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Civil Transfer Application No. 512 of 1962, decided on 23rd April 1963.

Allegation against Civil Judge that he had been won over by other party‑Denied by Civil Judge in his report submitted to High Court on application for transfer of case‑Civil Judge while submitting report asking for action being taken against applicant "in fairness to me and to uphold dignity of Court" Civil Judge's request no indication of bias‑Transfer application rejected‑Civil Procedure Code (V of 1908), S. 24.

The plaintiff, in a suit for restitution of conjugal rights, took the following ground (among others) in his application to the High Court for transfer of the case under section 24, Civil Procedure Code, 1908

"That the defendants are very influential persons and I have been informed that they have won over the learned Judge so much so that they have announced their victory in the bradary and distributed sweets amongst their relations and friends."

The Civil Judge concerned, in his report called for by the High Court, observed

"The allegation of the plaintiff that the defendants had won me over to their side, is both false and malicious. I emphatically deny the truth of this allegation and request that the plaintiff should be called upon to prove it. In case of his failure to do so, appropriate legal action should kindly be taken against him in fairness to me and to uphold the dignity of this Court."

It was argued by the plaintiff's counsel that in so far as the Civil Judge had expressed himself strongly and had suggested action to be taken against the plaintiff for making those allega tions, an inference of bias in relation to the case must be made and the case transferred.

Held that this could not be made a ground for transfer. To do this might result in demoralising the subordinate judiciary and encouraging cantankerous and unscrupulous litigants in adopting a similar course. The allegations having been found not to be true, the ground of making these allegations and the resultant remarks of the Court cannot be the reason for the transfer of the case. To do so might tend to bring the Court into disrepute.

Such a ground cannot be countenanced.

A party cannot be permitted to provoke a Judge and then take advantage of his observation for the purpose of obtaining the transfer of the case from his Court.

Muhammad Ismail Chowdhry v. Abdul Khaliq P L D 1960 S C 301 not applicable.

A. S. Pirzada for Applicant.

S. Zamirul Haq for Opponents.

Dates of hearing : 8th and 16th April 1963.

This transfer application under section 24 of the Civil Procedure Code arises out of a suit by the present applicant Abdul Ghafoor, son of Muhammad Usman, for restitution of conjugal rights against three defendants, one of them being the alleged wife.

2. The suit in the first instance was tried by Mr. Mehdi Ali Siddiqui, Sub‑Judge, as he then was, as Suit No. 418/58. He had heard all the evidence in the case except the evidence of the handwriting experts, one on each side which, came to be recorded later by Mirza Arshad Beg, Sub‑Judge. The suit came to the file of Mirza Arshad Beg as a result of Mr. Mehdi Ali Siddiqui being promoted as Additional District Judge. After the evidence of the two experts was recorded by Mirza Arshad Beg certain applications were made before him on behalf of the defendants, which being rejected, an application for the transfer of the suit was made by the defendants in the Court of the District Judge. This application was based upon certain orders which were passed by Mirza Arshad Beg and no personal allegations were made against him in this application. This transfer application came before the District Judge Mr. Kharl (Mr. Justice Kharl) as he then was. The plaintiff in his turn made an application to the High Court for the transfer of the transfer application making allegations against Mr. Kharl that he had expressed his mind that Mirza Arshad Beg being a newly appointed Sub‑Judge should not be entrusted with matrimonial cases which involved delicate questions regarding human relations. The remarks of Mr. Kharl were called for by the High Court and the plaintiff's application was dismissed. Thereafter Mr. Kharl transferred this case from the Court of Mirza Arshad Beg to the Court of Mr. Dreshani, Civil Judge, on administrative ground indicated above. In fact, all cases of matrimonial disputes were transferred from his Court by the District Judge. An application in revision was then filed in the High Court by the plaintiff against this order of transfer and this was summarily rejected on 8‑1‑62. The suit then came up before Mr. Dareshani Civil Judge who heard arguments of the parties on 26th and 27th July 1962. On 4th August 1962 the defendants applied for permission to examine further evidence and this application was heard on that day and dismissed by the learned Civil Judge on 8‑8‑62. The suit was then fixed for judgment on 15‑8‑62. From that day it was postponed to 27‑8‑62 and thereafter to 30th August 1962. On 29th August 1962 the plaintiff filed another application in the Court of the District Judge for the transfer of the suit from the Court of Mr. Dareshani and obtained an order for stay. In this application for transfer amongst other grounds the following ground was urged.

