(a) Civil Procedure Code (V of 1908)‑‑
‑‑‑5. 24, 0. VII, R . 11 & 0. XXXIX, Rr. 1 & 2‑‑Transfer of case‑‑Grounds‑‑Observation of Court in earlier revision petition against order passed under 0. VII, Rule 11, C.P.C. that "on reading of plaint a prima facie case was disclosed", and non‑discussion of cases cited by counsel of applicant being grounds mentioned in transfer application‑‑Justification for transfer of case‑‑Court, while deciding application under O.VII, R. 11, Civil Procedure Code must confine itself to the reading of plaint‑‑Observation made by Court in revision application with regard to existence of a prima facie case after reading of plaint was confined to the consideration of prayer made for rejection of plaint‑‑There was no justification for the view that because Court had found existence of a prima facie case while refusing to reject plaint under O.VII, R. 11, such Court was likely to be influenced by his own observations in appeal which has now arisen for grant of application under O.XXXIX, Rr. 1 & 2‑‑While holding existence of a prima facie case in favour of plaintiff in deciding application for grant of temporary injunction, Court not only considers plaint and written statement but also other material placed before it by parties, whereas while dealing with prayer for rejection of plaint under O.VII, R. 11, C.P.C. such Court could not look to any other material except plaint and its accompaniments‑‑Court rightly refrained from expressing any opinion on cases cited on behalf of applicant at the stage of decision of application under O .VII , R . 11, C . P. C . as same were not relevant at that stage.
(b) Civil Procedure Code (V of 1908)‑‑
‑‑‑5. 24 & 0. XXXIX, Rr. 1 & 2‑‑Transfer of case‑‑Justification for‑‑Grounds of transfer of case being not tenable at law, High Court refused prayer for transfer of case from Court of District Judge to any other Court.
G.M. Paryani for the Applicant.
CHAIRMAN, KARACHI WATER AND SEWERAGE BOARD VS WAZIR HYDER1988 C L C 308[Karachi]Before Saeeduzzaman Siddiqui, JTHE CHAIRMAN, KARACHI WATER ANDSEWERAGE BOARD and another‑‑Petitioners versusS. WAZIR HYDER and 3 others‑‑RespondentsTransfer Petition No. 34 of 1987, decided on 18/11/1987.
(a) Civil Procedure Code (V of 1908)‑‑
‑‑‑5. 24, 0. VII, R . 11 & 0. XXXIX, Rr. 1 & 2‑‑Transfer of case‑‑Grounds‑‑Observation of Court in earlier revision petition against order passed under 0. VII, Rule 11, C.P.C. that "on reading of plaint a prima facie case was disclosed", and non‑discussion of cases cited by counsel of applicant being grounds mentioned in transfer application‑‑Justification for transfer of case‑‑Court, while deciding application under O.VII, R. 11, Civil Procedure Code must confine itself to the reading of plaint‑‑Observation made by Court in revision application with regard to existence of a prima facie case after reading of plaint was confined to the consideration of prayer made for rejection of plaint‑‑There was no justification for the view that because Court had found existence of a prima facie case while refusing to reject plaint under O.VII, R. 11, such Court was likely to be influenced by his own observations in appeal which has now arisen for grant of application under O.XXXIX, Rr. 1 & 2‑‑While holding existence of a prima facie case in favour of plaintiff in deciding application for grant of temporary injunction, Court not only considers plaint and written statement but also other material placed before it by parties, whereas while dealing with prayer for rejection of plaint under O.VII, R. 11, C.P.C. such Court could not look to any other material except plaint and its accompaniments‑‑Court rightly refrained from expressing any opinion on cases cited on behalf of applicant at the stage of decision of application under O .VII , R . 11, C . P. C . as same were not relevant at that stage.
(b) Civil Procedure Code (V of 1908)‑‑
‑‑‑5. 24 & 0. XXXIX, Rr. 1 & 2‑‑Transfer of case‑‑Justification for‑‑Grounds of transfer of case being not tenable at law, High Court refused prayer for transfer of case from Court of District Judge to any other Court.
G.M. Paryani for the Applicant.
