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2010 CLC 1078

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD RASOOL KHAN and 3 others----Petitioners

Versus

Mst. MASROON BIBI and 13 others----Respondents

Civil Revisions Nos.236, 237 and Civil Miscellaneous No.142 of 2004, decided on
18th September, 2008.

Guardians and Wards Act (VIII of 1890)---

----Ss. 8, 17, 25 & 48---Civil Procedure Code (V of 1908), S.115---Appointment of


guardian of person and property of minors---Mother of three minors filed
application for appointing her guardian of person and property of minors, which
application was accepted and she was appointed guardian of minors as prayed
for by her and guardian certificate was issued to her---Mother on the strength of
said guardianship certificate, sought leave of the court to sell the property
belonging to the minors in order to incur their expenditure for their betterment,
but the court refused to grant such leave and petition in that respect was
dismissed---Subsequently, Guardian Judge taking suo motu action, declared
guardianship certificate issued to the mother as cancelled; however on appeal
against said order of the Guardian Judge, Appellate Court set aside impugned
judgment of the. Guardian Judge and guardianship certificate was restored---
Father of the minors as well as the minors filed revision petition against
judgment of the Guardian Judge whereby the mother was allowed to sell the
property of the minors---In the application filed by the mother for appointing her
as guardian of person and property of minors, public-at-large as well petitioner
was a party who was served through proclamation in the newspaper and was
placed ex parte, which ex parte proceedings had never been challenged by the
petitioners---Such was purely a case under Guardians and Wards Act, 1890 to
which the provisions of C.P.C. were applicable in view of S.48 of the Guardians
and Wards Act, 1890---Revision petition before the High Court, in circumstances,
was competent, however on merits the petitioners had no case because the
mother was duly appointed as guardian of person and property of the minors
and permission to sell the property in question was obtained by her, which was
never challenged and guardianship certificate in favour of the mother was still
intact---Challenge to the proceedings by the petitioners was the result of greed
on their part to deprive the bona fide purchasers from their entitlement---No
illegality or material irregularity had been pointed out by the counsel for the
petitioner in the proceedings before the Guardian Judge and that of the
Appellate Court, which were well reasoned and based on sound appreciation of
evidence and called for no interference---Revision was dismissed.

Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139;
Ehsan-ur-Rehman v. Mst. Najma Parveen PLD 1986 SC 14; Akhawat Khan and
another v. Mst. Shui Khelay PLD, 1981 SC 454; Akhtar Ali Said Bacha v. Mst.
Naheed Bibi PLD 2003 Pesh. 63 and Mst. Ulfat Shaheen, v. Akram Khan and 2
others 2006 CLC 51 ref.

Rustam Khan Kundi for Petitioners.

Sh. Iftikharul Haq for Respondent No.1.

Abdul Aziz Khan Kundi for Respondents Nos.6 and 7.


Page No. 1 of 5
Date of hearing: 30th June, 2008.

JUDGMENT

MUHAMMAD ALAM KHAN, J.--- Through this consolidated judgment, I


propose to dispose of C.R.No.236 of 2004 (Muhammad Rasool Khan and 3 others
v. Mst. Masroon Bibi and 16 others) and C.R.No.237 of 2004 titled Muhammad
Rasool Khan and 3 others v. Mst. Masroon Bibi and 16 others as both of the
revision petitions arise between the same parties and involve common question
of law and facts.

2. Aggrieved from the judgment and order dated 5-5-2004 passed by learned
Additional District Judge-IV, Bannu, petitioner Muhammad Rasool Khan son of
Rab Nawaz Khan himself and on behalf of his minor sons has filed this civil
revision with the prayer that the said order may be set aside and the application
of respondent No.1 seeking her appointment as guardian of minors respondents
Nos.2 to 4 may be dismissed.

3. Scanned facts of the case are that vide application dated 30-9-2003 respondent
No.1 through attorney Walliullah Khan applied to the learned Senior Civil Judge,
Bannu for her appointment as guardian of the person and property of her three
minor sons namely Fida Hussain, Zia ur Rehman and Irfanullah Khan. During
the course of proceeding, when the trial was concluded, the learned Guardian
Judge, on 5-1-2004, appointed respondent No.1 Mst. Masroon Bibi wife of
Muhammad Rasool Khan petitioner as Guardian of person and property of her
three minor sons (petitioners Nos.2 to 4).

4. Being the legally appointed guardian, respondent No.1, on the strength of


guardianship certificate dated 5-1-2004 sought leave of the Court to sell the
property belonging to her minor sons in order to incur their expenditure for their
betterment, but the Court, vide dated 21-2-2004, refused to grant leave and thus,
the petition was dismissed.

5. On the same day i.e. 21-2-2004, present respondent No.1 alongwith petitioner
No.1 filed a joint criminal complaint under sections
419/420/468/471/466/472/198/200 P.P.C. before the learned Senior Civil
Judge/Guardian Judge against Waliullah Khan respondent No.2 in the capacity
of special attorney of Mst. Masroon Bibi etc respondents Nos.8 to 13 herein, with
the prayer that by playing fraud, misrepresentation and impersonation, the
respondents mentioned in the complaint have cheated the Court and have
fraudulently obtained guardianship certificate dated 5-1-2004 just to deprive the
minors of their valuable property.

6. The Court put to trial the subject complaint and summoned the respondents
for 4-3-2004. On 4-3-2004 present respondent No.1 submitted an application
seeking withdrawal of the complaint and in this connection her consenting
statement was also recorded. However, in view of the submission made in the
complaint, the Guardian Judge took a suo motu action and declared the
guardianship certificate as cancelled vide order dated 5-4-2004.