"That the defendants are very influential persons and I have been informed that they have won over the learned Judge so much so that they have announced their victory in the bradary and distributed sweets amongst their relations and friends."

The learned District Judge called for the remarks of Mr. Dareshani which he submitted on 3rd September 1962. He stoutly denied the allegations made in the petition and with regard to the grounds reproduced above this is what he said :‑

"The contents of para. No. 8 of the affidavit have come to me as a shock. I am not aware of the influence of defendants. To me the plaintiff appears to be equally influential if not more, as he is an influential officer of the Government. The allegation of the plaintiff that the defendants had won me over to their side, is both false and malicious. I emphatically deny the truth of this allegation and request that the plaintiff should be called upon to prove it. In case of his failure to do so, appropriate legal action should kindly be taken against him in fairness to me and to uphold the dignity of this Court.

I have only to add that I would have no objection, if the suit is transferred from my file to some other Court."

The learned District Judge Mr. Qadir Nawaz Awan heard the parties and examined the affidavit filed in the case and came to the conclusion that the allegations made in the transfer application were not true and he, therefore, dismissed it by his order dated 26‑10‑62. In dismissing this application the learned District Judge amongst other things had taken note of the assertion made on behalf of the defendants that the only intention of the plaintiff was to keep the case pending as long as possible and use the same against the defendants for pressure tactics and for defaming them. A similar observation was made by Mr. Mehdi Ali Siddiqui in his order made on or about 9‑9‑59 vacating the temporary injunction which the plaintiff had obtained restraining the defendant Mst. Aisha from contracting another marriage. This is what he had said

"I am convinced that he (plaintiff) is misusing the process of Court."

3. On the dismissal of the transfer application by the District Judge Mr. Qadir Nawaz Awan the present transfer application was made to this Court. The main ground of this transfer application and the only one which was pressed before me by Mr. Abdul Sattar Pirzada, the learned counsel for the applicant‑plaintiff is contained in paras. 14, 15 and 16 of the application which reads as follows:‑

"14. The applicant submits that the concluding portion of the report of the learned Sub‑Civil Judge clearly shoe. s that he is annoyed with the applicant for having made allegations against him in the transfer application. The learned Sub‑Civil Judge further appears to have taken a personal offence to the allegations and has shown his personal interest by requesting the learned District Judge to take legal action against the applicant on his failure to substantiate the allegations.

15. The applicant submits that it is undisputed fact that a legal action can be taken against a litigant for making false allegations ; therefore it was not necessary for the learned trial Judge to make a specific request to this effect whereby he has shown his personal interest and seems to have made a personal issue against the applicant.

16. That in any case it is not fair to the parties that this be decided by any one except Mr. Arshad Beg who has heard and seen the two handwriting expert‑witnesses in Court whose evidence is of the utmost importance in this case specially as their evidence contradicts each other respectively."

4. At the hearing of the application Mr. Pirzada urged before me that the statement made by the learned Civil Judge in his report to the District Judge to the effect that if the allegation made against him that he had been won over was not proved action should be taken against the plaintiff, clearly showed his bias and, therefore, in the interests of justice the case should be transferred from his Court. He sought support for this contention from the judgment of the Supreme Court in the case of Muhammad Ismail Chowdhry v. Abdul Khaliq (PLD 1960 SC 301).