ORDER
The Civil Transfer Application under Section 24 of the Code of Civil Procedure is filed by the applicant with the prayer that Civil Miscellaneous Appeal No.119 of 1987 filed by him before the District Judge, South, Karachi, against the order of trial Court dated 26‑5‑1987, passed on an application under Order XXXIX, Rules 1 and 2 read with section 151, CPC in the suit filed by the respondent No.l be transferred to some other Additional District Judge or be transferred to this Court and treated as a revision application. Learned counsel in support of his transfer application urged that in Civil Revision No.54 of 1987 which earlier arose in the same suit from an order of trial Court rejecting the application of applicant under Order VII Rule 11, CPC, the learned Judge while dismissing the above revision application on 13‑8‑1987 observed that from reading of the plaint a prima facie case is disclosed. According to learned counsel because of the above observations of learned Judge, there is reasonable apprehension in the mind of applicant that while hearing his present appeal which arise out of an order of trial Court allowing respondent's application under Order XXXIX, Rules 1 and 2, CPC, the learned Judge be prejudiced against him. It is also contended by the learned counsel that the learned Judge in his previous order passed in Civil
Revision No.54 of 1987 though mentioned the cases cited by the applicant in support of his contention but did not discuss the same which has also raised a reasonable apprehension in the mind of applicant that if the present appeal is heard by the same learned Judge the applicant will not be able to get justice in the case. After hearing the learned counsel for the applicant at length I am neither impressed by his contentions nor I find any reasonable ground for entertaining the apprehension by the applicant that he will not get a fair trial at the hands of presiding officer of the Court of District Judge, South. The observation of the learned Judge in Civil Revision Application No.54 of 1987 while dismissing the same should be read in the context of the controversy which was brought before him in that case. It is well‑settled law that the Court while deciding they application under Order VII, Rule 11, CPC must confine itself to the reading of the plaint and at that stage the Court is not concerned with the pleas raised in defence by the defendants. It is therefore, quite clear that the observation made by the learned Judge in the above revision application with regard to the existence of a prima facie case after reading of the plaint in the suit were confined to the consideration of the prayer made for rejection of the plaint under Order VII Rule 11, CPC. There is absolutely no justification for the conclusion by the applicant that because the learned Judge had found existence of a prima facie case while refusing to reject the plaint under Order VII, Rule 11, CPC, he is likely to be influenced by his own observation in the appeal which has now arisen for grant o application under Order XXXIX, Rules 1 and 2, CPC. It is needless to mention here that the Court while holding existence of a prima' facie case in favour of a plaintiff in deciding an application under Order XXXIX, Rules 1 and 2, CPC not only considers the plaint, the written statement but also any other material which may be placed before it by the parties in this behalf in the shape of affidavits, counter‑affidavits, rejoinder and the documents. Whereas, the Court while dealing with the prayer for rejection of plaint under Order VII, Rule 11, CPC cannot look to any other material except the plaint and its accompaniments. In these circumstances the observations of the Court regarding existence of prima facie case while refusing to reject the plaint in a suit under Order VII, Rule 11, CPC neither binding on the Court nor is relevant for deciding the application under Order III, Rules 1 and 2, CPC. The other grievance of the learned counsel is that the rulings cited by him though mentioned by the learned Judge in his order passed in Civil Revision No.54 of 1987 were not discussed, is equally without any justification. It is quite obvious that the case‑law cited by the learned counsel before the Court in the previous Civil Revision related to the contention of applicant in defence of the suit and as such the learned Judge rightly 111refrained from expressing any opinion on these contentions as they, were not relevant for consideration at the stage of decision of ar4 application under Order VII, Rule 11, CPC. Learned counsel in support of his transfer application relied on the case of Federation of Pakistan v. Yahya Bukhtiar (PLD 1986 Quetta 138). In that case the High Court ordered transfer of the suit pending before the lower Court to the High Court on the ground that the case involved interpretation of constitutional provision and matters of public importance, besides the fact that the concerned Court had already expressed views on the points involved in the suit. No such case is made out in the present case. There is no merits in this Tr. Application which is dismissed summarily.
A . A . / C‑30/ KTransfer application dismissed.
