S. AHMED SARWANA, In support of his application for Transfer of his Civil Appeal No. 60/91 filed under Section 24, CPC, Mr. Awan, learned counsel for the applicant, basically contended that the property in dispute is situated in Shikarpur District and the defendants also reside in the same District; therefore, the proper forum for deciding the appeal is the Civil Courts situated in Shikarpur District.
2. Mr. Khan, learned counsel for the respondents opposed the Transfer Application and submitted that all the respondents reside in Sukkur as is evident from the address of the respondents given in the appeal. He added that the application for Transfer is mala fide as it has been moved ten years after filing of the appeal and that the order of the High Court, Sukkur, Bench dated 12.2.1991 in Civil Revision No. 14I /1998 relating, inter alia, to the question of jurisdiction of the Court in the matter has achieved finality and cannot be disturbed. He also urged that this application has been filed to harass, the respondents and deprive them of their right in the property.
3. It is not necessary to discuss all the contentions raised by the learned counsel as the application can be decided on one legal ground. Under Section 16, CPC suits relating to rights to or any interest in immovable property are to be instituted in the Court within the local limits of whose jurisdiction the property is situated. The place of residence of the defendant is immaterial in such cases. At the time the original suit was filed by sher Muhammad and others (respondents herein), the property in dispute was situated within the territorial limits of District Sukkur and was accordingly filed in the proper Court. The territorial limits for the purpose of jurisdiction were changed several years later.
Such change would not effect the competence of the original Court to try the suit and apparently the applicants rightly filed the Appeal before the appropriate Court in Sukkur. They cannot be allowed to blow hot in one breath and blow cold in the other on the same point at their sweet will.
4. The Civil Appeal has been pending since 1991. If the applicants had filed the appeal in .The wrong Court they should have taken corrective measures immediately. The applicants chose the District Court Sukkur as the Appellate Court which was the proper Court under the law at that time and therefore cannot now after more than 10 years urge for transfer of the appeal to Shikarpur. Further, the creation of new districts took place in 1983 and the Appeal was filed in 1991 where it is still pending. The Transfer Application is patently mala fide and vexatious and is accordingly dismissed alongwith the interlocutory application with special costs of Rs.3000/- to be paid by the applicants to the respondents, Mr. Khan states that the costs instead of being paid to him may be deposited in High Court Medical Fund. Mr. Awan is directed to do so within 30 days. .