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Transfer Application No. 5 of 1984, decided on 12th November, 1985.

(a) Civil Procedure Code (V of 1908)‑

‑‑ Ss. 24 & 151‑Transfer of suit‑Questions of law and Constitution though referred to, but not specified in transfer application‑Effect Rending of pleadings of parties indicating that questions of law and constitution of far‑reaching importance and of great complexity were raised to such pleadings, transfer application, held, would be com petent even if same was devoid of specifications.

(b) Civil Procedure Code (V of 1908)‑

‑ Ss. 24 & 151‑Transfer of case‑Requirements‑Where case sought to be transferred involved interpretation of some constitutional provision, question; of public importance; character assassination of one of parties, Court concerned having already expressed view on point involved in pending suit or committed irregularity in conduct ing proceedings: convenience of parties and witnesses and interest of justice, same. held, would be transferred from file of subordinate Court to file of High Court or some other Court.

(c) Civil Procedure Code (V of 1908)‑

‑‑ S. 24 Transfer of suit‑Requirement‑Transfer of suit, held, would be in discretion of High Court or District Judge, no specific conditions haying been prescribed in S. 24, Civil Procedure Code 1908.

The High Court or the District Court may at any stage, on an applica tion of any of the parties and after notice to the parties and after hearing such parties, who desire to be heard, or on its own motion without such notice, may withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and may try or dispose of the same itself. Section 24, Civil Procedure Code does not prescribe any condition or conditions for pressing it into service. It has been left to the discretion of the High Court or the District Judge to exercise the power of transfer of a case contained therein, when it is satisfied that the facts of the case warrant such a transfer. However, generally a High Court does not withdraw the cases from the files of the competent subordinate Courts to its own files for trial as a matter of course, but when inter alia, constitutional questions of law or questions of law or facts of public importance are involved or when the High Court is satisfied that there is some other reason warranting transfer/invoking of section 24, C. P. C., case is withdrawn from the file of a subordinate Court to its file for trial or disposal.

P L D 1983 S C 291 ; Abdul Rauf etc. v. Nasim Hamdani, etc. P L D 1979 Note 130 at p. 95 ; Sharaf Faridi and 2 others v. M. A. Shuhani and 16 others P L D 1975 Kar. 59 ; Abdul Latif, etc. v. Muhammad Aslam Khan N L R 1981 U C 91 ; Mt. Paro v. Chhaja Singh and another A I R 1934 Lah. 539 ; I L R 9 All. 1887 ; Harenda Lal Roy v. Sarvamangala Dabee and others (18971 24 Cal. 183 ; Ma Thaw and another v. T. C. Mckenzie and others (1910) 8 1 C 444 ; Air Marshal (Retd.) M. Asghar Khan v. Fariduddin Masood P L D 1974 Lah. 1 and Syed Ali Nawaz Shah Gardezi v. Lt.‑Col. Muhammad Yusuf Khan, Commissioner, Quetta Division P L D 1962 (W. P.) Lah. 558 ref.

(d) Civil Procedure Code (V of 1908)‑

‑‑ S. 15‑Suit‑Filing of‑Every suit, held, would be instituted in Court of lowest grade competent to try same.

P L D 1.981 Kar. 210 ref.

(e) West Pakistan Civil Courts Ordinance (II of 1962)-

‑‑ S. 24‑Suit against "the State" and "public servants" in official capacity‑A suit in which Pakistan or any Provinces or any public officer as defined in S 2(171 of Civil Procedure Code, 1908 in official capacity would be a party, held, could only be filed in Civil Court having original civil jurisdiction without limits as regards value‑Such suit would have to be heard at District headquarters Filing of suit in Court of District Judge and entrusting of same to Additional District Judge, instead of Senior Civil Judge, would lend support to contention that suit involved important questions of law and fact of public importance.

Munir A. Shaikh, D. A.‑G. and Raja M. Afsar for Petitioners.

Fakhruddin G. Ebrahim and S. A. M. Qadri for Respondent No. 1.

Mazharuddin Siddiqui for Respondents Nos. 2 and 3.

W. N. Kohli for Respondent No. 4.

Date of hearing : 2nd November, 1985.