The Civil Transfer Application under Section 24 of the Code of Civil Procedure is filed by the applicant with the prayer that Civil Miscellaneous Appeal No.119 of 1987 filed by him before the District Judge, South, Karachi, against the order of trial Court dated 26‑5‑1987, passed on an application under Order XXXIX, Rules 1 and 2 read with section 151, CPC in the suit filed by the respondent No.l be transferred to some other Additional District Judge or be transferred to this Court and treated as a revision application. Learned counsel in support of his transfer application urged that in Civil Revision No.54 of 1987 which earlier arose in the same suit from an order of trial Court rejecting the application of applicant under Order VII Rule 11, CPC, the learned Judge while dismissing the above revision application on 13‑8‑1987 observed that from reading of the plaint a prima facie case is disclosed. According to learned counsel because of the above observations of learned Judge, there is reasonable apprehension in the mind of applicant that while hearing his present appeal which arise out of an order of trial Court allowing respondent's application under Order XXXIX, Rules 1 and 2, CPC, the learned Judge be prejudiced against him. It is also contended by the learned counsel that the learned Judge in his previous order passed in Civil
Revision No.54 of 1987 though mentioned the cases cited by the applicant in support of his contention but did not discuss the same which has also raised a reasonable apprehension in the mind of applicant that if the present appeal is heard by the same learned Judge the applicant will not be able to get justice in the case. After hearing the learned counsel for the applicant at length I am neither impressed by his contentions nor I find any reasonable ground for entertaining the apprehension by the applicant that he will not get a fair trial at the hands of presiding officer of the Court of District Judge, South. The observation of the learned Judge in Civil Revision Application No.54 of 1987 while dismissing the same should be read in the context of the controversy which was brought before him in that case. It is well‑settled law that the Court while deciding they application under Order VII, Rule 11, CPC must confine itself to the reading of the plaint and at that stage the Court is not concerned with the pleas raised in defence by the defendants. It is therefore, quite clear that the observation made by the learned Judge in the above revision application with regard to the existence of a prima facie case after reading of the plaint in the suit were confined to the consideration of the prayer made for rejection of the plaint under Order VII Rule 11, CPC. There is absolutely no justification for the conclusion by the applicant that because the learned Judge had found existence of a prima facie case while refusing to reject the plaint under Order VII, Rule 11, CPC, he is likely to be influenced by his own observation in the appeal which has now arisen for grant o application under Order XXXIX, Rules 1 and 2, CPC. It is needless to mention here that the Court while holding existence of a prima' facie case in favour of a plaintiff in deciding an application under Order XXXIX, Rules 1 and 2, CPC not only considers the plaint, the written statement but also any other material which may be placed before it by the parties in this behalf in the shape of affidavits, counter‑affidavits, rejoinder and the documents. Whereas, the Court while dealing with the prayer for rejection of plaint under Order VII, Rule 11, CPC cannot look to any other material except the plaint and its accompaniments. In these circumstances the observations of the Court regarding existence of prima facie case while refusing to reject the plaint in a suit under Order VII, Rule 11, CPC neither binding on the Court nor is relevant for deciding the application under Order III, Rules 1 and 2, CPC. The other grievance of the learned counsel is that the rulings cited by him though mentioned by the learned Judge in his order passed in Civil Revision No.54 of 1987 were not discussed, is equally without any justification. It is quite obvious that the case‑law cited by the learned counsel before the Court in the previous Civil Revision related to the contention of applicant in defence of the suit and as such the learned Judge rightly 111refrained from expressing any opinion on these contentions as they, were not relevant for consideration at the stage of decision of ar4 application under Order VII, Rule 11, CPC. Learned counsel in support of his transfer application relied on the case of Federation of Pakistan v. Yahya Bukhtiar (PLD 1986 Quetta 138). In that case the High Court ordered transfer of the suit pending before the lower Court to the High Court on the ground that the case involved interpretation of constitutional provision and matters of public importance, besides the fact that the concerned Court had already expressed views on the points involved in the suit. No such case is made out in the present case. There is no merits in this Tr. Application which is dismissed summarily.
A . A . / C‑30/ KTransfer application dismissed.
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