1. ' These two applications under section 151, C.P.C, read with High Court Establishment Orders and Articles 192 and 196 of the Constitution of Pakistan, 1973, have been filed by the applicant/plaintiff in Suits Nos.329/94 and 575/94, seeking transfer of the said two suits and the interlocutory applications filed therein from the file of the learned Single Judge, who is an Additional Judge of this Court and sitting on the civil original side according to roster fixed by me, to a permanent Judge of this Court on the following grounds:
(a) to meet the ends of justice;
(b) that justice should not only be done but seen to be done:
(c) so that the plaintiff should not be prejudiced in any manner.
2. ' Since both the applications involve common facts and grounds and were heard together, the same are being disposed of by this order.
3. ' The facts, relevant for disposal of these two applications, are that under agreements dated 1-3- 1972, 1-10-1977 and 1-10-1978, executed between the parties, the defendants, Pakistan International Airlines Corporation (P.IA.) had appointed plaintiff as their sponsor agent on commission basis in the Eastern and Western Provinces of the Kingdom of Saudi Arabia on the terms and conditions mentioned in the said agreements. Subsequently, the defendants (P.IA) terminated the sponsorship agency of the plaintiff in both the said Provinces by serving termination notices dated 16-3-1994 and 25-7-1994 on the plaintiff, by invoking the relevant clauses in the agreements executed between the parties.
4. ' The plaintiff thereupon filed the said two suits and also filed therein two Miscellaneous Applications under Order 39, rules 1 and 2, C.P.C. For interim orders staying of the operation of the said termination notices and directing the defendants (PIA.) to continue sponsorship agency of the plaintiff.
5. ' The suits were admitted and the interlocutory applications for grant of interim injunction came up before the learned Single Judge. The learned Single Judge (Mr..Kamal Mansur Alam, J.) directed issuance of notice to the defendants for 25-5-1994 in Suit No,329/94 and ordered status quo to be maintained till then. Similarly, in Suit No,575/94, the learned Single Judge on 18-9-1994 directed issuance of notice and ordered status quo to be maintained till then.
6. ' Thereafter the matter was adjourned on several dates of hearing and the status quo order granted earlier was continued. The matter again came up before the learned Single Judge (Mr. Hussain Adil Khatri, J.) on 10-12-1994 when the learned Judge ordered not before me, and the case was adjourned and no order extending the status quo was passed on the said date.
7. ' Thereafter, the case came up for hearing of the Miscellaneous Applications on 30-10-1994 before the learned Single Judge (Mr. Deedar Hussain Shah, J.) who is an Additional Judge of this Court and sitting on the civil original side of this Court according to roster fixed by me. On this date, a request for adjournment was made to the learned Judge on behalf of the plaintiff on the ground that his counsel, Mr. Sharifuddin Pirzada, was busy before the Supreme Court at Islamabad. The learned Judge granted the request and, by consent, adjourned the matter to 6-11-1994 and ordered status quo to continue till then. The matter again came up before the same learned Single Judge on 10-11- 1994, when Mr. Sharifuddin Pirzada requested for an adjournment on the ground that as he had been busy before the Supreme Court he could not prepare the. Matter. The learned Judge granted the request and the matter was adjourned to 17-11-1994 and the status quo order passed earlier was ordered to continue till then. Thereafter, the matter came up before the learned Single Judge (Mr. Deedar Hussain Shah, J.) on 23-11-1994 for hearing of the applications and was again, by consent, adjourned to 30-111994. While so adjourning, learned Single Judge, however, passed no order for continuing the status quo granted earlier.
8. ' The applicant-plaintiff, in the meanwhile, 'filed two applications (C.MA. 5891/94 in Suit No,575/94 and C.MA. 5893/94 in Suit No,329/94) on 22-11-1994 seeking transfer of the said two suits and the Misc. Applications filed therein, from the file of the said learned Single Judge (Mr. Deedar Hussain Shah, J.) who, as stated earlier, is an Additional Judge of this Court, with the prayer that the same be heard and disposed of by a permanent Judge of this Court.
9. ' The said applications for transfer came before me on 23-11-1994 when notice of the applications was ordered to issue to the learned counsel for the respondents-defendants for the next day on 24-11-1994. It may be stated here that on this date viz. 23-11-1994, the learned counsel for the applicant/plaintiff requested for stay of hearing of the matter by the learned Single Judge but the same was declined by me.
