
6. It can easily be gathered from the above sections 21 and 22 that only Additional District Judge or in absence of Additional District Judge from the District the senior most Civil Judge at headquarter shall assume the charge of District Judge without interruption of his original jurisdiction in the event of death of District Judge or of his being prevented from performing his duties by illness or other causes, likewise Additional District Judge under section 22 of the above Ordinance, 1962 may in case of leaving the head quarter and proceeding on duty to any other place or in the event of as absence from the district on leave may delegate to Additional District Judge or to the senior most Civil Judge of Civil Judges of the headquarter delegate the powers of performing of any of duties enumerated in section 21 of the above Ordinance .
7. The present facts of case in hand are entirely different as the learned Additional District Judge Gilgit was not adjudicating on the present suit filed under Order XXXVII, Rule 1 and 2, C.P.C. through delegation of any power under sections 21 and 22 supra rather the matter was assigned to him by the learned District Judge as routine business as against the mandate of Order XXXVII Rules 1, 2 .
Reliance can be made to a judgment cited in PLD 1969 (sic) 1064.
8. In the light of what has been discussed above, we are inclined to accept this appeal and set aside the order of Additional District Judge dated 16-9-2015 and hold the matter deemed to be pending before the District Judge who shall adjudicate on the matter and resume proceedings from 12-9-2015 on wards. The parties shall appear before the Court of District Judge Gilgit on 05- 92016. File.