This is an application under section 24, C.P.C. For transfer of civil suit from the Court of Mr. Muhammad Afzal Shad, Civil Judge, Lahore. The same was admitted to hearing and notice was issued to the respondent, who has appeared and contested the application.
2. The learned counsel for the petitioners argued that the petitioners moved application under Order 13; Rules 1 and 2, Order 18, Rule 2, Order 16, Rule 1 and section 151, C.P.C. It was prayed that the register of Allied Bank Limited, copy of which was Exh. P./4, may be summoned from Allied. Bank of Pakistan Regency Branch, Faisalabad and the entry in connection with draft dated 5-4-1990 be sent to Technical Services Punjab, Lahore for report as to whether the same is original or has been erased and entered subsequently. The application was not contested by the respondent and the same was allowed. The register was sent for from the Bank but the other part of the order was not complied. The petitioners accordingly moved application under section 151, C.P.C. Whereby the attention of the trial Court was drawn to this lapse but no order was passed on the application and the trial Court proceeded with the matter. It is added that the petitioners apprehended that they shall not get justice from the trial Court and moved an application under section 24, C.P.C., for transfer of the suit from the Court of Mr. Muhammad Afzal Shad, Civil Judge, Lahore to any other Court of competent jurisdiction, in the Court of learned District Judge, Lahore who sent for a report from the trial Court and after hearing the arguments dismissed the petition. Thereafter the petitioners moved the present petition. It is maintained that the facts referred to above are sufficient to create genuine apprehension in the mind of any person that the trial Court is not proceeding with the suit fairly, impartially and evenhandedly. The learned counsel for the petitioner had referred "Muhammad Nawaz v. Ghulam Kadir and 3 others" PLD 1973 SC 327.
3. On the other hand the learned counsel for the respondent argued that the transfer application was rightly and legally dismissed by the learned District Judge. The petitioners have failed to make out any case for transfer of suit to other Court. It is added that the petitioners in the application before the learned District Judge, Lahore also made allegations against the Presiding Officer but the same have not been repeated in this petition, meaning thereby that the same were incorrect. It is added that the transfer application is mala fide and the sole purpose is to prolong the adjudication of the suit.
4. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and gone through the record. The admitted position is that the application of the petitioners for summoning register of Allied Bank Limited and sending the same to the Technical Services Government of Punjab was allowed by the trial Court. This fact is clearly admitted in para. 2 of the report dated 28-1-1996 by trial Court submitted to the District Judge while in para. 10 it was stated that petitioners never made any efforts for the supply of the register to the Technical Services of the Punjab for comparison. The application having been allowed. It was the duty of the Court to ensure compliance of its order in toto. It cannot shift its responsibility to a party.
5. The argument that the allegations made in the application before the District Judge having not been repeated in the present application, therefore, the same were false is without any merit. It has clearly been pleaded in the present application that the petitioners have reasonable apprehension, that they will not get justice from the said Court. It is a matter of common knowledge that the language employed differ from counsel to counsel. The senior counsel normally avoid expursions and allegations of personal nature only for the reason that it is quite difficult to prove the same. The learned District Judge while rejecting the application failed to appreciate that the trial Court failed to carry out its own order and that when this was pointed out through application he did not pass any order. It was the bounded duty of the Civil Judge to have disposed of the application moved by the petitioner under section 151, C.P.C. The learned District Judge also failed to note the cardinal principle of dispensation of justice is that the justice should not only be done but it should seem to have been done. The facts on record clearly show failure of justice.
6. Now coming to the judgment in case of Sameer Ehsan Ullah Makhazan v. Muhammad Asif Zaman PLD 1993 Lahore 554. The same was not relevant to the present case as the rule enunciated there is applicable only where the reputation of the Presiding Officer is beyond any controversy.
The Presiding Officer, who is not enjoying confidence of the bar and general public is not entitled to get this protection.
7. The only ground which could be and which has been effectively argued by the learned counsel for the respondent is that the petitioners were out to delay the adjudication of the suit. It must be pointed out at the very outset that if this argument is correct then the learned District Judge failed to appreciate that while rejecting the transfer application he would be contributing towards delay in the decision of the suit. The petitioners were constrained to file this transfer application in this Court because they failed to have relief from the learned District Judge. In the given circumstances it was desirable that-the suit should have been transferred with a direction to the transferee Court to decide the suit expeditiously. This was in the interest of justice as well as the parties and the learned District Judge possessed, the power to issue direction. This would have effectively curved the efforts to delay the adjudication of the suit.
8. It is recorded for future guidance here that it is not the vested right of any litigant to have trial from one particular Court. It is desirable that in face of such allegations the matter is transferred to other Court because to continue the proceedings in the same Court in face of such allegations is neither in the interest of litigant nor lawyers nor the Courts. This is why every now and then nasty situations are created in Courts. It is difficult for litigant to prove the interest of the Presiding Officer in their adversary. Now where the number of Courts also not limited the approach to thrust particular Court on the litigant is clearly illogical and not conducive to the dispensation of justice.
The rule should be that the cases should be transferred frequently. It is 'necessary to ensure justice and to check corruption.
9. The upshot of the above discussion is that this application is allowed. The result is that the suit titled Nazir Ahmad v. Mian Muhammad Bakhsh (now represented by Muhammad Tahir etc.) is withdrawn from the Court of Muhammad Afzal Shad, Civil Judge, Lahore and is transferred to the Court of Kh. Hassan Wali, Civil Judge, 1st Class, Lahore. The parties are directed to appear before the learned transferee Court on 9-4-1996 while the transferee Court is directed to decide the suit expeditiously and in any case by 15-5-1996.