10. ' To complete the narration of events, while the applications for transfer of the suits were pending before me, the matter came up before the learned Single Judge (Mr. Deedar Hussain Shah, J.) on 30-11-1994 when, by consent, the matter was adjourned to 15-12-1994, but the request of the learned counsel for the applicant-plaintiff for extending the interim order of status quo was declined by the learned Single Judge. Against this order of the learned Single Judge, the applicant/plaintiff preferred High Court Appeals Nos. 149 and 150 of 1994 and also filed Miscellaneous Applications (C.M.As. Nos.1266/94 and 1268/94) therein. The appeals were admitted by a Division Bench of this Court and the matter was adjourned to 6-12-1994. On 6-12-1994, when the matter came up before the Division Bench for hearing of Miscellaneous Applications, the Division Bench, by consent of the learned counsel for the parties, set aside the impugned orders dated 23-11-1994 and 30-11-1994 passed by the learned Single Judge and remanded the matter to the learned Single Judge, leaving it open to him to decide the plaintiff's applications, for staying the operation of the impugned action, on merit after giving reasons for the order that may be passed by him on such applications and both the appeals were disposed of accordingly.
11. ' After remand, the matter came up before the learned Single Judge on 13-12-1994, when request for adjournment was made on behalf of the learned counsel for the plaintiff. The learned Single Judge adjourned the matter to a date in office. Thereafter, the matter again came up before the learned Single Judge on 15-12-1994, when yet another request for adjournment was made on behalf of the learned counsel for the plaintiff and the matter was adjourned to 11-1-1995. Thereafter, when the matter came up before the learned Single Judge on 11-1-1995, the matter was again adjourned to a date in office at the request of the learned counsel for the plaintiff, on the ground that the transfer applications were pending before the Chief Justice. It may be stated here, that thereafter no further order appears to have been passed in the matter by the learned Single Judge.
12. ' Regarding the maintainability of these applications seeking transfer of cases from the learned Single Judge (Mr. Deedar Hussain Shah, J.) who is an Additional Judge of this Court and was in lawful seizen of the matter for judicial hearing according to roster fixed by me, to another Judge of this Court, Mr. Sharifuddin Pirzada, learned counsel for the applicant-plaintiff, relied on Rule 11 of the Sindh Chief Court Rules, as applicable to the High Court, and contended that under the said rule, the Chief Justice was competent to transfer the case from one Judge to another Judge and, in support, placed reliance on the cases reported as Crown v. Abdul Aziz and S. Israr Hussain (PLD 1952 Sindh 1) and Siddiq Wahab v. Syed Iftikhar Hussain PLD 1956 (W.P.) Karachi 291.
13. ' Regarding the grounds for transfer, referred to earlier in the order, the learned counsel for the applicant-plaintiff first contended that the learned Single Judge before whom the matter was pending, is an Additional Judge of the High Court and is not confirmed Judge. He next contended that the said learned Single Judge belonged to a political party and had contested the elections to the Provincial Assembly of Sindh on the ticket of Pakistan People's Party (P.P.P.) in the year 1993 prior to his appointment and, therefore, his inclination would be towards the present Government, formed by the said party. It was next contended by the learned counsel that the conduct of the learned Single Judge would show that as soon as he learnt about the filing of the transfer applications in the present matter, his attitude became adverse and the ad interim order of status quo granted earlier, which was being continued from time to time, was not continued by him.
14. ' While elaborating the first contention, the learned counsel submitted that the Additional Judge of the High Court is not on the same plane as a confirmed Judge and, therefore, it is not desirable that he should hear the Case in which the Government is a party, because such a Judge would suffer from lack of confidence due to uncertainty of his term of office and has to depend for his confirmation on the Government. In this connection, the learned counsel referred to the following cases from the Indian Jurisdiction:--
(1) Krishan Gopal v. Prakashchandra and others (AIR 1974 SC 209);
(2) In re: The Special CouriBill. 1978 (AIR 1979 SC 478); and
(3) S.P. Gupta and others v. President of India and others (AIR 1982 SC 149).
15. ' The learned counsel in this connection also referred to an article "We the People" by Palkiwala pages 227 and 230, (2) Commentary on Constitution of India by Basu pages 261, 263 and 269 Silver Jubilee Edition, and (3) Commentary of Indian Constitution by Sirvai pages 2370, 2372 and 2639 of the 3rd and 4th Editions. The learned counsel also referred to the speeches of Quaid-e-Azam, compiled by Rafiq Ahmed, wherein one of his speeches at page 405, Quaid-e-Azam had not approved appointment of Judges of the High Court as Additional Judges.