7 Feeling aggrieved of the suo motu order of the Guardian Judge dated 5-4-2004,
the present respondent No.1 assailed the same before the learned appellate
Court. During the pendency of appeal, on 5-5-2004, respondent No.1 herself
appeared before the learned appellate Court (Additional District Judge-IV, D.I.
Khan) and recorded her statement as Exh.P.A. by saying that Waliullah Khan is
her duly appointed attorney who has acted in due course of power of attorney
while the complaint was the result of some misunderstanding which was filed by
her but has been properly withdrawn subsequently. Keeping in view the
withdrawal of the complaint, coupled with consenting statement of respondent
Page No. 2 of 5
No.1, while confirming the status of her attorney Waliullah, the learned appellate
Court set aside the impugned judgment and the guardianship certificate dated 5-
1-2004 issued in the name of respondent No.1 was restored vide Guardian
Appeal No.3 of 2004. Against this order, the petitioner and his minor sons filed a
Writ Petition No.1013 of 2004 but subsequently the same was withdrawn by the
petitioner vide order dated 20-7-2004. The order of withdrawal is reproduced as
under: ---

"States that he be allowed to withdraw this petition at present as he intends to


challenge all/any order but independently. Dismissed as withdrawn with
permission as requested.

Office is directed that it shall return all the original certified documents to the
learned counsel for the petitioner by retaining photo copies for record."

8. The point in C.R.No.237 of 2004 is to the effect that the petitioners are
aggrieved from the orders of the learned appellate Court in Guardian Appeal
No.1 of 2004 decided on 15-5-2004 vide which, on filing of the appeal by Mst.
Masroon Bibi respondent No.1, the learned Additional District Judge had
granted permission to the guardian Mst. Masroon Bibi to sell the property of the
minors.

9. The petitioner and his minor sons have now assailed the orders dated 5-5-2004
and 15-5-2004 through the instant revision petitions.

10. It was argued by Mr. Rustam Khan Kundi, learned counsel for the petitioners
that the impugned orders are illegal and without jurisdiction, as the father of the
minors i.e. petitioner No.1 was abroad in connection of his service and Mst.
Masroon, though the real mother of the minor petitioners, was a Pardanashin
lady and she had no independent legal advice and thus, in view of the impugned
orders of the lower Court, she has sold the suit house belonging to the minors
through her attorney Waliullah on a very meagre price. It was also argued that
petitioner No.1 being father of the minors, was their natural guardian and during
his life time, mother could not he appointed as guardian of the person and
property of the minors. It was next contended that once it was proved that the
order was obtained through fraud and collusion, then the appellate forum has
fallen into an error in restoring the guardianship of minors in favour Mst.
Masroon Bibi respondent No.1 in spite of her consenting statement recorded in
Court. Sheikh Iftikhar-ul-Haq, learned counsel appearing for respondent No.1
adopted the arguments of Mr. Rustam Khan Kundi Advocate and in support of
his contention, he placed reliance on Karamat Hussain and others v. Muhammad
Zaman and others PLD 1987 SC 139.

11 Mr. Abdul Aziz Kundi, learned counsel appearing for respondents Nos.6 and
7 submitted that these revision petitions filed by the petitioners are not
competent in view of section 25 of the Family Courts Act as the Family Court,
while dealing with the custody application, should follow the procedure
contained in the Guardians and Wards Act, 1890 and while dealing with the
matter specified in that Act, should follow the procedure prescribed in that Act.
Elaborating his arguments, learned counsel submitted that as there is express
provision in the Family Court i.e. section 17 of the Act (ibid) under which the
application of Code of Civil Procedure has been specifically excluded except
sections 10 and 11 and under section 14, right of appeal is provided but in view
of the exclusion of the provisions of Code of Civil Procedure, no revision would
lie. Reliance in this respect was placed on the judgments handed down in the
cases of Ehsan-ur-Rehman v. Mst. Najma Parveen PLD 1986 SC 14, Sakhawat
Khan and another v. Mst. Shui Khelav PLD 1981 SC 454, Akhtar Ali Said Bacha v.
Mst. Naheed Bibi PLD 2003 Pesh. 63 and Mst. Ulfat Shaheen, v. Akram Khan and
two others 2006 CLC 51 (Peshawar). On the strength of these rulings, it was
submitted that the revision petitions will not be competent before this Court.
Page No. 3 of 5
12. On merits, the learned counsel submitted that Mst. Masroon Bibi, respondent
No.1 had applied to the Guardian Judge/Senior Civil Judge, Bannu for her
appointment as guardian of the person and property of the minors (petitioners
Nos.2 to 4) which was duly granted and that guardianship is still intact and
respondent is performing her duty as guardian, so much so, that she in due
course of law obtained permission from the Guardian Judge and sold the house
in favour of respondents No.6 and 7 but subsequently, when the value of the suit
house increased, this prompted the petitioner as well as respondent No.1 to
move for the cancellation of the same in order to deprive the bona fide
purchasers from the ownership of the house. It was submitted that the conduct of
petitioner and respondent No.1 was that once they challenged the matter in a
criminal complaint on the ground that Waliullah Khan, attorney, of Mst.
Masroon Bibi had played fraud on her and had deprived her of her property but
subsequently she recorded a consenting statement that Waliullah had been duly
appointed as attorney and the issuance of the guardianship certificate as well as
the permission of the Guardian Judge to sell the property of the minors for their
benefit was a valid action by her attorney. Thus, it was submitted that the
petitioner has not come to the Court with clean hands.

13. I have given my anxious consideration to the facts and circumstances of the
case and have perused the record with the valuable assistance of learned counsel
for the parties.

