2025 Y L R 1213
[Balochistan]
Before Shaukat Ali Rakhshani, J
DAROO KHAN and 2 others ---Petitioners
Versus
Haji ABDUL ZAHIR and 2 others ---Respondent
Civil Revision No. 587 of 2024, decided on 24th December, 2024.
Civil Procedure Code (V of 1908) ---
Ss. 24 & 151 ---Specific Relief Act (I of 1877), Ss. 8, 42 & 54 ---Civil Procedure Code (V
of 1908), O.XX, R.5 ---Suit for declaration, possession and permanent injunction ---
Application for transfer of case ---Bias of trial judge ---Apprehension ---Petitioners sought
transfer of the suit on account of remarks given by the trial judge in another application
as to veracity of an agreement, which were not supporting the stance of the petitioner in the main suit ---Appellate court dismissed the transfer application ---Validity ---
Observations made by the trial judge while deciding the application under Art. 59 of the Qanun -e-Shahadat, 1984, absolutely had not affected the merits of the case ---Trial judge
while rendering a final verdict had to decide each issue as contemplated under O.XX R.
5, C.P.C., thus, the apprehension of the petitioners was unnecessary ---For transfer of case
pecuniary interest and bias of a judge had to be demonstrated, which the petitioners failed to do so, case could not be transferred on the whims and wishes of the petitioner ---
Petitioners had failed to substantiate their stance, thus, apprehension of not getting justice from the trial judge could not be a ground for transfer of the case, as the one seeking transfer of the case had to prove bias of a judge through trustworthy evidence, which was not available in present case--- Civil revision was dismissed, in circumstances.
Asif Ali Zardari v. The State PLD 2001 SC 568; All Pakistan Newspaper Society v.
Federation of Pakistan PLD 2012 SC 1 and Ghulam Ali v. Dost Muhammad 2018 CLC 1578 rel.
Muhammad Hanif Khan Mandokhail for Petitioners.
Muammar Qazafi for Respondent No. 1.
Muhammad Allaudin, Additional Advocate General for Respondents Nos. 2 and 3.
Date of hearing: 13th December, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .--- The petitioners have called in question the
veracity and legality of order dated 26.09.2024 ("impugned order") authored by learned District Judge, Quetta ("Appellate Court"), whereby application for transfer of suit under section 24 read with section 151 of Civil Procedure Code, 1908 ("C.P.C.") was rejected. The petitioners in the instant petition have sought the following relief;
"In the light of above, it is therefore requested that this Hon'ble Court may kindly set aside the impugned order dated 26.09.2024 passed by the learned District Court and transfer the case title Haji Abdul Zahir and Daro Khan and others Civil Suit No.89/ 2017 from the Court of Civil Judge -II to another competent Court in the interest of
justice"
2. Condensed, but relevant facts for disposal of the instant petition are that a suit was
filed by respondent No.1- plaintiff for declaration, possession and permanent injunction
against the petitioners -defendants with the following prayer;
a. "Declaring that the plaintiff being legal, true and lawful recorded owner of the shop
No.4 street No.5 measuring 158 sq fts through khewat No.10 Khatooni No.18 Khasra No. 375 vide mutation No.507 with reference to mutation No.131 at Mohal and Mouza Ward No.19 Tappa Urban No.1 Cut piece Gali Masjid Road Quetta (Abdul Zahir Market) is entitled to enjoy the same.
b. Declaring that the defandants Nos.1 to 3 having no concern, connection or any single legal document or entitlement have illegally unlawfully occupied the shop No.4 (Abdul Zahir Market) Cut Piece Gali by breaking its lock, thus deprived the plaintiff from his legal and lawful right vested on it and now running his business in the same illegally"
3. The suit was contested by the petitioners -defendants by filing written statements,
whereas respondents Nos.2 and 3 were proceeded against ex- parte.
4. In order to establish the case, respondent No.1- plaintiff produced eight witnesses and
got recorded his statement, whereas in rebuttal, the petitioners -defendants produced nine
witnesses.
5. The Trial Court out of the divergent pleadings of the parties framed four issues.
However, during trial, the petitioners defendants filed an application for transfer of suit
under section 24 read with section 151 of C.P.C., which was rejected by the Appellate Court
vide impugned order, hence this petition.
6. Learned counsel for the petitioners inter alia contended that the learned Civil Judge -
II, Quetta ("trial judge") is biased, who before conclusion of the trial has made remarks,
showing his tilt towards the adversarial party, thus they have lost confidence to get justice
from the said court, henceforth requested for transfer of the case to any other court.