16. ' Elaborating his second contention the learned counsel submitted that justice should not only be done but seen to be done. He pointed out that the learned Single Judge hearing the above suits has been connected with the Pakistan People's Party (P.P.P.), which is the ruling party at present, and, therefore, he would be inclined to be sympathetic to the Government and as in both the cases, sponsorship-agency of the plaintiff had been terminated at the behest of the Government, plaintiff was justified in apprehending that justice would not be done to him if the matters are heard and disposed of by the said learned Single Judge. In this connection, he also submitted that Article 4 of the Judicial Code of Conduct, as published in the Journal Section of PLD 1967 Jour. 97, would show that .a Judge should decline resolutely to act in a case involving his personal interest, howsoever slightly, or that of a near relative or close friend. From this, the learned counsel pointed out that the learned Single Judge himself should have declined to hear the matter.
17. ' Regarding his third contention, the learned counsel for the applicant-plaintiff pointed out that when the matter came up before the said learned Single Judge on 23-11-1994, Mr. Zaidi, Advocate, on behalf of Mr. Sharifuddin Pirzada, the learned counsel for the plaintiff, informed the learned Single Judge that the transfer applications had been filed whereupon the matter was adjourned by him to 30-12-1994, but on the said date no order was passed by the learned Single Judge to continue the interim stay granted earlier. From 'this, the learned counsel submitted that this conduct on the part of the learned Single Judge showed that the attitude of the learned Single Judge was adverse: The learned counsel also argued that such subsequent events can be taken into consideration and, ix support, placed reliance on the case of Mst. Amina Begum and others v.
18. Mehar Ghulam Dastagir PLD 1978 SC 720.
19. ' Mr. Khalid M. Ishaque, the learned counsel for the respondents-defendants, opposing the transfer applications, at the very outset submitted that the applications were not maintainable as the Chief Justice has no jurisdiction or powers conferred upon him whereby he can order transfer of an individual case from one Bench to another Bench. He argued that no such power is contained in section 24, C.P.C. And the same would not be applicable as it deals with subordinate Courts and not High Courts. He also argued that as far as the question relating to jurisdiction, powers and privileges of individual Judges of the High Courts are concerned, the same are all on equal plane, and even an Additional Judge of the High Court cannot be treated as subordinate to Chief Justice.
20. ' He referred to rule 11 of the Sindh Chief Court (Original Side) Rules and section 4 of the High Court of West Pakistan Establishment Order, 1955. He also referred to the President's Order 8 of 1970 (High Court Establishment Order, 1970), and contended that in pursuance of the abovesaid provisions, the. Power of transfer of a case from one High Court to another High Court is vested in the Supreme Court only and that none of the above provisions show if any power is vested in the Chief Justice of the High Court whereby he can transfer an individual case from one Judge/Bench to another Judge Bench. The learned counsel further argued that the Chief Justice can only direct the assignment of the roster, cause list, and constitute the Benches for hearing of cases of a particular class. In this connection, he placed reliance on the following cases:
(1) Siddiq Wahab v. Syed Iftikhar Hussain (PLD 1956 (W.P.) Karachi 291);
(2) Crown v. Abdul Aziz and S. Israr Hussain (PLD 1952 Sindh 1); and
(3) Zikar v. The Government of State of Madhya Pradesh (AIR 1951 Nagpur 11).
21. ' The learned counsel further argued that on merit also, the prayer in the present applications cannot possibly be granted as the facts of the case would show that there is nothing on the record to indicate that the learned Single Judge has acted in a manner prejudicial or adverse to the interest of the present applicant-plaintiff. He also argued that the Government is not a party to the present case and, therefore, the inference cannot be drawn against the Government nor any such observation can be made. He also argued that a mala fides of fact is to be pleaded by a party and in such case the party against whom the mala fides is alleged, has to be impleaded. In support the learned counsel placed reliance on the case of Amanullah Khan and others v. The Federal Government of Pakistan PLD 1990 SC 1092. The learned counsel further placed reliance on the case of Habib-ul-Wahab Al-Khairi and others PLD 1995 Lahore 27.
22. ' I have duly considered the submissions of the learned counsel for the parties. It would be only appropriate in the circumstances of the case that the point of maintainability of these applications be taken up first. In this connection, the first question that arises for determination is whether a Chief Justice of a High Court, with special reference to this Court, has the power to transfer an individual case from one particular Bench to another Bench. In this matter, the two suits on original side are involved. Accordingly, I would first refer to Rule 11 of Sindh Chief Court Rules (O.S.). The said Rule reads as under:-- "11. All suits and proceedings instituted on any of the several sides of the Civil Original Jurisdiction of the Chief Court, shall be heard before the Chief Judge or such Judge or Judges as the Chief Judge shall from time to time nominate for that purpose."