14. The objection with respect to the competency of the revision petition is not
well founded because the present case was not for the custody of the minors
pending before a Family Court and secondly, there was no dispute between
husband and wife with respect to the said custody. Mst. Masroon Bibi,
respondent No.1, had applied to the Guardian Judge to be appointed as guardian
of person and property of the minors which was duly granted. In that
application public-at-large as well as petitioner Muhammad Rasool was a party
who was served through proclamation in the newspaper and was placed ex parte
which ex parte proceedings have never been challenged by the petitioner, rather
he was in league with his wife challenging the proceedings by way of a criminal
complaint against Waliullah, the attorney of Mst. Masroon Bibi and thus, tried to
deprive the valid purchasers from their right. So, it was purely a case under the
Guardians and Wards Act to which the provisions of Code of Civil Procedure
were applicable in view of section 48 of the Act (ibid) which is reproduced as
under:---

"48. Finality of other order.--- Save as provided by the last foregoing section and
by section 115 of the Code of Civil Procedure, 1908 (Act V of 1908) an order made
under this Act shall be final, and shall not be liable to be contested by suit or
otherwise."

Thus, in view of the express provisions of Code of Civil Procedure being made
applicable to the guardianship proceedings before the Guardian Judge, the
revision petitions before this Court were competent. The case-law cited by
learned counsel for the respondents has got no nexus with the instant case
because in those cases, the matter was pending before the Family Courts for the
custody of the minor when the relations between the spouse became strained
and each one of them was claiming the custody of the minor.

15. On merits, the petitioners have got no case because Mst. Masroon Bibi was
duly appointed as guardian of the person and property of the minors and
permission to sell the house in favour of the respondents was obtained by her
which was granted by the Guardian Judge and pursuant to that permission, the
house was sold which has never been challenged either by Mst. Masroon Bibi or
the petitioners. The guardianship in favour of Mst. Masroon Bibi is still intact
and similarly, the power of attorney in favour of Waliullah, respondent No.2
Page No. 4 of 5
which the respondent Mst. Masroon Bibi has owned. The challenge of
proceedings by the petitioner Muhammad Rasool was the result of greed on his
part to deprive the bona fide purchasers from their entitlement.

1.6 No illegality or material irregularity has been pointed out by the learned
counsel for the petitioner in the proceedings before the Guardian Judge and that
of the appellate Court which are well reasoned and based on sound appreciation
of evidence which call for no interference.

17. In view of the facts and circumstances of the case, there is no force in these
revision petitions, and the same are dismissed with no order as to costs.

H.B.T./99/P Petitions dismissed.

Page No. 5 of 5
2008 C L C 1391

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

ZULEKHA BIBI and 5 others----Appellants

Versus

ALI UMMAR----Respondent

Civil Appeal No.7 of 2005, decided on 3rd June, 2008.

Guardians and Wards Act (VIII of 1890)---

----Ss. 7, 39, 47 & 48---Azad Jammu and Kashmir Family Courts Act (XI of 1993),
S.21---Appointment of guardian---Removal of guardian, application for---Appeal
to Shariat Court---Guardian Judge appointed respondent as guardian of person
and property of minors---Application was moved- for removal of guardian on
the ground that respondent had abused her trust and did not take proper care of
the minors and it was further alleged that respondent had ill-treated the
minors---Guardian Judge dismissed application for removal of guardian---
Validity---Provisions of S.39 of Guardians and Wards Act, 1890 had to be
followed which prescribed the grounds for removal of the guardian, whereas
S.47 of said Act had defined appealable orders---Appeal could be presented to
the Shariat Court only against order of removal of guardian under S.47 Clause
(g) of Guardians and Wards Act, 1890, but no appeal had been provided by said
Act when the court refused to remove a guardian---Guardian Judge having
refused to remove the guardian, appeal was not tenable under the Guardians
and Wards Act and was liable to be dismissed on that score alone---Even
otherwise impugned order having attained finality under S.48 of the Guardians
and Wards Act, 1890, could not be contested by the appellants.

Irshad begum's case 2003 YLR 3245; Mst. Robeena Fazil's case 2005 SCR 37; Mst.
Zakia Khatoon's case 1998 SCR 140; Mst. Azra Bi's case 2002 MLD 1213 and
Bashir Bibi's case 2005 YLR 547 ref.

AIR 1921 Pat. 166(2); AIR 1925 Oudh 260 and AIR 1948 All. 296 rel.

Syed Riaz Hussain Naqvi for Appellants.

Karamdad Khan for Respondent.

ORDER

IFTIKHAR HUSSAIN BUTT, J.--- The above captioned appeal has been
presented against the decision of learned Judge, Family Court, empowered as
Guardian Judge, Muzaffarabad, dated 17-12-2004, whereby an application filed
by the petitioners for removal of the guardian-respondent was dismissed.

Necessary facts forming the background of instant appeal are that Ali Ummar,
respondent herein, filed an application for the appointment of guardian of the
minor appellants Nos.2 to 6 before Guardian Judge, Muzaffarabad on 19-4-2003
on the ground that mother of the minors is detained in a murder case registered
against her for the murder of her husband; therefore, being uncle of the minors
he is entitled to be appointed as guardian. During the course of proceedings, the
respondents Muhammad Hussain, Mir Afzal, Ghulam Haider and Mst, Chan Bi
conceded the aforesaid petition whereas appellant No.1 also submitted before
the Court below that the respondent may be appointed guardian of the minors.
Page No. 1 of 6
The learned Guardian Judge after recording the ex parte evidence, appointed the
respondent, herein, guardian of person and property of the minor-appellants
Nos.2 to 6 vide its decision dated 3-6-2003.

On 28-8-2003 the appellants filed an application for the removal of guardian on


the ground that respondent has abused her trust and did not take proper care of
the minors. She further alleged that the respondent has ill-treated the minors and
has taken away Rs.19,200 the pay of deceased father of minors.

