P L D 2021 Supreme Court 579

Present: Mushir Alam and Syed Mansoor Ali Shah, JJ

Mst. KULSOOM RASHEED---Applicant
Versus
NOMAN ASLAM---Respondent
C.M.A. No. 284 of
2021, decided on 23rd February, 2021.
(For transfer of family suit from
one Province to another).
(a) Family Courts Act
(XXXV of 1964)---
----S. 25-A
(2-B)---Transfer of case from one Province to another by the Supreme
Court---Scope---Perusal of section 25-A (2-B) of the Family Courts Act, 1964
revealed that the Supreme Court may order the transfer of proceedings pending
from one jurisdiction to another more particularly from one Province to another
either at the motion of the parties or on its own motion without notice.
(b) Family Courts Act
(XXXV of 1964)---
----S. 25-A(2-B)---Constitution
of Pakistan, Art 10-A---Suit for recovery of
maintenance and dowry
articles---Transfer of execution proceedings from one
Province to
another---Suit filed by wife in the Family Court at city "I" was
decreed
ex-parte---Husband was resident of city "K" and the decree
could not possibly be
executed at "I"---Wife filed present
application seeking transfer of the case from
Family Court at "I" to
the court of competent jurisdiction/ Family Court at "K" in
terms of
S.25-A (2-B) of the Family Courts Act, 1964---Held, that looking into the
facts
and circumstances of the present case, it would be cumbersome to issue notice
to the husband, who was resident of "K"---Even otherwise it would
burden the
husband with heavy costs on travelling or contesting the matter at
"I"---In order to
protect the rights and interest of the parties and
to ensure that right to fair trial as
conferred by Art. 10-A of the
Constitution was protected, the Supreme Court could
always make an order of
transfer and the transferee court may take further
proceedings from where it
was left by the Court from which matter was transferred,
only after due service
of notice on the respondent---Present matter in issue related
to the execution
of a decree passed in favour of the wife, therefore, in order to
facilitate
expeditious disposal, the execution proceedings, were ordered to be
transferred
from the Family Court/Guardian Judge at "I" to the District Judge
(concerned) at "K" who was directed to assign the matter to the competent
Family
Court concerned for the purpose of the execution of the judgment and
decree after
due service on the husband---Application was disposed of.
Applicant in person.
Nemo for Respondent.
Date of hearing: 23rd February, 2021.
ORDER
 MUSHIR ALAM, J.---It appears that the suit for recovery of
maintenance and
dowry articles filed in the court of Judge Family Court,
Islamabad West was
decreed ex-parte vide judgment dated 24.02.2020. From the
record it appears that
the respondent is resident of Karachi and the decree could
not possibly be executed
at Islamabad. The applicant in person through titled
application prays for transfer
of the titled case from Judge Family Court Islamabad-West to the court of
competent
jurisdiction/ Judge Family
Court, Karachi (Sindh) in terms of section 25-A (2-B) of
the Family Courts Act,
1964. For facility of reference the said provision is
reproduced below:-
"25A.
Transfer of cases.---(1) Notwithstanding anything contained in any law
the High
Court may, either on the application of any party or of its own
accord, by an
order in writing.
...
(2a)...
(2b)
On the application of any of the parties and after notice to the parties and
after hearing such of them as desire to be heard, or of its own motion
without
such notice, the Supreme Court may at any state transfer any suit,
appeal or
other proceedings under this Act pending before a Court in one
Province to a
Court in another Province, competent to try or dispose of the
same."
(emphasis supplied)
2. Bare perusal of the above provision reveals
that this Court may order the
transfer of proceedings pending from one
jurisdiction to another more particularly
from one Province to another either
at the motion of the parties or on its own
motion without notice.
3. In view of the above stated legal position
and looking into the facts and
circumstances of the case, it would be
cumbersome to issue notice to the
respondent, who is resident of Karachi. Even
otherwise it will burden the
respondent with heavy cost on travelling or
contesting the matter here. In order to
protect the rights and interest of the
parties and to ensure that right as conferred by
Article 10A of the
Constitution "fair trial" is protected, this Court can always make
an
order of transfer and the transferee court may take further proceedings from
where it is left by the Court from which matter is transferred, only after due
service
of notice on the respondent. In view of the fact that the matter in
issue relates to the
execution of a decree passed in favour of the petitioner,
who is also the wife of the
respondent, the execution proceedings, in order to
facilitate expeditious disposal,
are ordered to be transferred from the Family
Court/Guardian Judge, Islamabad-
West to the District Judge, Karachi (concerned)
who shall assign the matter to the
competent Family Court concerned for the
purpose of the execution of the
judgment and decree noted above after due
service on the respondent.
4. This CMA is accordingly disposed of in the
above terms.
MWA/K-3/SC Ordeer
accordingly.
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