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‑‑‑S.25‑A‑‑Civil Procedure Code (V of 1908), O.XXVI, Rr. 9 & 18(1)‑‑Application for transfer of family suit‑‑Appointment of Local Commissioner to make local investigation and report about residence of respondent‑‑Local Commissioner while making local investigation issuing no notice to respondent‑‑Effect‑‑Apart from legal requirements under 0. XXVI, R.18(1), C.P.C. rules of natural justice also demand that local investigation be made after notice to parties‑‑Where notice was not issued to parties, Local Commissioner, held, was required to state reasons for not giving such notice‑‑Court issuing such Commission on consideration of such reasons could either overlook factum of not issuing of notice or decline to act on his report on that account‑‑Local Commissioner's failure to furnish any reasons for not giving notice to parties or their counsel, rendered his report as unreliable by High Court especially when person on whose statements same was founded had come forward to say that said statements were not based on true facts.

Jamil Ahmad Taban and others v. Mst. Khair‑ul‑Nisa and others A I R 1970 Delhi 205 and Labanva Debi and others v. Govinda Malik and others A I R 1960 Orissa 66 rel.

Muhammad Suleman and another v . Abdul Rashid and 6 others P L D 1975 Lah. 42 distinguished.

(b) West Pakistan Family Courts Act (XXXV of

1964)‑‑-----

‑‑‑S. 25‑A‑‑Factum of residence of respondent‑‑Requirements for determination‑‑Fact um of residence of respondent (wife) being a question of fact, held, could be decided by Family Court concerned if objection thereto had been raised by petitioner after entering appearance before same‑‑Matter of determination of residence of respondent was left to Family Court's verdict after inviting evidence of parties.

(c) West Pakistan Family Courts Act (XXXV of

1964)‑‑‑

‑‑‑S. 25‑A‑‑Transfer of family suit‑‑Petitioner husband stating in his application for transfer of suit of wife from Family Court at J to Family Court at L that while going to defend case at J his life would be in danger but not stating in such application that respondent wife was not residing at 'J' but at 'L'‑‑Plea of danger to life not pressed in arguments before High Court but instead factum of residence of respondent at 'L' was argued before Court‑‑High Court declined to transfer case of respondent wife to 'L' in view of fact that where transfer of suit involved matrimonial dispute, more weight should be given to convenience of female party than to that of male party‑ Transfer application being devoid of merit was dismissed by High Court.

Q. M. Salim and Iftikhar Shah for Petitioner. M.D. Chaudhri for Respondent. Date of hearing: 30th June, 1987.

Zulfiqar Ahmad has made this petition for transfer of a suit brought by the respondent, Mst. Nabilla Bibi, against him, for recovery of dower. Her suit is pending before a Family Court of Jhang, and the petitioner seeks its transfer to Lahore.

2. According to her address given in the plaint of the suit filed by her, she is residing in village Khanuana, Tehsil and District Jhang. In the instant petition, however, the petitioner showed her as a resident of Harbanspura, Lahore.

3. On 28th January, 1987, when the petition came up before me for the first time, it was submitted by Mr. M. Iftikhar Shah, Advocate, learned counsel for the petitioner, that the respondent, in fact, lived in Lahore. He prayed for adjournment to produce documentary evidence in support of his plea. The case was, therefore, adjourned to 14th February, 1987. On that date, learned counsel for the petitioner prayed that the respondent may be summoned to appear before this Court. He offered that if the respondent would state before this Court that she was not residing in Lahore, this petition may be dismissed. Notices were, therefore, ordered to be issued to the respondent, both at her address of Jhang (given in the plaint of her suit) as well as at her address of Lahore (furnished by the petitioner). Notice issued to her at the Jhang address was received back with the report that she was not residing at the said address. On the notice issued to her at the Lahore address, it was reported by the Process Server that he contacted her brother who told him (Process Server) that she had gone on her lands. Her brother declined to accept service on her behalf.

4. The above notices were issued for 20th April, 1987. On that date. Mr. Q.M. Salim Khan, Advocate, appeared alongwith Mr. M. Iftikhar Shah, Advocate, as counsel for the petitioner while Mr. M.D. Chaudhry, Advocate, entered appearance on behalf of the respondent. When the said reports, with regard to service of the respondent, were brought to the notice of learned counsel for the parties, Mr. M. Iftikhar Shah, Advocate, who had made the aforementioned offer, resiled from it and requested that the matter may ‑be decided on merits. No objection was raised from the other side. Mr. Q.M. Salim Khan, Advocate, then requested for adjournment to argue the matter and thereupon the case was adjourned to 5th May, 1987.