The respondent filed his objections and refuted the allegations levelled by the
appellants. He further submitted that he is taking proper care of the minors and
appellant No.1, who has murdered her husband, wanted to dispose of the
property of the minors whereas he has transferred the land of his deceased
brother in the name of the minors-appellants through a gift deed.

The learned Guardian Judge after recording the evidence dismissed the
application for removal of the guardian vide its decision, dated 17-12-2004.
Hence, this appeal.

Syed Riaz Hussain Naqvi, Advocate, the learned counsel for the appellants,
argued with vehemence that the proceedings for appointment of guardian are
fake and fictitious; therefore, the order, dated 3-6-2003 is null and void but the
learned Guardian Judge failed to consider the aforesaid aspect of the case and
dismissed the application for removal of the guardian in a hasty manner which is
not sustainable. The learned counsel further contended that the respondent
guardian is misusing the property of the minors and not performing his duty in a
proper and befitting manner; therefore, appellant No.1, mother of the guardian,
is looking after the minors. The learned counsel finally submitted that appellant
No.1 being mother of the minors is natural guardian who may be appointed as
guardian of the minors and respondent be removed. In support of the
arguments, the learned counsel referred to me the following authorities:--

(1) 1998 SCR 140, (2) 2003 YLR 3245, (3) 2005 YLR 547 and (4) 2005 SCR 37.

Conversely, Karamdad Khan, Advocate, the learned counsel for the respondent
submitted that the respondent has been appointed guardian under section 7 of
The Guardians and Wards Act, 1890 (hereinafter to be referred as the Act) but the
appellants failed to prove the conditions for removal of guardian enumerated in
section 39; therefore, application of removal of the guardian is liable to be
dismissed. The learned counsel pointed out that appellant No.1 has murdered
her husband; therefore, she is not entitled to be appointed guardian for the
person and property of the minors. The learned counsel maintained that
respondent is taking proper care of the minors and he has also transferred the
property of the deceased, father of the minors in favour of minors through gift
deed dated 21-4-2003 which proves the intention of the respondent that he is
very much interested for the welfare of the minors and he is faithful in
performance of her duties. The learned counsel laid great stress upon the point
that the respondent has spent the money in the interest of minors and has proved
the same while producing the relevant receipts. The learned counsel finally
submitted that the impugned decision has been recorded in accordance with law,
which does not warrant any interference by this Court.

After hearing the arguments of the learned counsel for the parties, the judgment
was reserved and after perusing the record, the following points were
formulated by this Court on 27-10-2007:---

(1) Whether an appeal lies against an order refusing to remove a guardian?

Page No. 2 of 6
(2) Whether a guardian ceases when a ward attains the age of majority and what
is the age of majority under the relevant law?

The arguments were also heard pro and contra on the aforesaid points. The
learned counsel for the appellants contended that in the light of case-law cited,
the instant appeal is tenable. He further submitted that when a minor attains the
age of 18 years, the guardian ceases to act.

On the other hand, the learned counsel for the respondent argued that the order
refusing for removal of guardian is not appealable under section 47 of the Act;
therefore, instant appeal is liable to be dismissed. The learned counsel further
maintained that when a guardian is appointed by the Court, the minor, will
attain majority at the age of 21 years. To substantiate the contentions, reliance
was placed upon (i) AIR 1921 Pat. 166(2), (ii) AIR 1925 Oudh 260 and AIR 1948
All. 296.

I have given my deep consideration to the arguments addressed at Bar and


perused the record made available. At the very outset, it will be pertinent to note
that under section 21 of the Azad Jammu and Kashmir Family Courts Act, 1993, a
Family Court has been empowered to act like a District Court for the purposes of
the Guardians and Wards Act, 1890 and while dealing with the matters
mentioned in the Act, the District Court shall follow the procedure provided in
the aforementioned Act. In this manner, the Family Court has to follow the
procedure provided by the Act. As stated earlier, the instant appeal has been
filed against the order of refusal to remove the guardian appointed by the Court
below. Therefore, the provision of section 39 of the Act has to be followed which
prescribes the grounds for removal of the guardian whereas section 47 of the Act
defines the appealable orders. To appreciate the preposition, the relevant sections
39 and 47 of the Act are reproduced:

"39. Removal of Guardian.--- The Court may, on the application of any person
interested, or of its own motion, remove a guardian appointed or declared by the
Court, or a guardian appointed by will or other instrument, for any of the
following causes, namely:

(a) for abuse of his trust;

(b) for continued failure to perform the duties of his trust;

(c) for incapacity to perform the duties of his trust;

(d) for ill-treatment, or neglect to take proper care, of his ward;

(e) for contumacious disregard of any provision of this Act or of any order of the
Court;

(f) for conviction of any offence implying, in the opinion of the Court, a defect of
character which unfits him to be the guardian of his ward;

(g) for having an interest adverse to the faithful performance of his duties;

(h) for ceasing to reside within the local limits of the jurisdiction of the Court;

(i) in the case of a guardian of the property, for bankruptcy or insolvency;

(j) by reason of the guardianship of the guardian ceasing or being liable to cease,
under the law to which the minor is subject:

Provided that a guardian appointed by will or other instrument, whether he has


been declared under this Act or not, shall not be removed---
Page No. 3 of 6
(a) for the cause mentioned in clause (g) unless the adverse interest accrued after
the death of the person who appointed him, or it is shown that, that person made
and maintained the appointment in ignorance of the existence of the adverse
interest, or

(b) for the cause mentioned in clause (h) unless such guardian has taken up such
a residence as, in the opinion of the Court, renders it impracticable for him to
discharge the functions of guardian."

