PLJ 1987 Karachi 105

[Hyderabad Circuit Bench]

Present : syed haidir At! pirzada, J BOOLCHAND—Petitioner

versus

Qazi MUHAMMAD BACHAL—Respondent

Civil Transfer App. No. 8 of 1986, dismissed on 6-12-1986

(i) Civil Procedure Code, 1908 (V of 1908)—

------- S. 24—Transfer and withdrawal—General power of—Exercise of — Power of transfer provided only to limited extent under ssif-contain-ed enactment with limited remedies contemplated for aggrieved parties—Held : Parties to be required to work out their rights only within ambit of enactment and (should) be satisfied with whatever be contemplated for them in such situation by legislature. [P, 107]C

(ii) Civil Procedure Code, 1908 (V of 1908)—

------- S, 24—Transfer of case—Ground  for —Held : Mere fact of Judge being friend of other party by itelf not to warrant transfer of case. [P. 107]/

PLD 1956 FC 50 ref,

(isi)  Ciril Procedure Code, 1908 (V of 1908)—

------- S. 24 read with Sind Rented Premises Ordioance,   1979  (XVII   of 1979)—S. 4(3)—Transfer and withdrawal—General power of-Appli­cation for — Competency of—Specific provision provided ander self-contained enactment enabling relief of transfer — Held : Aggrieved party to necessarily resort only to such remedy as S, 24 of CPC to have no application (in such case), [P. !U7j£

(i?) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

— —Ss. 4, 19 & 20—Rent Controller—Procedure before — Civil Proce­dure Code, 1908 (V of 1908j—Applicability of—Held: Rent Con­troller functioning not like Civil Court, Code of Civil Procedure not to be invoked in toto in respect of proceedings conducted under Ordinance—Held farther : Necessary trappings of civil court not to be involved in procedings merely because of Controller recording evidence or adopting procedure more or less like civil court. [P, \Q1]A

(y)  Sind Rented Premises Ordinance, 1979 (XVII of 1979j—

S. 4 (3) and Civil  Procedure  Code,  1908 (V of 1908)—S.  24— Eviction application—Transfer of—Specific   provision (for transfer of eviction application) provided under S. 4 (3) of Ordinance -Held : Sind Rented Premises Ordinance, 1979 being self-contained enactment, remedies to be worked out as provided therein — Held further : Notified authorities being only persona designata and not courts, provisions of S. 24 of CPC not to be invoked. [Pp. 107 & 108]£

Mr. P. M. Amer, Advocate for Applicant.

Mr. Ismail Humeerani, Advocate for Respondent.

D«te of hearing : 11-11-1986.

ordbR

This is a petition under section 24

 (1) the Code of Civil Procedure.

The point involved herein is whethe by invoking section 24 (1) of the Code of Civil Procedure, a proceeding pending before the Rent Controller constituted under the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) can be transferred to another Controller. The opposition to this petition is denied on the claim that the Rent Controller constituted under Ordinance XVII of 1979 is "persona designata" and that the Controller will not come within the expression 'otber proceedings'as contemplated under section 24 (1) CPC. It is claim­ed that the Controller has closed family relations with the family of Kazi Abdul Aziz as well as Kazi Mohammad Bachal, the landlord. It is further claimed that the order of the District Judge is quite illegal and unjust.

On the first point as to whether the Rent Controller is a Court or perscna designata, Mr, Ismail Hameerani the learned counsel for the respondent relies upon the decision of the Hon'ble Supreme Court in the case of Khadim Mohyuddin and another v. Ch Rehmat Ali Nagra and another (PLD 1965 SC 459) wherein it was held that the Rent Controller acts in quasi judicial capacity and not as a Court.

The word 'Controller* is defined under section 2 (b) of the Ordinance. "Controller" means a Controller appointed under section 4 and includes a person working as Controller immediately before coming into force of the Ordinance. Subsection (1) of section 4 empowers the Government to appoint one or more Controllers in any district and if more than one Controller is appointed in the same.district, Government shall define the local limits within which each of such Controller shall exercise jurisdic­tion. Subsection (3) of section 4 authorises the District Judge or Deputy Commissioner to transfer cases from one Controller to another within the district. By notification No. VIII (3)/SDJ/75 dated 13-4-1980 published in the Sind Government Gazette, Part 1, May 29, 1980 the District Judges in the province are authorised to transfer cases from one Controller to another Controller within their respective districts.