JUDGMENT

This is a petition under sections 24, 151,, C. P. C. for the withdrawal of Suit No. 233‑A of 1984, titled Yahya Bakhtiar v. Federation of Pakistan and 4 others from the file of the learned Additional District Judge‑I at Quetta and transfer of the same to the file of the High Court.

The brief facts leading to the filing of the above petition are that the respondent No. 1 acted as the Attorney‑General of Pakistan during the period commencing from 23rd December, 1971 to 5th July, 1977 i. e. till the imposition of the Martial Law. It may be observed that after the imposition of the Martial Law for the purpose of accountability, inter alia, some special disqualification tribunals were set‑up under Martial Law Order No. 25 for the trial of the representatives under the special law for committing rigging of elections, which was includes in the definition of "misconduct" and the rigging of election was made an offence punishable with sentence of seven years' R. I and unlimited amount of fine. It seems that certain editorials appeared in respondents Nos. 2 and 3's Urdu Daily Newspaper fang Karachi and Quetta', whose publisher is respondent No. 4, both on 24th June, 1975 impressing upon the Government that the process of accountability in respect of the alleged rigging of election by the respon dent No. 1 be expedited. It further appears that on 14th April, 1979, a Special Tribunal (hereinafter referred to as the Tribunal') consisting of Mr. Justice Usman Ali Shah, then a Judge of the Peshawar High Court was set‑up under Article‑4 of P. O. 16 of 1977 to try the cases against the persons belonging to the Province of Baluchistan, who have held the office of the Attorney‑General. The respondent No. 1 was tried by the Tribunal, which resulted in his conviction and sentence of five years' R. I. and a fine of Its. 1 lac and in default further R. I. of one year. Against the above conviction, the respondent No. 1 filed an appeal before the Honourable Supreme Court of Pakistan, which was allowed by a short order, dated 10th February, 1983 followed by a detailed judgment reported in P L D 1.983 S C 291. After the above judgment of the Honourable Supreme Court, the respondent No. 1 filed the above suit on 9th February, 1984 in the Court of learned District Judge, Quetta for the recovery of Rs. 2 crores and 50 lacs against the Federal Government, and Humayun Khan, Deputy Secretary, Election Commission of Pakistan (defendants Nos. 1 and 2 in the suit) and the respondents Nos. 2 to 4 (defendants Nos. 3 to 5 in the suit), the Managing Editor, the Chief Executive and the Publisher respectively of the aforesaid Urdu Newspaper for malicious prosecution and libel, which was transferred to the file of the learned Additional District Judge‑I at Quetta by an order, dated 6th February. 1984. The present transfer application was filed on 2nd June. 1984 (by the aforesaid defendants Nos. 1 and 2) on the grounds mentioned in para. 2 of the transfer application which reads as follows :‑

"that besides the huge amount of Rs. 25 millions claimed in the suit, the case as will appear from the pleadings, involves questions of law and constitution of far‑reaching importance and of great complexity including interpretation of P. C. O. and precedent judgments of the Supreme Court and Special Judge delivered in the criminal proceed ings. Added to this sensitive issues arising from the pleas of the plaintiff attempting to cast aspersion on superior judiciary and on high level working of the administration and vires thereof and the questions as regards relevancy of such pleas will arise for determina tion in the case. In these circumstances, it is pre‑eminently in the interest ,of justice and for effective adjudication of all the points that the suit be tried by the High Court . . . ."

The above application has been resisted by the respondent No. I only.

2. In support of the above application Mr. Munir A. Sheikh. learned Deputy Attorney‑General assisted by Raja M. Afsar, Advocate has urged that a bare reading of the plaint and the written statements will indicate that the above application is a bona fide application as from the pleadings, it is evident that the case involves questions of law and constitution of far- reaching importance and of great complexity apart from the fact that the huge amount of claim is involved. It was also submitted that the averments contained in the plaint cast aspersions on the superior judiciary and on the administration. Mr. Mazharuddin Siddiqui, learned counsel for the res pondents Nos. 2 and 3 adopted the arguments of Mr. Munir A. Sheikh.