"47. Orders appealable.--- An appeal shall lie to the High Court from an order
made by a Court

(a) under section 7, appointing or declaring or refusing to appoint or declare a


guardian or

(b) under section 9, subsection (3), returning an application, or

(c) under section 25, making or refusing to make an order for the return of a
ward to the custody of his guardian, or

(d) under section 26, refusing leave for the removal of a ward from the limits of
the jurisdiction of the Court, or imposing conditions with respect thereto, or

(e) under section 28 or section 29, refusing permission to a guardian to do an act


referred to in the section, or

(f) under section 32, defining, restricting or extending the powers of a guardian,
or

(g) under section 39, removing a guardian, or

(h) under section 40, refusing to discharge a guardian, or

(i) under section 43, regulating the conduct or proceedings of a guardian or


settling a matter in difference between joint guardians or enforcing the order or

(j) under section 44 or section 45, imposing a penalty:"

A careful perusal of the above stated provisions of law shows that on which
grounds, a guardian appointed by the Court can be removed. Similarly, the
appealable orders have also been pointed out. On this account, an appeal can be
presented to this Court only against an order of removal of guardian under
section 47 clause (g) but no appeal has been provided by the Act when the Court
refuses to remove a guardian.

Coming to the instant case, the learned Judge, Family Court acting as District
Judge for the purposes of the Guardians and Wards Act has refused to remove
the guardian; therefore, the present appeal is not tenable and liable to be
dismissed on this score only. My aforesaid view finds support from a case titled
Suraj Narayan Singh v. Bishambhar Nath Bhan AIR 1925 Oudh 260, where the
following principle was enunciated:

"I am satisfied that no appeal lies from the order to which reference has already
been made. The right of appeal must always be founded upon an express rule to
that effect or a rule by unavoidable implication. The only .appeal permissible
with reference to an order under section 39 of the Act is only against an order
removing a guardian under that section. The words removing a guardian under
clause (d) of section 47 are not descriptive of the section but of the order against
which appeal is provided for. This is borne out by reference to the language of
Page No. 4 of 6
clause (a) of section 47 where we find, with reference to section 7, an appeal
permitted from an order refusing to appoint a guardian, though section 7 does
not in terms provide for such an order. There is also authority that an order
refusing to remove a guardian is not appealable, though obviously such an order
shall ordinarily be passed in proceedings falling under section 39 of the Act; See
Pakhwanti Dai v. Indra Narain Singh (1896) 23 Cal. 201 and In re: Bai Harkha
(1896) 20 Born. 667. The appellant is not aggrieved with the order removing the
respondent from the guardianship. There is, therefore, no appeal before me in
terms of clause (g) of section 47. In my opinion the present appeal is not
maintainable."

It may also be mentioned here that impugned order has attained finality under
section 48 of the Act and cannot be contested by the appellants.

The next question, which requires determination is whether Zubair Qasim has
attained majority; therefore, the authority of guardian ceases under section 41
subsection (1) clause (c) of the Act. It has been argued by the learned counsel for
the appellants that Zubair Qasim has attained majority because at the time of
presentation of application for appointment of guardian on 19-4-2003, Zubair
Qasim was 13 years old; therefore, he has attained the age of 18 years at the time
of filing of appeal. Thus, the authority of guardian ceases. It is very important to
observe that under section 3 of The Majority Act, 1875 when a guardian is
appointed by the Court his authority ceases when the minor attains the age of 21
years and not the age of 18 years; therefore, the authority of respondent-guardian
does not cease even to the extent of Zubair Qasim until he attains the age of 21
years. In this respect reference can be made to a case titled Shaikh Abdul Rahim
v. Mst Barira and others AIR 1921 Pat. 166(2), wherein it has been opined:---

"Where once a certificated guardian is appointed of a minor, the minor will attain
majority only at the age of 21 years, although the guardianship certificate is
cancelled before minor's attaining majority."

The same view was affirmed in the case reported as Muhammad Yusuf and
another v. Abdul Wahid AIR 1948 All. 296, wherein it has been held as under:--

"There is the finding of fact by the learned Civil Judge that the defendant
opposite party was born in 1910. He was, therefore, minor in 1929. It is in
evidence that in the year 1921 the defendant's mother, Mst. Hanifa, was
appointed his guardian. By virtue of section 3, Majority Act, 1875, the defendant
attained majority on the completion of 21 years. The learned counsel for the
applicant, however, contends that as subsequent to her appointment as a
guardian Mst. Hanifa died, the age of majority of the defendant was reduced to
18 after her death. I am unable to agree with this contention. In 57 I.C. 678, it was
held that the termination of the guardianship does not make any difference to the
age of majority, for the Indian Majority Act expressly declares that every minor
of whose person or property a guardian, other than a guardian ad litem, has been
appointed by any Court of justice "shall be deemed to have attained the majority
when he shall have completed the age of 21 years and not before". The effect of
this provision is that once a guardian of a minor is 'validly appointed that
minor's age of majority becomes fixed by law at 21 and nothing which may
subsequently transpire can have the effect of reducing it to 18."

So far as the case-law referred to by the learned counsel for the appellant is
concerned, Mst. Zakia Khatoon's case 1998 SCR 140, Mst. Azra Bi's case 2003
MLD 1213 and Bashir Bibi's case 2005 YLR 547 pertain to the custody of minors
rather than the question of appointment of guardian of their person and
property. Similarly, Irshad Begum's case 2003 YLR 3245 and Mst. Robeena Fazil's
case 2005 SCR 37 are beyond the controversial issue and have nothing common
with the facts of present case.

Page No. 5 of 6
In view of the aforesaid position, it is not deemed expedient to interfere in the
impugned decision, it is, therefore, sustained and the appeal is dismissed.

