MUHAMMAD HALEEM, J.-----We are called upon to answer the following question referred to by the late Chief Justice: "Whether this Court has power to transfer a family suit from one Family Court to another?"
2. The facts which have led to the filing of the transfer application are these:-----The parties, who are Sunni Muslims, were married at Kotri on 3rd June 1972. They lived together for 6 months and from the wedlock a son was born on 30th April 1973, but it appears that thereafter the relations became strained as the parents of the respondent prevented the applicant from meeting her, whereafter the applicant filed Family Suit No. 1962/73 in the Court o1 VIII Civil Judge, II Class, Karachi on 15th December 1973 for restitution of conjugal rights. The respondent also filed Family Suit No. 17/74 on 15th January 1974 in the Court of the Civil Judge at Kotri for the recovery of prompt dower amounting to Re. 5,000 and for the payment of maintenance, The applicant on 18th March 1974 moved this Court for the transfer of the suit from the Court of the Civil Judge, Kotri to the Court at Karachi trying his suit. This relief is sought under section 24 read with section 10 and section 151, C. P.
C. When the application was filed the office objected to the competency of the application, to which the counsel for the applicant replied that either it may be treated as a petition or in the alternative he may be permitted to withdraw it. With this note the matter was put up in Court and the counsel on 10th May 1974 took time till 17th May, but again when the matter was put up on 17th the learned counsel urged before the Chief Justice that he was till anxious to argue that the application was maintainable, and since the learned Chief Justice was doubtful himself as to whether such an application should be competent he referred the question for decision to a Division Bench.
3. Without, amending the application, the learned counsel for the applicant sought our leave to invoke the remedy under Article 203 of the Constitution and we allowed him to do so since doubt was expressed as to whether this article would include within its concept the power to transfer a family suit. It is the West Pakistan Family Courts Act, 1964 which governs the trial of a family suit and by section 17, the provisions of the Code of Civil Procedure are made inapplicable, except such of them which are held to l be applicable. Section 24 is not one of them and, therefore, the High Court is not empowered to transfer a family suit either by reference to section 24 or section 151, C. P. C.
The Act is silent so far as the transfer of family suits is concerned. The late Chief Justice in Mst.
Khairun Nisa v. Syed Abdur Rahim (PLD 1973 Kar. 237) expressed his doubt in the following words;-- -- "I entertain the gravest doubt on the question whether the power of supervision includes the power of transfer and I am referred by learned counsel to two cases of the Lahore Bench of the West Pakistan High Court reported as Mst. Gaman v. Taj Din PLD 1968 Lah. 987 and Mst. Safia Begum v.
Abdul Hamid PLD 1968 Lah. 1358, respectively. Both these cases are Single Judge cases. The former case has dealt with the question at some length and the learned Judge came to the conclusion that there is power to order transfer. In the second case, however, the discussion is somewhat briefer and the main portion of the judgment deals with the question whether judicial interference is permissible. Having come to the conclusion that it was not and that only administrative control was contemplated the learned Judge appeared to have assumed that this would include a power of transfer. With the utmost respect I am at least doubtful that that is a correct position."
Therefore, this reference is the outcome of the doubt expressed above.
4. Of course, the learned counsel for the applicant relied on two cases, namely Mst. Gaman v. Taj Din (PLD 1968 Lah. 987) and Mst. Safia Begum v. Abdul Hamid (PLD 1968 Lah. 1358) to support his view that the family suit could be transferred as the word "supervise" in Article 203 of the Constitution included in its concept such power. In both the cases, the relief was sought to be involved at the instance of a party and in both the cases leave was granted ex debito justitia, but in the latter case it was further observed that such relief should be granted when no other relief is available and that too in very rare and exceptional cases. However, one aspect of Article 102 of the late Constitution, which Corresponds to Article 203 of the present Constitution, was overlooked, if I may say so with respect, from an angle that it did not provide for any relief to a party. Nonetheless, the relief of transfer was given at the behest of a party, which aspect was considered in another D.
B. Case published as Karim Bakhsh v. Mst. Mubarik Jan (PLD 1970 Pesh. 169) as will be presently seen. The above cited cases were considered and it was observed as under:--- "We respectfully agree with the view expressed in the above judgment that a Family Court, constituted under the West Pakistan Family Courts Act XXXV of 1964, is a Court subordinate to the High Court, within the meaning of Article 102 of the 1962 Constitution. Likewise, we agree with the proposition that the power conferred by the Article on the High Court "to supervise and control all other Courts that are subordinate to it", being a general power and includes the control of subordinate Courts not merely administratively but also judicially.
We are also in accord with the view, taken in those judgments, that Article 102 confers upon the High Court unlimited power to correct or revise all proceedings, orders and judgments of the Courts subordinate to it, for the purpose of enforcing the law correctly and guiding or compelling the subordinate Courts to follow the law and to exercise their jurisdiction properly."