5. It appears to me that the ground taken in the application by the plaintiff and urged before me is either much too naive or tortuous. The question before me is that when a member of the subordinate judiciary is attacked in relation to a case pending before him and grave allegations against his conduct are levelled in a transfer application and when on the report being called for he vigorously denies them and asks the Court superior to him for protection and action, should this constitute a good ground for transfer on the basis of bias. I haven't the slightest doubt that by itself it cannot be a good ground. It would be a bad day when such a law is laid down. To accept this as a good ground of transfer would mean that all that a litigant has to do is to make serious and scandalous allegations of a personal nature howsoever untrue against the presiding Judge and if he protests against this when asked for his comments, the case pending in his Court, apart from all other considerations, must be transferred on the sole ground that he has become biased and therefore not fit to adjudicate in the cause. This cannot be the law. A party cannot be permitted to provoke a Judge and then take advantage of his observation for the purpose of obtaining the transfer of the case from his Court. The members of the subordinate judiciary do not get sumptuous salaries and are often subject to serious disadvantages. To them, a good name and the reputation of being just and honest is a great asset, and this cannot be allowed to be sullied by calculating litigants.

6. Mr. Pirzada doesn't contend that the allegations referred to above have been established. He does not challenge the finding of the District Judge on that ground, but what he does say is, and he appeared to be quite earnest, that in so far as the learned Civil Judge had expressed himself strongly and had suggested action to be taken against the plaintiff for making those allegations an inference of bias in relation to the case must be made and the case transferred. I cannot agree. The learned Civil Judge denied the allegation and asked the Superior Court for action being taken against the plaintiff for making these allegations. This he considered necessary for his own good name and in the interest of the dignity of the Court. The action which he was suggesting to be taken was evidently of contempt of Court. I cannot make this a ground of transfer. To do this, might result in demoralising the subordinate judiciary and encouraging cantankerous and unscrupulous litigants in adopting a similar course. The allegations having been found not to be true, the ground of making these allegations and the resultant remarks of the Court cannot be the reason for the transfer of the case. To do so, in my opinion, might tend to bring the Court into disrepute. If this was done most people would not know the real reason of the transfer and what would be generally known is that such allegations were made against the Court and the case was transferred. It is easy to imagine the discomfiture of the Judge concerned in such a case. The judgment of the Supreme Court cited by the learned counsel has no application to the present case. In that case the bias in the mind of the Munsif had been established and it was found that this bias had manifested itself in the various steps which the Munsif took in the conduct of the case. This is what the learned Chief Justice observed in that case

"The effect of bias in the mind of a trying Judge extends to every part of the proceedings conducted and recorded by him. It is impossible for any Superior Court of correction to estimate the value to be placed upon the record of the evidence prepared by such a Judge. Being in control of the entire proceedings he is in a position to influence the course of the examination and cross‑examination of witnesses in such a way that the result towards which his bias leads him is produced, but the processes are completely concealed and consequently it becomes impossible for a Superior Court to distinguish that portion of the proceedings which is effected by bias in the trial Judge. The mere attitude of a biased Judge is often sufficient to determine the nature of the evidence given by witnesses appearing before him. They cannot be expected to speak their minds freely with single‑minded adherence to the truth, if they are aware of the direction in which the Court desires to guide the case.

Consequently, we are constrained to hold, that the trial of this case has been vitiated by bias in the mind of the trial Judge and therefore his entire proceedings and all subsequent proceedings in appeal should be set aside and the case should be remitted for retrial by a competent Court."

Nothing of the kind has happened in this case. If there had been evidence of bias and if that had manifested in anything done by the learned Civil Judge in the conduct of the case itself I would not have had the slightest hesitation in transferring the case. But that is not the ground taken before me. The ground taken is that the conduct of the Judge in making his report to the District Judge on the transfer application must be taken to be the basis and the ground for the transfer of the case. I have said enough to show that this cannot be countenanced.

7. For the reasons given above I dismiss the transfer application with costs.

(ORDER ANNOUNCED BY WAHIDUDDIN AHmAD, J.)

A. H.

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