H.B.T./25/Sh.C.(AJ&K) Appeal dismissed.

Page No. 6 of 6
2006CLC51

[Peshawar]

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

Mst. ULFAT SHAHEEN---Petitioner

versus

AKRAM KHAN and 2 others---Respondents

Writ Petition No. 82 of 2004, decided on 30th September, 2004.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched., & 14---Guardians and Wards Act (VIII of 1890), Ss.47 & 48---
Constitution of Pakistan (1973), Art.199---Constitutional petition---
Maintainability---Custody of minor---Guardian Judge granted custody of minor
to petitioner, but District Judge in appeal reversed judgment of. Guardian
Judge---Petitioner had filed constitutional petition against judgment of District
Judge passed in appeal---Respondents raised a preliminary objection to the effect
that in view of 5.48 of Guardians and Wards Act, 1890, a revision could have
been filed which was adequate remedy and that constitutional petition filed by
petitioner was not competent---Validity---Family Court would not only have
exclusive jurisdiction to decide matters relating to custody of children and
guardianship etc., but would also be deemed to be a District Court for the
purposes of Guardians and Wards Act, 1890 and that an appeal against an order
passed by a Family Court would lie to District Judge under 5.14 of West Pakistan
Family Courts Act, 1964 when Family Court was presided over by a Judge
subordinate to a District Judge and that would be an end of the matter---
Aggrieved person could file constitutional petition in the High Court, and that
too when finding of District Judge was based on misreading, non-reading of
evidence, erroneous assumption of law and fact or was founded on
considerations which were extraneous to the record---Although in view of S.48 of
Guardians and Wards Act, 1890 a revision was competent .against an order
passed by a District Judge, but that provision could not be read in isolation and
in disregard of 5:14 of West Pakistan Muslim Family Courts Act, 1964 which
being subsequent Legislation would have an overriding effect on all other laws
for the time being in force, especially when it was prefaced by a non obstante
clause---Only constitutional petition, would be competent in that state of law.

Niaz Ahmad v. Mst. Nasim Akhtar and 2 others 1983 CLC 183; Mst. Zubeda Naz
v. Asif Rashid Minhas and another PLD 1999 Quetta 29 and Ihsan-ur-Rahman v.
Mst. Najma Parveen PLD 1986 SC 14 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 14---Guardians and Wards Act (VIII of 1890), Ss.25, 47 & 48---
Constitution of Pakistan (1973), Art.199--- Constitutional petition---Custody of
minor--- Guardian Judge granted custody of minor to petitioner, but District
Judge in appeal reversed judgment of Guardian Judge, against which petitioner
had filed constitutional petition---District Judge while deciding case was
influenced by prescriptions of a Psychiatrist and drew inferences therefrom
without realizing that said prescriptions were neither produced in original nor
their author was examined to prove them in accordance with provisions of law
of evidence---District Judge could not have taken into consideration any of those
prescriptions without proper proof and it was an error of law which would
entitle High Court to interfere in exercise of its constitutional jurisdiction, if a
finding of fact was based on no evidence or was contrary to evidence on record
Page No. 1 of 7
or inferences drawn therefrom were not in accordance with law---Finding of
District Judge being tarred with error of law and jurisdiction, could not be
maintained---Impugned judgment and order were set aside and case was sent
back for decision afresh in accordance with law within specified period after
examining Psychiatrist as a Court witness.

Baldwin and Francis Ltd. v. Parents Appeal Tribunal 1959 AC 663; Rahim Shah
v. Chief Election Commissioner PLD 1973 SC 24; Assistant Collector v. Al-Razak
Synthetic (Pvt.) Ltd. 1998 SCMR 2514 and Muhammad Lehrasab Khan v. Mst.
Ageel-un-Nisa and 5 others 2001 SCMR 338 ref.

S. Zafar Abbas Zaidi for Petitioner.

Rustam Khan Kundi -for Respondents.

Date of hearing: 30th September, 2004.

JUDGMENT

EJAZ AFZAL KHAN, J.--- The petitioner, Mst. Ulfat Shaheen, who was granted
the custody of minors by the learned Guardian Judge, Bannu vide his judgment,
dated 12-4-2004 filed the instant constitutional petition when it was reversed by
the learned District Judge in appeal vide his judgment, dated 11-5-2004.

2. Before we could take up the case for hearing, the learned counsel for the
respondents raised a preliminary objection by submitting that in view of section
48 of the Guardians and Wards Act, a revision could well be filed which is by all
means an adequate remedy, therefore, this constitutional petition is incompetent.
The learned counsel to support his contention placed reliance on the case of Niaz
Ahmad v. Mst. Nasim Akhtar and 2 others 1983 CLC 183.

3. As against that, the learned counsel appearing on behalf of the petitioner


contended that in view of section 5 of the West Pakistan Family Courts Act, it is
exclusive jurisdiction of the Family Court to adjudicate upon the matters
specified in the Schedule, therefore, no other Court is competent to entertain,
hear and adjudicate upon a lis relating to custody of children and guardianship,
and that any order passed by such Court subject to the result of appeal under
section 14 of the Act shall be final, as such, constitutional petition is the only
remedy in this state of affairs. The learned counsel referred to the case of Mst.
Zubeda Naz v. Asif Rashid Minhas and another PLD 1999 Quetta 29.

4. On merits of the case, the learned counsel for the petitioner argued that the
entire finding of the learned Additional District Judge is based on photostat
prescriptions of the Psychiatrist which have not been proved on the record in
accordance with the requirements of law of evidence, therefore, it being
unsustainable is liable to be set aside.