On the other hand, Mr. Fakhruddin G. Ebrahim, learned counsel for the respondent No. I has submitted that the application is not competent as it lacks material particulars, inasmuch as, the alleged important questions of law and constitution of far‑reaching importance and of great complexity involved have not been stated. It was also submitted by him that in any case for the transfer of the suit from the file of a competent Court to this Court has been made out.

3. It is true that in the transfer application, the questions of law and constitution of far‑reaching importance and of great complexity have not been specified, but reference has been made to the pleadings of the parties and also to the interpretation of the P. C. O. and the precedent judgment of the Hon ble Supreme Court and Special Judge. I have perused the plaint and the written statements filed by the defendants in the suit and I am inclined to take the view that the above preliminary objection of Mr. Fakhruddin G. Ebrahim, learned counsel for the respondent No. 1 is not sustainable as from the reading of the pleadings of the parties, id is evident what points of law and constitution are involved.

4. It may be observed that the plaint runs into 28 pages, in which, reference to the various alleged events, which bad taken place during the post‑election period of 1977 and the post‑promulgation of the Martial Law period inter alia, have been referred to, inasmuch as, the filing of a petition by Begum Nusrat Bhutto for the enforcement of the fundamental rights, alleged removal of the then Chief Justice Mr. Justice Yaqub Ali and the appointment of the then Mr. Justice Anwarul Haq, promise made by General Zia‑ul‑Haq to hold general elections in 90 days, the grant of bail to late Mr. Zulfiqar Ali Bhutto by the Lahore High Court on 8th March, 1978, the trial of late Mr. Zulfiqar Ali Bhutto by a Full Bench of the Lahore high Court resulting into his conviction and sentence of death, the above trial headed by Mr. .Justice Moulvi Mushtaq Hussain (as he then was) about whose competency to try the case unsuccessfully objected to, appeal to the Honourable Supreme Court of Pakistan, interrogation of the respondent No. 1 by the Director, F. I. A. in connection with the alleged massive rigging while the appeal of late Mr. Zulfiqar Ali Bhutto was pending in the Honourable Supreme Court, issuance of a lengthy official statement on 23rd June, 1978 about the interrogation of the respon dent No. 1 by the F. I. A. on the alleged massive rigging of election, appearance of the alleged inspired editorials in Urdu Newspaper 'Jang' on 24th June, 1978 in Karachi at Quetta editions, the publication of the White Paper by the petitioner No. 1 including Chapter 9 running in over 40 closely printed pages on the respondent No. 1, the alleged unusual prejudicial and unfair manner, in which, the Special Court allegedly con ducted the trial of the respondent No. 1, the alleged insult, abuse and physical torture allegedly committed by the Jail Superintendent on the respondent No. 1, telecasting of the above news by the B. B. C. and the foreign press, the respondent No. 1's visit to U. S. A. for open‑heart surgery etc. and the various alleged mule fide actions taken by the petitioner No. I/defendant No. I against the respondent No. I the plaintiff.

Whereas, the petitioners/defendants Nos. 1 and 2 in their written state ment have raised a number of preliminary objections/pleas including the plea of ouster of jurisdiction provided for in Article 15 of the P. C. O. and Article 9 of the President Order No. 16 of 1977, the plea of reasonable and probable cause for the trial of the respondent No. 1, the plea that legal essentials for maintaining a suit for damages on the ground of alleged libel or defamation are lacking, the plea that the averments con tained in Paras. 2, 3, 4, 5, 6, 7, 9, 12, 13, 16, 19, 20, 21, 21, 25, 26, 27, 31, 32, 33, 34, 36, 37, 44 and others of the plaint in so far as the same are calculated to malign the regime of defendant No. I are wholly ill‑founded and frivolous and are motivated by sinister design and desire to scandalise the said defendant by taping undue advantage of the Court proceedings and are liable to be struck out, the pleas that the suit is neither competent, nor maintainable, that the suit is bad for multifariousness and the plaint is hit by provisions of Order VII, rule 1, C. P. C., inter alia, for the reasons mentioned in para. 8 of the written statement etc. On merits various allegations contained in the plaint have been emphatically denied.