5. When the case was taken up on 5th May, 1987, Mr. Q.M. Salim Khan, learned counsel for the petitioner, prayed that a Local Commissioner may be appointed, at the expense of the petitioner, to visit the place where the respondent was allegedly residing in the district of Jhang and report whether she was actually living there. It was further submitted by him that if the Local Commissioner reported that the respondent was actually residing there, the petition may be dismissed; but if his report was otherwise, the petition may be accepted. Learned counsel for the , respondent agreed to this arrangement. On this, Mr. Ibne Hassan, Advocate, was appointed as Local Commissioner. He was directed to visit the said place and submit his report within a week. The learned Local Commissioner filed his report on 12th May, 1987 stating that he went to village Khanuana, District Jhang, and contacted certain persons who told him that the respondent was not living in the said village. His report was accompanied by a note to this effect which appears to have been recorded by 8 persons mentioned below:‑

(1) Muhammad Sharif, ‑Shopkeeper

(2) Muhammad Shafi, Nazir Radio Service.

(3) Ronaq Ali Chaukidar.

(4) Muhammad Mahboob son of Yasin Rajput.

(5) Ghulam Farid son of Pehlwan.

(6) Babu Khan, Lohar.

(7) Muhammad Rafiqut Khanuana

(8) Muhammad Ramzan Panwar.

6. On 16th May, 1987, when learned counsel for the respondent was apprised of the report of the Local Commissioner, he requested for adjournment to file objections to his report. He also placed on

record a writing furnished by the following persons of Khanuana, stating on oath, that the respondent was residing with her father, Mehraj Din at Chah Nabawla Wala in the area of village Khanuana, where her father was cultivating, as tenant, the land of Mahr Mehar Ali son of Sultan Ali: ‑

(1) Mahr Allah Yar, Lambardar.

(2) Mahr Sikandar Khan.

(3) Rana Ata Muhammad, Member Union Council No.25, Satiana Road, District Jhang.

(4) Mahr Fateh Ullah Khan, Member, Union Council No.25, Satiana Road, District Jhang.

(5) Mahr Mehar Ali son of Muhammad Sultan Khan,

(6) Rana Mashooq Ali, Dealer Fertilizer.

(7) Rana Samee Ullah Khan.

(8) Rana Zahid Hussain.

(9) Mahr Anwar Ali son of Sher Muhammad.

(10) Muhammad Ramzan son of Nazar Din Teli.

(11) Mahr Kabir, Oil Dealer.

(12) Muhammad Ali son of Khan Muhammad, sweetmeet seller.

(13) Muhammad Ramzan son of Alauddin, Oil Dealer.

(14) Haji Mahmood, sweetmeet seller.

(15) Umar Hayat, Teacher, High School.

7. On 2nd June, 1987, to which date the case was adjourned, the respondent filed objections to the report of the Local Commissioner. Alongwith his objections he submitted a certificate recorded by .the persons on whose statements the report of the Local Commissioner was based. In that certificate it was clarified by them that at the time when the Local Commissioner contacted them they were not aware of the fact that the respondent was living in village Khanuana, but subsequently when they made inquiries in this regard they came to know that she was residing at the Chah of Mahr Mehar Ali son of Sultan Ali, alongwith her father, who was cultivating land there. It was added by them that the information supplied by them to the Local Commissioner earlier was given by them for want of full information and that the fact of the matter was that the respondent

was residing in Khanuana.

8. Reply to the objections of the respondent was submitted by the petitioner on 8th June, 1986. Alongwith the reply, the petitioner filed a certificate by a Councillor to the effect that the respondent was residing in Harbanspura, Lahore. He also placed on record a writing stating that the members of the family of Mehraj Din (father of the respondent) were holding identity cards of Lahore District. This writing was not signed by any one.

9. Today, when the case came up before me I wanted to hear arguments on objections to the report of the Local Commissioner, but learned counsel for the petitioner suggested that arguments may be heard not only on the said objections but also on the whole case. Learned counsel for the respondent had no objection to my so doing. I, therefore, heard learned counsel for the parties, accordingly.

10. Before dealing with other matters, I would like to attend to the objections of the respondent to the report of the Local Commissioner. It was contended by learned counsel for the respondent that since the Local Commissioner made investigation without notice to the respondent, his report was not reliable. He placed reliance on Jumil Ahmad Taban and others v. Mat. Khair‑ul‑Nisa and others AIR 1970 Delhi 205 to support his plea. On the other hand, it was urged by learned counsel for the petitioner that in view of the nature of the investigation entrusted to the Local Commissioner he was not obliged to give notice to the parties before undertaking the investigation. For this proposition, he relied on Muhammad Suleman and another v. Abdul Rashid and 6 others P L D 1975 Lah. 42.