5. The learned counsel for the respondents defended the impugned judgment by
arguing that when the petitioner admitted that she was examined by a
Psychiatrist and that his prescriptions are with her father-in-law, even photostat
could be considered by the learned Additional District Judge while deciding the
case.

6. Before we answer the objection raised by the learned counsel for the
respondents, we would like to refer to sections 47 and 48 of the Guardians and
Wards Act, which is reproduced hereinbelow:--

Orders appealable.--- An appeal shall lie to the High Court from an order made
by a Court---

Page No. 2 of 7
(a) under section 7, appointing or declaring or refusing to appoint or declare a
guardian or

(b) under section 9, subsection (3), returning an application, or

(c)under section 25, making or refusing to make an order for the return of a ward
to the custody of his guardian, or

(e)under section 26, refusing leave for the removal of a ward from the limits of
the jurisdiction of the Court, or imposing conditions with respect thereto, or

(f) under section 28 or section 29, refusing permission to a guardian to do an act


referred to in the section, or

(g) under section 32, defining, restricting or extending the powers of a guardian,
or

(h) under section 39, removing a guardian, or

(i)under section 40, refusing to discharge a guardian, or under section 43,


regulating the conduct or proceedings of a guardian or settling a matter in
difference between joint guardians or enforcing the order, or

(j) under section 44 or section 45, imposing a penalty:

Provided that where the order from which an appeal is preferred is passed by an
officer subordinate to a District Court, the appeal shall lie to the District Court. "

7. A perusal of the above quoted provision reveals that an appeal against an


order passed under the Guardians and Wards Act will lie to the High Court, but
it may be noted that the said provision was amended by Guardians and Wards
(Amendment) Ordinance (IX of 1980), whereby it was provided that where the
order from which an appeal is preferred is passed by an Officer subordinate to a
District Court, appeal shall lie to the District Court. But who is to try such cases,
where appeals are to be preferred under the latest dispensation, what would be
the status of such decision and how far shall it be final are the propositions in
controversy, which too cannot be attended to without referring to the relevant
provisions of the West Pakistan Family Courts Act, 1964 (XXXV of 1964), which
are thus, reproduced as under:--

"Section 5 Jurisdiction.--- Subject to the provisions of the Muslim Family Laws


Ordinance, 1961 and the Conciliation Courts Ordinance, 1961, the Family Courts
shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters
specified in the Schedule.

Schedule

(1) Dissolution of marriage.

(2) Dower.

(3) Maintenance.

(4) Restitution of conjugal rights.

(5) Custody of children.

(6) Guardianship.

(7) Jactitation of marriage.


Page No. 3 of 7
(8) Dowery.

Section 14 (1) Notwithstanding anything provided in any other law for the time
being in force, a decision given or a decree passed by a Family Court shall be
appealable.---

(a) to the High Court where the Family Court is presided over by a District
Judge, an Additional District Judge or a person Notified by Government to be of
the rank and status of a District Judge or an Additional District Judge, and

(b) to the District Court, in any other case.

(2) No appeal shall lie from a decree passed by a Family Court---

(a) for dissolution of marriage, except in the case of dissolution for reasons
specified in clause (d) of item (vii) of section 2 of the Dissolution of Muslim
Marriage Act, 1939.

(b) for dower not exceeding rupees fifteen thousands';

(c) for maintenance of rupees five hundred or less per month.

(3) The appellate Court referred to in subsection (1) shall dispose of the appeals
filed under this section within a period of four months.

Section 25. Family Court deemed to be a District Court for purposes of


Guardians and Wards Act, 1890.--- A Family Court shall be deemed to be a
District Court for the purposes of the Guardians and Wards Act, 1890, and
notwithstanding anything contained in this Act shall in dealing with matters
specified in that Act, follow the procedure prescribed in that Act."

8. A look at the above quoted provisions would reveal that a Family Court shall
not only have exclusive jurisdiction to decide matters relating to the custody of
children and guardianships etc. but shall also be deemed to be a District Court
for the purposes of the Guardians and Wards Act and that an appeal against an
order passed by a Family Court will lie to the District Judge under section 14 of
the Act when the Family Court is presided over by a Judge subordinate to a
District Judge and that would be an end of the matter. An aggrieved person can
file a writ petition in the High Court, that too when the finding of the learned
District Judge is based on misreading, non-reading of evidence, erroneous
assumption of law and fact, or is founded on considerations which are
extraneous to the record.

9. It is true that in view of section 48 of the Guardians and Wards Act, a revision
is competent against an order passed by a District Judge, but this provision
cannot be read in isolation and in disregard of section 14 which being subsequent
legislation would have an overriding effect on all other laws for the time being in
force, especially when it is prefaced by a non obstante clause. This controversy
was set at rest by the Honourable Supreme Court in the case of Ihsan-ur-Rehman
v. Mst. Najma Parveen PLD 1986 SC 14 in the following words:--