The respondents Nos. 2 to 4 the defendants Nos. 3 to 5 in their written statement have also raised a number of preliminary objections including pleas to the effect that the suit is incompetent, bad for multifariousness, barred by law of limitation, barred by section g of the Federal Investiga tion Agency Act VIII of 197‑5, that the two distinct causes of action jointly against different defendants each of whom is unconnected with the cause of action against other, is not maintainable and that the mandatory pro visions of Order VII, rule 1, C. P. C. have not been complied with. It was also pleaded that the editorials were bona fide and fair comments made in good faith on a matter of public interest without malice.

5. (a) Having highlighted the pleas involved in the pleadings of the parties, it may be pertinent to refer to the case‑law cited by the learned counsel for the parties. Mr. 'Aunir A. Sheikh, learned Deputy Attorney -General has referred to the following cases :‑

(i) Abdul Rauf etc. v. Nasim Hamdani, etc. P L D 1979 Note 130 at p. 95, in which, a D. B. of the Lahore High Court ordered the transfer of the suit from the Court of Senior Civil Judge, Campbell pur to the High Court for trial on the ground that the suit inter alia, involved interpretation of Articles 20 and 260 of the Constitution and also the questions of general public importance affecting a minority community of Pakistan in particular and the majority in general. It was also observed that other similar suits were already transferred to the file of the High Court.

(ii) Sharaf Faridi and 2 others v. M. A. Shahani and 16 others P L D 1975 Kar. 59. In the above case late Tufail Ali A. Rehman, the Chief Justice of the erstwhile High Court of Sind and Baluchistan ordered the transfer of a suit filed by the Karachi Bar Association in the Court of Civil Judge First Class, Karachi to the file of the High Court on the ground that the case involved the questions of general importance. In the above case the Karachi Bar Association had filed a suit against 17 persons for declaration to the effect that they were not entitled to practice as lawyers for the reason that they were not qualified.

(iii) Abdul Latif etc. v. Muhammad Aslam Khan N L R 1981 U C 91, in which. Karam Elahee Chauh4n, Judge (as his Lordship then was) transferred a suit from the Court of Civil Judge, Lyallpur to some other Civil Judge in the District to be nominated by the learned District Judge, Lyallpur on the ground that the transfer order would be in the interest of juctice.

(iv) Mt. Paro v. Chhaja Singh and another A I R 1934 Lah. 539. In the above case, Abdul Rashid, Judge (as his Lordship then was) transferred an appeal from the file of Additional District Judge. Jullundur to the court of District Judge, Hoshiarpur on the ground that the former already expressed opinion while deciding another appeal between the same parties on one of the questions involved in the remaining appeal.

On the other hand, Mr. Fakhruddin G. Ebrahim, learned counsel for the respondent No. 1 has cited the following cases :‑

(i) In the matter of the West Hopetown Tea Company Limited, I L R 9 All. 1887, in which, a D. B. of the Allababad High Court transferred a winding up petition filed under the Indian Companies Act (VI of 1882) to its tile in pursuance of the power contained in section 647 of the aforesaid Companies Act read with section 25 of the Code of Civil Procedure, 1882 (Act XIV of 1882) on the ground that the District Judge, Saharanpur committed irregularity, inasmuch as, an order was passed admitting the proof of a particular creditor of the Company before any liquidator bad been appointed.

(ii) Harendra Lall Roy v. Sarvatnangala Dabee and others (1897) 24 Cal. 183. In the above case, a suit for immovable property institu ted in Dinagepur Court was transferred to the file of the High Court under clause 13 of the Letters Patent High Court, 1865, on the grounds that the defendant's witnesses lived in Calcutta and that it would be impossible for her to go to Dinagepur and take her witnesses there owing to the expenses; that an agreement upon which the suit was brought was executed in Calcutta ; that the plaintiff resided and carried on business in Calcutta ; and that all the persons who knew of the transactions in suit were residents of Calcutta or its neighbourhood.

(iii) Ma Thaw and another v. T. C. Mckenzie and others (1910) 8 I C 444, in which, a learned Single Judge of the lower Burma Chief Court declined the transfer of a suit for damages sustained by reason of the alleged unlawful arrest and imprisonment from the file of the District Court of Myaungmya to the file of the afore said Court on the ground that the tact that the case involved difficult questions of law, would not alone be a sufficient ground for the transfer of the case.