23. ' Reference may also be made to section 9 of the President's Order 8 of 1970. This order of the President was promulgated on 16th June, 1970, and section 9 of the said Order provides that on an application by any of the parties, and after giving notice to the parties, and hearing such of them as desire to be heard, or of its own motion, the Supreme Court may at any stage transfer for disposal any proceedings pending before a new High Court to another new High Court. Section 7 of the Order also provides that the law in force immediately before the appointed day relating to the powers of the Chief Justice and of Single Judges and Divisional Courts of High Court of West Pakistan, and with respect to all matters ancillary to the exercise of those powers, shall, with the necessary modifications, apply in relation to each of the new High Courts. Similarly, the provisions of section 4 of the High Court of West Pakistan (Establishment) Order, 1955, provides as under:-- "4. Chief Justice to have power to transfer proceedings and to assign areas to the Benches.--(1)
24. The Chief Justice shall have power to make provision for all or any of the following matters, that is to say:-
(a) assigning areas to the Benches at Karachi and Peshawar in relation to which each Bench shall exercise jurisdiction vested in the High Court:
(b) transferring proceedings pending immediately before the commencement of this Order in--
(i) the High Court of Judicature at Lahore;
(ii) the Chief Court of Sindh;
(iii) the Judicial Commissioner's Court in the North-West Frontier Province;
(iv) the Judicial Commissioner's Court of Baluchistan; and
(v) any other Court functioning as High Court in any other specified territory; to the High Court or to a Bench at Karachi or Peshawar or to a Circuit Court; and
(c) for all matters incidental, supplemental and consequential thereto.
(2) The Chief Justice shall have power to determine what cases and what classes of cases shall be disposed of by the Judges nominated to Circuit Courts."
25. The cumulative effect of the reading of the above provisions would show that the powers of the Chief Justice involve the power only to assign the cases to different Benches by fixing assigning roster and to allocate a class of particular cases to a Bench and to constitute Benches. This power can at the most be said to be an administrative power. As regards the transfer of an individual case, the power vests with the Supreme Court only, and that too, with regard to transfer of case from one particular High Court to another High Court. In the above-cited case of Siddiq Wahab PLD 1956 Karachi 291, their Lordships have been pleased to hold as under:-- "Moreover, under the proviso to rule (1) of Chapter 10-A of the Rules and Orders of the High Court, Volume V, the constitution of Benches is the exclusive concern of the Chief Justice. The Chief Justice, High Court of West Pakistan in exercise of the powers conferred by Article 4(1)(c) of the High Court of West Pakistan (Establishment) Order, 1955 read with the above rule, assigned the Roster and Cause-Lists of the. Karachi Bench to one of the Judges sitting at Karachi who exercises these powers by reason of this rule and Article 11 of the High Court of West Pakistan Order, 1955."
26. ' Similarly, in the case of Crown v. Abdul Aziz PLD 1952 Sindh 1, a Full Bench of the then Sindh Chief Court went on to observe that there is no provision of law by Which a case can be transferred from one Judge of a High Court to another Judge of the same High Court at the instance of parties after a judicial hearing on such grounds and in such manner as cases are transferred under section 24 of the Civil Procedure Code or section 526 of the Criminal Procedure Code. It may further be observed that the rules made by the High Court only provide for convenient exercise of the jurisdiction of the Court but do not give any special judicial power to the Chief Justice over other Judges of the High Court. Under the rules, the jurisdiction of the High Court is exercised by one or more Judges according to the nature of the cases but a decision by a Single Judge or a Division Court given in accordance with the rules of the Court is a decision of the Court itself.
27. ' Thus the point which requires consideration is, whether the power to regulate the sittings of the High Court which the Chief Justice undoubtedly possesses, can be invoked for withdrawing and transferring an individual case of which a particular Judge/Bench is seized of for hearing judicially.
28. Indeed, the power to regulate the sittings of the Court is an administrative power and does not afford any basis for regulating the mode of hearing of a case by a Bench properly seized of it. The power to withdraw and transfer of a case from such a Court, without its concurrence, would thus amount to a power to prevent the exercise of jurisdiction by that Court which can only be done by virtue of superior power of control or correction for which the authority must be found either in an express provision or by necessary implication. I find no such express provision and in my view there is no warrant for any such implication. The above view finds support also in the case reported as Zakir v. Government of State of M.P., AIR 1951 Nagpur 11.
29. In the light of the above discussion, I am of the view that the Chief Justice is not judicially empowered nor has any superior authority vested in him to transfer an individual case from one Bench which is lawfully seized of it according to roster and is hearing it judicially, to another Bench of the same High Court at the instance of the party. Accordingly, I find the present applications to be not maintainable and the same merit dismissal.