This is not all, but a limitation was imposed on the application of Article 102 while accepting that it included the transfer of suits. It was noted that Article 102 did not provide any relief which could be granted under it, nor did it refer to the qualification which may entitle anybody to apply to the Court for getting relief under it. Again, while elaborating the above limitation the D. B. Observed:--- "No doubt, in the process of supervising the conduct of the subordinate Courts it is possible that some order passed or direction given by a subordinate Court be set aside or suitably modified with the incidental result that one of the parties to a cause be benefited. The relic f n that may come to the party, however, would come to it only 1 collaterally. Moreover, it is not contemplated in the terms of Article--de 102, that the High Court should issue an order against a party to cause as such.
This also shows that the High Court i9 under this provision concerned only with the Courts subordinate to it rather than with the parties to a cause." Thereafter a question arose as to the maintainability of an application under Article 102 of the late Constitution in view of my judgment in Mst. Farida Pariveen v. Qadeeruddin Ahmed Siddiqui (PLD 1971 Kar. 118) which led to the constitution of Full Bench on the office note being put up in the case of Abdur Rahman v. Chaman Ara (PLD 1972 Kar. Lah.164) of which I was also a member, as it gave the impression that it stood in conflict with the Peshawar case. The judgment in the case was delivered by Qadeeruddin Ahmed, C. J. As he then was. Before the Full Bench, the above-cited Lahore cases and the Karachi cases were again cited. As for the two Lahore cases it was held:--- "The two cases which were transferred by two judgments given at Lahore were so dealt with because the Courts were found to be unfit for hear--ing them."
As for the decision in Mst. Farida Parween v. Qadeeruddin Ahmad Siddiqui, it was also approved on the footing that the appellate judgment was not set aside on the consideration that one of the parties was aggrieved, but because the appellate Court had to be checked and controlled since it had acted without jurisdiction. Article 102 had thus been interpreted:--- " It merely confers on the High Court the power of supervision and control over its subordinate Courts. This power has nothing to do with grievances of parties or with doing justice to them. The High Court is under this Article concerned with its lower Courts only and has to keep an eye on them so that they may not fail to do their own duties apart from the problems and interests of the parties . . . . . . Article 98 of the Constitution is one of the provisions which provides a remedy to the aggrieved party. Section 151, C. P. C. Gives overall powers to Courts for doing justice. But Article 102 merely empowers the High Court to supervise and control the Courts which are subordinate to it so that they may be guided, kept in check and even encouraged to act and conduct themselves rightly as Courts. If a party applies to the High Court under the Article it merely brings the failure, faults or dereliction of duty to the notice of the High Court and if the High Court takes action on such an application it does so for keeping the administration of justice pure and not to help the appellant. "This duty is to be performed (by the High Court) irres--pective of whether any body has been harmed or not and irrespective of whether any body will be benefited by it or not." It is easy to imagine that an action taken under this Article may be against the liking and even the private interests of both the parties to a pro--ceeding."
What therefore follows from the above is that the fundamental object of supervision is to keep the administration of justice pure, and for that purpose the High Court exercises power to correct the failure, faults or dereliction of duty, laches, defects of jurisdiction, denial of justice, bias or disability of the Court, which instances are by no means exhaustive, but not by way of any relief and irrespective of whether it causes any benefit or harm to a party either suo motu or when the defect is brought to its notice. It is in this concept that the Full Bench approved Gaman and Safia's cases.
5. Reverting now to the question as to whether the High Court has power to transfer a family suit, it cannot be denied that it has, but such power cannot be exercised by way of relief unless defect is found in the Court trying a family suit, which it is necessary to rectify, in which case the High Court would act under this provision as being responsible for the administration of justice. As to what those defects are, it is not possible to enumerate but it will depend upon the facts and circumstances of each case.
6. Mr. Mansoor Ahmad Khan, who appeared as arnicus curiae referred us to section 24, C. P. C. And urged that it contains no ground for the transfer of a case but for administering justice the Courts have on different grounds transferred the suits either suo motu or on the application of a party. He referred us to AIR 1933 Cal. 132 to impress that where an appeal was provided but had become barred yet the Court interfered with the conviction in the interest of justice which must be the sole criterion for determining whether such power should be exercised under the constitutional provision. He also referred us to 1973 Law Notes (N. U. C.) 330 but in that case merely the conclusion is given and not the reason which is hardly of any efficacy. In view of what we have observed, his approach is also the same but what we would like to emphasise here is that such relief cannot be granted ox debito justitia merely at the behest of the party and that too for its convenience in the context of what we have concluded earlier. The reference is accordingly answered and remitted to my Lord, the Chief Justice for deciding the application on merits.
ZAKAULLAH, J.-I agree.