(iv) Air‑Marshal (Retd.) Af. Asghar Khan v. Fariduddin Masood P L D 1974 Lah. 1. In the above case. Sardar Muhammad Iqbal, Chief Justice of the Lahore High Court (as his Lordship then was) while dealing with a transfer application under section 526, Cr. P. C., inter alia, observed that simply because some of the persons, who are parties to a criminal proceedings happen to be well‑stationed in life, or that political party in power not well‑disposed towards the party concerned, are no grounds for the transfer, but at the same time, the case was transferred from the file of the Magistrate to the file of the High Court on the ground that there was an allegation of character assassination.

(b) In this behalf, reference may also be made to the case of Syed Ali Naivaz Shah Gardezi v. Lt.‑Col. Muhammad Yusuf Khan, Commissioner, Quetta Division (P L D 1962 (W. P.) Lah. 558), in which, complaint under sections 497. and 498, P. P. C. filed in the Court of Additional District Magistrate, Lahore was transferred to the file of High Court for trial as the accused in the case was a Commis sioner of a Division.

6. From the above‑cited cases, it is evident that the cases have been transferred froth the file of the Court concerned . to the file of the High Court concerned or to some other Court, for the reasons that the case concerned involved interpretation of some constitutional provision or questions of public importance ; character assassination of one of the parties ; the Court concerned already expressed its view on the point involved in the pending case ; the Court concerned committed an irregula rity in conducting the proceedings; convenience of the parties and witnesses, and in the interest of justice, whereas, in the above‑cited case of Lower Burma Chief Court, the application for the transfer of the case was declined and it was held that the ground that the case involved difficult question of law was alone not sufficient ground.

7. Since the present petition has been filed under section 24 of the Code of Civil Procedure read with section 151, C. P. C., it may be advantageous to reproduce hereinbelow the above section, 24 which reads as follows:‑

"24. General power of Transfer and Withdrawal.‑

(1) On the application of any of the parties and after notice to the parties, and after hearing such of them as desire to be beard, or of its own motion without such notice, the High Court or the District Court may at any stage‑

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same , or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(iii) transfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under subsection (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. .

(3) For the purposes of this section, Courts of .Additional and Assistant Judges shall be deemed to be subordinate to the District Court.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes."

A perusal of the above‑quoted section indicates that the High Court or the District Court may at any stage, on an application of any of the parties and after notice to the parties, and after hearing such parties, who desire to be heard or of on its own motion without such notice, may

withdraw any suit, appeal or other proceeding pending in any Court sub. ordinate to it and may try or dispose of the same itself. It may be pointed out that the above‑quoted section does not prescribe any condition or conditions for pressing it into service. It has been left to the discretion of the High Court or the District Judge to exercise the power of transfer of a case contained therein, when it is satisfied that the facts of the case warrant such a transfer. However, generally a High Court does not withdraw the case from the files of the competent subordinate Courts to its own files for trial as a matter of course. but when inter alia, constitutional questions of law or questions of law or facts of public importance are involved or when the High Court is satisfied that there is some other reason warranting transfer/invoking of section 24, C.P.C. a case is withdrawn from the file of a subordinate Court to its file for trial or disposal.

8. It was also submitted by Mr. Munir A. Sheikh, learned Deputy Attorney‑General that under section 24 of the Civil Courts Ordinance, 1962 (hereinafter referred to as the Ordinance') read with section 15 of the Code of Civil Procedure, the suit was triable by a Civil Judge having unlimited original Civil jurisdiction, but the fact that the respondent No. 1 filed the suit to the Court of the District Judge, Quetta lends support to the petitioners' contention that the suit involved important questions of law and facts of public importance.