30. ' Having held the applications to be not maintainable, this Court would not be ordinarily called upon to decide the transfer applications on merit. However, since both the learned counsel argued the transfer applications on merit at length, I deem it appropriate to deal with the same also.
31. ' The first point urged by the learned counsel for the applicant-plaintiff was that the learned Single Judge being an Additional Judge was like a probationer and he would not have the confidence due to uncertainty of the term of his office and as he has to depend for his confirmation on the Government, he would not act independently and, therefore, should not hear such matters wherein the Government was party, specially when he had previously been associated with the political party, which forms the present Government. In support, the learned counsel referred to the case- law cited above. The first case referred to by him is reported in AIR 1974 SC 209. In this case, it was held by the Supreme Court of India that concluding words "but shall not otherwise be deemed to be a Judge of that Court" in Article 224-A only indicates that in matters not relating to jurisdiction, powers and privileges such person shall not be deemed to be a Judge of that Court. However, in.
32. Article 197 of Islamic Republic of Pakistan, no such condition is provided. Moreover, the case under reference before the Supreme Court of India pertains to an election petition. The other case cited by the learned counsel for the applicant-plaintiff is AIR 1979 SC 478. This case also would not be applicable as the facts of this case are different from the present case. The third case relied on by the learned counsel for the applicant-plaintiff is that reported in AIR 1982 SC 149. In this case, it was held that an Additional Judge of High Court is not deemed to be a permanent Judge of the said Court. However, at page 168 of the judgment, their Lordships have been pleased to observe as under:-- "An Additional Judge is certainly not on probation in the sense that his service cannot be terminated before the expiration of his term, unlike a probationer who can be sent out at any time during the period of probation. It would also not be open to the Chief Justice of the High Court or the Governor of State or the Chief Justice of India to sit in judgment over the quality of the work turned out by the Additional Judge during his term, because that would be essentially an appellate function which can be discharged only by the Court entitled to hear appeals from the decisions of the Additional Judge."
33. ' Also at page 170 in the said judgment, it has been observed as under:-- '"The Additional Judges are persons having the same high order of character integrity and legal ability as is required in the case of permanent Judge. The standards for making appointment as Additional Judge or as permanent Judge are not different. Furthermore Additional Judges accept office as permanent Judges in accordance with that practice."
34. The above discussion would, indeed, show that Additional Judges of the High Court are deemed to be on the same plane and enjoy the same powers, jurisdiction, authority and privileges as of a permanent Judge. The Additional Judges cannot be treated pari materia with the probationers.
35. ' In the case of Habib-ul-Wahab Al-Khairi PLD 1995 Lahore 27, it was held by a Division Bench of the Lahore High Court, that persons so appointed having been Advocates of the High Court with required period of practice was enough for the concerned Authorities to recommend their names for appointment as Judges of High Court. Appointment of such persons therefore, had been made accordance with Constitution and no Constitutional provisions had been violated. Question whether or not some of such persons were practising Advocates of High Court being a question of fact could not be determined by High Court in the exercise of its extraordinary jurisdiction under Article 199 of the Constitution. In the same case, their Lordships have further been pleased to hold that being a member of a political party is not a disqualification for a member of the legal fraternity to be a Judge of High Court, if he is otherwise qualified under the Constitution to hold the office of Judge of the High Court. In the same case, it was also held by their Lordships that every citizen has the fundamental right to be a member of a political party of his choice. In view of the above discussion on this point, I am of the considered opinion that the appointment of the learned Single Judge as Additional Judge does not place the learned Single Judge as inferior to any permanent Judge.
36. ' With regard to the subsequent conduct of the learned Single Judge, as urged by the learned counsel for the applicant-plaintiff, suffice it to say that on 23-11-1994 when Mr. Zaidi, Advocate, had appeared before the learned Single Judge, the matter was adjourned without extending ad interim stay granted earlier, and there is nothing on the record to indicate, nor it is the case of the applicant-plaintiff, that Mr. Zaidi had asked for extension of stay. Therefore, no extension could be granted on the next date, i.e. 30-11-1994, as the ad interim stay had not been operative till that date.. Even otherwise, it may be observed that very surprisingly the applicant-plaintiff had no grievance against the learned Single Judge, nor according to them he was incompetent to hear the matter during the time the ad interim stay was being extended. That being so, even on merit, I find no substance in the grounds urged for transfer.
37. ' In the light of the above discussion and considering all the circumstances appearing in the case, as pointed out above, I find no merit in these transfer applications and dismissed the same . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.