7. On the other hand, learned Addl: AG strenuously opposed the contentions so
advanced by learned counsel for the petitioners and urged that the petitioners have only
shown apprehension, but to substantiate their stance, they have not brought any concrete evidence on record, which could be made basis for transfer of the case, thus requested for dismissal of the petition.
8. Heard. Record perused.
9. Before diving into the allegations of the petitioners regarding biasness against the
learned trial judge, it would be appropriate to understand the connotation of the word 'bias' of a judge. The apex court, in the case of "Asif Ali Zardari v. The State" (PLD 2001 SC 568), while elaborating the connotation of word 'bias' has made reference to the definition incorporated in Corpus Juris Secundum, Volume X and observed that 'bias' has been described to be synonymous with the word 'partiality' and strictly to be distinguished from the word 'prejudice' and that it is a condition of a mind and has been held to refer, not to the views entertained regarding a particular subject -matter, but to the mental attitude or
disposition toward a particular person and to cover all varieties of personal hostility or prejudice. In the judgment ibid, it was held that 'bias' is said to be of three different kinds, which for ease of reference are reproduced herein below;
"(a) A Judge may have a bias in the subject -matter which
means that he is himself a party or has direct connection with the litigation, so as to constitute a legal interest.
A 'legal interest' means that the Judge is 'in such a position that a bias must be assumed'.
(b) Pecuniary interest in the cause, however, slight, will disqualify the Judge, even though it is not proved that the decision has in fact been affected by reason of such interest. For this reason, where a person having such interest sits as one of the Judges the decision is vitiated.
(c) A Judge may have a personal bias towards a party owing to relationship and the like or he may be personally hostile to a party as a result of events happening either before or during the trial. Whenever there is any allegation of personal bias, the
question which should be satisfied is - "Is there in the mind of the litigant a
reasonable apprehension that he would not get a fair trial?" The test is whether there
is a 'real likelihood of prejudice', but it does not require certainty." 'Real likelihood' is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or 'capricious persons'."
Likewise, the Supreme Court of Pakistan in the case of "All Pakistan Newspaper
Society v. Federation of Pakistan" (PLD 2012 SC 1), further reiterated the dictum as expounded in Asif Zardari's case supra.
10. Similarly, the Sindh High Court, in the case of "Ghulam Ali v. Dost Muhammad
(2018 CLC 1578), while adjudicating upon an application filed under section 24 of C.P.C. for transfer of the case relied upon the Asif Zardari's case supra and held that it is well settled principle that transfer of a matter from one court to another could only be granted in exceptional circumstances, where it was shown that the same would be in the interest of justice.
11. Now coming to the instant case, where the petitioners seek transfer of their case on
the ground of biasness of learned trial judge. It was argued that the learned trial judge at a
premature stage and before completion of evidence, while rendering the order dated
19.09.2024 on an application filed under Article 59 of Qanun- e-Shahadat Order, 1984
("Order of 1984") has made remarks that the purported agreement dated 04.02.2002 is not proved in terms of Article 79 of the Order of 1984 and that the said agreement does not
support the stance of the petitioners, which has not only caused prejudice to their case, but
the learned trial judge has almost loudly announced the judgment, thus they have lost
confidence in learned trial judge to impart justice. Undeniably, the learned trial judge has
referred to the statements of Saadullah (DW -7), Muhammad Qasim (DW -8) and Murtaza
(DW -9), while deciding an application filed under Article 59 of Order of 1984, but the
same has been discussed with regard to necessity of sending the purported agreement to the
FSL for experts opinion, but not otherwise. The observations made hereinabove absolutely
does not affect the merits of the case. Obviously, the learned trial judge, while rendering the final verdict shall decide each issue as contemplated under Order XX Rule 5 of C.P.C., thus the apprehension of the petitioners is unnecessary.
12. None of the grounds as laid down by the apex court in Asif Zardari's case supra are
available to the petitioners case, thus their case cannot be transferred on mere apprehensions and that too, on assumptions. Indisputably, for transfer of case pecuniary interest and bias of a judge has to be demonstrated, which the petitioners have failed to do so, therefore, the case cannot be transferred on the whims and whishes of the petitioners.
13. I have critically examined the impugned order and allegations levelled by the
petitioners, whereof I am of the considered view that that the petitioners have failed to substantiate their stance, thus an apprehension of not getting justice from the hands of the said court could not be a ground for transfer of the case as the one seeking transfer of the case has to prove bias of a judge through trustworthy evidence, which is not available in the instant case.
14. Corollary, the petition being shorn of merits is dismissed with no order as to cost.
SA/42/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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