On the other hand, it was submitted by Mr. Fakhruddin G. Ebrahim, learned counsel for the respondent No. 1 that by virtue of an administrative order passed by the District Judge, Quetta on 5th May, 1982, all the civil suits are to be filed in the Court of the District Judge, who is to distribute the same to the various Courts. A copy of the above order has been placed on record, which reads as follows :‑

"Dated Quetta the 5th May, 1982. No. 10'2‑8; 78‑Judl The District Judge Quetta Division, Quetta under the provisions of rule 3(t) of the High Court Rules and Orders, Vol. I is pleased to order in the interest of equal distribution of civil work in both the Courts of Senior Civil Judge, and Civil Judge, Quetta for the convenience of litigant public at Quetta that all the civil plaints, suits and petitions shall be presented in the Court of District Judge, Quetta who shall refer the cases to the respective Civil Judges for disposal.

(Sd.)

(SYED ABDUL WAND).

District Judge, Quetta.

Endst. No. 1072‑8/78‑Judl : Dated Quetta, the 5th May, 1982.

Copy forwarded to the ‑‑

(1) Senior Civil Judge, Quetta.

(2) Civil Judge. Quetta.

for information and necessary action.

(Sd.)

(SYED ABDUL WAJID),

District Judge, Quetta."

From the reading of the above‑quoted order, it .is evident that the above order was passed under the provisions of rule 3 (1) of the High Court Rules and Orders, Vol. I in the interest of equal distribution of civil work in both the Courts of the Senior Civil Judge, and the Civil Judge, Quetta and for the convenience of the litigant public at Quetta and all the civil suits were to be filed to the Court of District Judge, Quetta. There is no reference to the distribution of the suits in the above administrative order of the District Judge. Quetta to the Courts of Additional District Judges. Be that as it may, however, under section 7 of the Ordinance, it has been laid down that except as otherwise provided by any enactment for the time being in force the Court of the District Judge shall have jurisdiction in original civil suits without limit as regards the value. It may further be observed that under section 15 of the Ordinance, the District Judge has the power to distribute the work among the Courts in the manner as he thinks fit. It may be pertinent to point out that under the Ordinance, Senior Civil Judges were given unlimited original pecuniary jurisdiction in terms of sections 9, 10 and 24 except in the Karachi District. It is an admitted position that even in Quetta, the Senior Civil Judge has unlimited civil pecuniary jurisdiction at t e original side and, therefore. it can be urged that the District Judge and the Civil Judges have concurrent Jurisdiction. But ii view of section 15 of the Code of Civil Procedure, which provides that every suit shall be instituted in the Court of the lowest grade competent to try, a party is to approach the lowest Court. But in some cases; it has been held that the above section lays down a rule of procedure and not of jurisdiction. In this regard, reference may be made to a Full Bench of the Sind High Court, namely, in re: Office Reference in respect of Civil Courts (Sind Amendment)) Ordinance, 1970 (Sind Ordinance XIII of 1970) P L D 1981 Kar. 210.

9. It will be also pertinent to refer to above section 24 of the Ordi nance. which specifically deals with the suits against tae State and its servants in their official capacity, which reads as follows : ‑

"24. Civil Courts having unlimued Jurisdiction regarding value to try suits against the State and its servants in their official capacity.

(1) No Civil Court not having jurisdiction in original suits without limit as regards value and no Court of the Small Causes shall receive, entertain or register any suit in which Pakistan or any of its Province or any public Officer as defined in clause (17) of section 2 of the Code of Civil Procedure, 1908 (V of 1908) in his official capacity Is a party

Provided that in the Karachi District any such suit, if the value thereof dues not exceed twenty five thousand rupees, may be instituted in the Court of the District Judge, the Additional District Judge or a Civil Judge of the First Class, and in the High Court where the value of the suit exceeds twenty‑rive thousand rupees.

(2) In every such case the plaintiff shall be referred to the Court of the Civil Judge having jurisdiction in original suits without limit as regard value and such suit shall be instituted only in the Court of such Civil Judge and shall be heard at the headquarters of the district.

(2‑A) Notwithstanding anything contained in subsections (1) and (2) in the Karachi District, any such suit, if the value thereof does not exceed twenty‑five thousand rupees, may be instituted in and be tried by the Court of the District Judge, the Additional District Judge or Civil Judge of the First Class and where the value of the suit exceeds twenty‑five thousand rupees. it shall be instituted in and be tried by the High Court.

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