Muhammad Ikhlaq Khan, respondent, filed a suit titled "Muhammad Ikhlaq Khan v. Shahnaz Bibi" in the Civil Court of Gujranwala, seeking a declaration and injunctive decree on the ground that he is owner of Toyota Wagon No. 1767/LHP which was taken by Mst. Shahnaz Bibi defendant--petitioner for the purpose of plying on payment of rent but subsequently had started claiming ownership right therein, hence, the plaintiff may be declared as owner of the vehicle and defendant may be restrained from snatching the wagon by force in an illegal manner. This suit was filed on 23-12- 1992.
2. On coming to know of the filing of the said suit, Mst. Shahnaz Bibi filed the title application before this Court seeking transfer of the suit from the Court of learned Civil Judge, Gujranwala to a Court of competent jurisdiction at Lahore or Sheikhupttra on the grounds that she is a Pardanasheen lady; that she is pregnant and apprehends that she will be killed by the respondent if she goes to Gujranwala to pursue the case with which consequence she has been threatened many-a-times.
In this application a prayer has also been made for stay of the proceedings before the learned trial Court. The application came up for hearing before the Hon'ble - Chief Justice on 27-4-1993, on which date, the following order was passed:--- "27-4-1993: Submits that she has imminent danger to her life if she goes to Gujranwala to defend herself there in the suit filed against her by the respondent.
(2) Notice for 24th May, 1993.
(3) Subject to notice proceedings in the suit titled Muhammad Ikhlaq Khan v. Shahnaz Bibi pending before the learned Civil Judge, Gujranwala are stayed meanwhile."
3. Service of the respondent No.2 was effected in the transfer application whose learned counsel appeared in Court on 24-5-1993 and informed the Court that similar transfer application has been moved by the petitioner before the learned District Judge, Gujranwala and that she also filed a Writ Petition No.3959-93 in this Court. Reply to the application in writing was also filed by the respondent through his learned counsel;
4. As there is an allegation against the petitioner that a similar application moved before the District Judge, Gujranwata has been rejected and this fact has been concealed, the Hon'ble Chief Justice called for a report in this behalf from the learned District Judge, Gujranwala. In the report dated 27-6-1993 submitted by the District Judge, Gujranwala, it has been stated that no such application has been filed in that Court.
5. Learned Civil Judge after the proceedings have been stayed by this Court, proceeded ex parse against the petitioner due to his absence on 17-7-1993 recorded ex parte evidence on 21-9-1993 and decreed the suit ex parte on 28-10-1993.
6. Mr. Asghar Ali Chaudhry, Advocate, has appeared on behalf of the petitioner whereas Mr. Yusuf Ali Khan, Advocate has appeared on behalf of the respondent.
7. Learned counsel for the petitioner has contended that the proceedings in the suit having been stayed by this Court on 27-4-1993 the learned Civil Judge had no lawful authority to proceed with the suit thereafter consequently the order of taking of ex pane proceedings, recording of ex pane evidence and passing of ex parte decree shall be void and a nullity in the eyes of law and the suit shall be deemed to be still pending before the lower Court which is liable to be transferred to a Court of competent jurisdiction neither at Sheikhupura or Lahore as the petitioner is a Pardanasheen lady and there is a sufficient apprehension that if she goes to Gujranwala to defend herself in the suit filed against her by the respondent, she will be murdered.
8. Mr. Yusuf Ali Khan, Advocate, learned counsel for the respondent has vehemently contended that the suit has been decided in favour of the respondent though ex pane, hence there is no lis pending before the trial Court as such the transfer application has become infructuous; that proper remedy for the petitioner is to file an appeal against the said decree before the District Court or for setting aside of the ex parte decree before the trial Court; that even otherwise there are no grounds for ordering transfer of the suit as the petitioner is a woman who is usually seen at public places and has adopted modern ways of life and is not at all a Pardanasheen lady; that the application has neither been properly framed nor entertained; and that there is no threat to life of the petitioner as alleged by her, therefore, no case for transfer of the suit has been made out, hence, the petition may be dismissed.
9. I have considered the argument addressed at the bar and have perused the record. It is admitted position between the parties that the proceedings before the trial Court in the suit filed by the respondent had been stayed by this Court vide order dated 27-4-1993 therefore all the proceedings taken subsequent thereto shall be deemed to be void ab initio and the suit shall still be deem-.d to be pending before the trial Court irrespective of the fact that the ex pane decree has been passed by the learned trial Court, as the; void proceedings/orders decrees need not be formally set aside. It has been held in case Karam Ali and others v. Raja and others PLD 1949 Lah.
100, that stay order issued by the superior Court becomes effective the moment, it is issued and it is not necessary that it should be served upon the Court or party as well. Proceedings taken by the learned trial Court after 27-4-1993 hence are set aside as being coram non judice and hence nullity in the eyes of law with the result that the suit shall be deemed to be still pending before the trial Court, as such the transfer application is still a live issue and does not stand fructified and shall have to be decided on merits.
10. The prayer for transfer of the suit has been made on the ground that the petitioner is a Pardanasheen lady; that there is enmity between the parties and she has danger to her life at the hands of the respondent if she goes to Gujraawala to defend the suit. Every Muslim woman is presumed to be a Pardanasheen lady unless otherwise proved. Merely because the petitioner has adopted modern ways of life does not mean that the petitioner is not a Patdanasheen lady but at any rate the fact remains that the petitioner is a lady and balance of inconvenience has to be seen vis-a-vis the respondent who is a male. The factum of litigation is admitted and there appears to be pitched litigation and enmity between the parties. Even before this Court serious allegations even relatable to her character are being levelled, during the course of arguments, to Which a serious exception has been taken by her counsel. In view of the above position, it is definitely in the interest of justice that the suit is heard at a place where the petitioner resides. The technical objections regarding entertainment of the application are of no legal efficacy and even otherwise are misconceived. Application as framed and entertained is quite in accordance with law.
11. Resultantly, the petition is accepted and it is ordered that the suit title ' Muhammad Ikhlaq Khan v. Shahnaz Bibi' filed by the respondent is withdrawn from the learned vial Court at Gujranwala and is transferred to the Court of learned Senior Civil Judge, Sheikhupura for expeditious disposal thereof Learned transferee Court shall proceed from the stage at which the suit was on 27-4-1993.
There shall be no order as to costs.