11. Case of Muhammad Suleman and another, cited by learned counsel for the petitioner does not deal with the point in issue. It is, therefore, of no help to him. In the case of Jamil Ahmad Taban and others, relied upon by learned counsel for the respondent, report submitted by Local Commissioner was not treated as evidence under sub‑rule (2) of rule 10 of Order XXVI of the Code of Civil Procedure because no notice was given by the Court as required by sub‑rule (1) of rule 18 thereof or by the Local Commissioner. I have also laid hands on Labanva Debi and others v. Govinda Malik and others AIR 1960 Orissa 66 in which it was ruled that notice must be given to all parties in the case and if this is not done, the aggrieved parties can make a grievance of the fact that they were not given sufficient opportunity to present their respective cases. In the case of Labanva Debi and others, notices were not given by the Local Commissioner to some of the parties and, therefore, his report was not relied upon and another Local Commissioner was appointed to inquire and report. Rules of natural justice also demand that local investigation be made after notice to the parties. I, therefore, hold that before making local investigation, a Local Commissioner should give notice to the parties or their counsel if date and time of such investigation has not been notified to them by the Court making appointment of the Local Commissioner. Any departure from this rule should be explained by the Local Commissioner and on his so doing, it will be for the A Court to overlook the departure or decline to act on his report on that account. In the instant case, like learned counsel for the parties, the Local Commissioner was an Advocate of Lahore and, therefore, he had little difficulty in telling them, on the telephone or otherwise, the date and time of his going to village Khanuana. Admittedly, he did not do so. The Local Commissioner submitted his report after seven days of his appointment. He has not furnished any reason for not giving notice to the parties or their counsel before going to village Khanuana. I am, therefore, not inclined to rely on his report especially when the persons on whose statements it is founded have come forward to say that the said statements were not based on true facts.

11‑A. Whether or not the respondent resides within the local limits of the Family Court of Jhang is a question of fact which would have been decided by the said learned Court if an objection in this behalf had been raised by the petitioner after entering appearance before it. I too would not have gone into this aspect of the matter if learned counsel for the parties had not suggested short‑cuts referred to above. As already indicated, the material which has come on the record as a result of the steps taken in pursuance of the suggestions made by them has created confusion instead of enabling me to resolve the controversy. I would not like to record any finding in respect of the place of residence of the respondent on the basis of the statements of different persons produced by the parties, on one occasion or the other, because the persons making these statements have not been subjected to cross‑examination nor their statements are in the form of affidavits. I, therefore, leave it to the learned Family Court to give verdict in this regard, after inviting evidence of the parties, if and when an objection is raised before it, by the petitioner, and then proceed further in accordance with law.

12. It may be pointed out here that in the petition for transfer of the respondent's suit the petitioner did not say that the respondent resided at Lahore and not in village Khanuana, District Jhang. The only reasons given by the petitioner in his petition for seeking transfer of the respondent's suit were that in the event of his going to Jhang to defend the respondent's suit, his life would be in danger and that he had filed a suit for restitution of conjugal rights, against the respondent, at Lahore. Learned counsel for the petitioner did not press his plea regarding security of the petitioner nor there is any document to support it. The petitioner is a Police Constable. As for the petitioner's suit for restitution of conjugal rights, it was submitted by learned counsel for the respondent that notice thereof had not been received by the respondent and that the respondent would seek transfer of his suit to Jhang after collecting complete information regarding that suit. Since, at this stage, there is no prayer before me for transfer of petitioner's suit to Jhang and it is also hoped that the petitioner would object to the jurisdiction of the Family Court at Jhang, which is seized of the respondent's suit, I would not like to make any, order for transfer of the petitioner's suit even suo motu. There 4 no dearth of case‑law on the point that where transfer of a suit involving matrimonial dispute is sought, more weight should be given to the convenience of the female party than to that of the male party. Since the respondent is a female but the petitioner is a male, I am not inclined to transfer the respondent's suit from Jhang to Lahore. IT ultimately, however, it is found that the Family Court at Jhang has no jurisdiction to hear her suit, the plaint would be returned to her for presentation before a Court of competent jurisdiction.

13. For the foregoing reasons, and with the above observations this petition is dismissed with no order as to costs.

A.A./Z‑20/L Transfer application dismissed.

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