By notification No. VIII (3)/SDJ/75 dated 14-10-1980 all Senior Civil Judges in the province and Civil Judge Badin and Joint Civil Judge, Shikarpur with not less than three years service as Civil Judge are to func­tion or act as Controllers within their jurisdiction. The Ordinance itself has made self-contained Act for transfer of proceedings by constituted authorities.

Therefore, to conclude on this point, when the Rent Controller is constituted by a notification and who incidentally happens to be Senior Civil Judge cannot be equated to exercise the powers of a civil court. The Controllers do not function like a civil court. The Code of Civil Proce­dure is not invoked in toto in respect of the proceedings conducted under the Ordinance. Merely because such Controllers record evidence or adopt a procedure more or less iike a Civil Court it cannot be held that all the necessary trappings of a civil court are involved in such proceedings. This is relevant factor to ascertain the nature of powers exercised and necessa­rily lead to the conclusion that they are not courts. In the light of what has been held in PLD 1965 SC 459, the Rent Controller under the Ordi­nance is only persona designate*.

B

Under section 24 (1) CPC only in respect of matters which are pending in any court subordinate to the High Court or District Court, the powers of withdrawal can be exercised. As held above they are not courts, and as to what relief would be available for aggrieved parties for having the matters transferred. Ordinance XVII of 1979 itseif haci provided a specific remedy. Subsection (3) of section 4 of the Ordinance, empowers the District Judge or Deputy Commissioner to transfer proceedings. ,In pursuance of powers conferred by the provisions of subsection (3) of section 4 of ;he Ordinance, the Government by a notification dated 13-4-1980 authorised the District Judges to transfer cases from one to another within the same jurisdiction. When a specific provision is provid ed under a self-contained enactment enabling relief of transfer, the aggricv ed party has to necessarily resort only to such a remedy and section 24 CPC can have no application. Hence, in this case, when the petitioner herein has already moved for relief under section 4 (3), he cannot file this petition under section 24 CPC.

Mr. Amer has submitted that there can be   no  inhibition  in  invoking the powers under section 24 CPC because   the  Rent Controllers are only subordinate  to  the   High  Court  and  the    powers   can  be concurrently ixercised.   I am of the view   that  such   a concurrent exercise  of powers exists but it deals with cases which would come  within the scope of section 24 CPC and not a case   wherein   the   subordinate  authorities   are  persona designaia and   inspite  of orders   passed  under  self-contained   enactment refusing transfer, the concurrent powers of the   High Court arc  invoked. As provided earlier, when the  power  of transfer  is provided  only  to  a! limited extent   under  a  self-contain-d  enactment  with limited  remedies!-contemplated for aggrieved parties, ibey have to work out  their rights only! within the ambit of the enactment and be satisfied   with   whatever   is  con-j templated for them in such situations by the legislature

t the easel fired0 irhilef

Since the petition itself is not maintainable, tatis js tu ,teci to go into the allegations made in the petition, Mr. Amer would not conten t without mentioning that in this case the transfer was asked for because the Rent Controller has close family relations with family of Kaz!» Abdul Aziz as well as the respondent, I do not think that the mere fact "ihst the Judge or Controller is a friend would by itself warrant transfer of a casej and this asoect was considered in the case of Mirza Akbar AH v. Mirz Iftikhv Alt and others (PLD 1956 FC 50) wherein it was held that whi! invoking section 24 CPC, this aspect cannot constitute a valid ground for transfer of the case.

In the light of what has been considered above, when specific provision! is made under section 4 (3) of the Ordinance which is self-contained   enact IE roent, remedies will have to be worked out as provided   therein  and  when! the notified authorities are only persona  desigfiata and not courts, section J24 CPC cannot be invoked.   Hence this petition is dismissed.

The above are the reasons for a short order  dated   11-11-86  passed by me after conclusion of the arguments.

(TQM)                                                                     Application dismissed.