"Section 47 in its purview enacted that all appeals from orders referred therein
passed under the Guardians and Wards Act by the Court (as defined in the
Guardians and Wards Act) would lie to the High Court (before the amendment).
The decision of the Court (defined in section 4(5)(a) of the Guardians and Wards
Act as the "District Court" even if it was presided over by a Civil Judge
subordinate to a District Court, by virtue of enabling provision contained in
section 4-A of the Guardians and Wards Act, was appealable under section 47
only to the High Court. The amendment made in 1980 provided that when `the
Page No. 4 of 7
Court' was presided over by a Civil Judge subordinate to the District Court, the
appeal shall lie to the District Court and not to the High Court. The argument
advanced in the case of Muhammad Din Malik was that if an appeal under
section 47 was not competent in a case decided by a Family Judge, then there was
no need for the Legislature to have made the amendment at all. Prima facie the
argument is attractive that is why leave to appeal was granted. But on deeper
scrutiny, it seems that the amendment was made by the Legislature under some
misapprehension. It seems that the law declared by the Lahore High Court in the
case of Parveen and Manzoor Hussain (decided in 1975 and 1977) was treated to
have concluded the controversy and the contrary view taken in the earlier cases
decided in 1971, 1972 and 1973 (Karachi), it was assumed to have been
superseded by the Lahore cases. If so, it was wrong assumption because the two
different views were expressed by separate High Courts and although the view
of one has persuasive value for the other, they were not as such binding on each
other. Be that as it may be overruled view expressed in the Lahore cases was, it
has been noted earlier, made the basis of bringing, amendment, the proviso in
section 47, on the assumption that the appeal (as held in the Lahore cases) was
competent under section 47 of the Guardians and Wards Act and not under
section 14 of the Family Courts Act. This incorrect assumption led to the
enactment of the proviso."

10. Having thus, considered in the light of the foregoing discussion and the
above quoted dictum of the apex Court, we have no hesitation to hold that only a
constitutional petition shall be competent in this state of law.

11. Now we are to see whether the learned Additional District Judge has based
his finding on an evidence as could be looked into under the law. A perusal of
the impugned judgment would reveal that the learned Judge while deciding this
case was influenced by the prescriptions of Psychiatrist and drew inferences
therefrom without realizing that the prescriptions were neither produced in
original nor their author was examined to prove them in accordance with the
provisions of the law of evidence. He could not have taken into account any of
those prescriptions without proper proof. Now the question is whether it is an
error of law? We have no doubt in our mind that it is; and it is an error of law
which will entitle this Court to interfere in the exercise of its constitutional
jurisdiction if a finding of fact is based on no evidence or is contrary to evidence
on record, or the inferences drawn therefrom are not in accordance with law.

12. The first celebrated judgment was given by Lord Denning in 1959 in the case
of Baldwin and Francis Ltd. v. Parents Appeal Tribunal 1959 AC 663 wherein it
was held as under:--

"There are many cases in the books which show that if a Tribunal bases its
decision on extraneous considerations which it ought not to have taken into
account or fails to take into account a vital consideration which it ought to have
taken into account, thus, its decision may be quashed on certiorari and a
mandamus issued for it to hear the case afresh. The cases on mandamus are clear
enough; and if mandamus will go to a Tribunal for such a cause, then it must
follow that certiorari will go also; for when a mandamus is issued to the
Tribunal, it must hear and determine the case afresh, and it cannot well do this if
its previous order is still standing. The previous order must either be quashed on
certiorari or ignored; and it is better for it to be quashed."

13. In his book, the Discipline of Law, while giving a fascinating account of his
personal contributions to the changing face of English Law, Lord Denning
highlighted the concept of error of law and jurisdiction on page 74, in the
following words:--

"This brings me to the latest case. In it I ventured to suggest that whenever a


Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it and
Page No. 5 of 7
its decision is void, because Parliament only conferred jurisdiction on the
Tribunal on condition that it decided in accordance with the law."

14. In the case of Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24,
the Honourable Supreme Court elucidated this principle in the following
words:--

"The scope of interference in the High Court is, therefore, limited to the inquiry
whether the Tribunal has in doing the act or undertaking the proceedings acted
in accordance with law. If the answer be in the affirmative the High Court will
stay its hands and will not substitute its own findings for the findings recorded
by the Tribunal. Cases of no evidence, bad faith, misdirection or failure to follow
judicial procedure, etc. are treated as acts done without lawful authority and
vitiate the act done or proceedings undertaken by the Tribunal on this ground.
Where the High Court is of opinion that there is no evidence proper to be
considered by the inferior Tribunal in support of some point material to the
conviction or order, certiorari will be granted."

15. To the same effect is the case of Assistant Collector v. Al Razak Synthetic
(Pvt.) Ltd. 1998 SCMR 2514, wherein it was held that:--

"In our view, it was not proper on the part of the learned Judges of the Division
Bench of the High Court to have decided the above technical questions without
getting first the decision of the Central Board of Revenue on the basis of the
material which the parties might have produced before it in support of their
claims. The High Court generally does not investigate disputed questions of fact
in exercise of its constitutional jurisdiction. However, it can interfere with a
finding of fact if it is founded on no evidence or is contrary to the evidence on
record or the inferences drawn therefrom are not in accordance with law."

16. In the case of Muhaimnad Lehrasab Khan v. Mst. Ageel-un-Nisa and 5 others
2001 SCMR 338, the Honourable Supreme Court after taking stock of a series of
its judgments held as under:--

"There is no cavil with the proposition that ordinarily the High Court in its
constitutional jurisdiction would not undertake to reappraise the evidence in rent
hatters to disturb the finding of facts but it would certainly interfere if such
findings are found to be based on non-reading or misreading of evidence,
erroneous assumptions of jurisdiction, misapplication of law, excess or abuse of
jurisdiction and arbitrary exercise of powers. In appropriate cases of special
jurisdiction, where the District Court is the final Appellate Court, if it reverses
the finding of the trial Court on the grounds not supported by material on
record, the High Court can interfere with it by issuing writ of certiorari to correct
the wrong committed by the Appellate Authority. "

17. When viewed in this context, we are convinced that the finding of the learned
Additional District Judge being tarred by the error of law and jurisdiction cannot
be maintained.

18. For the reasons discussed above, this writ petition is allowed, the impugned
judgment and order are set-aside and the case is sent back to the learned
Additional District Judge-IV, Bannu for decision afresh in accordance with law
within a period of two months after examining the Psychiatrist as a C.W. The
parties are directed to appear before the said Court on 5-10-2004. A copy of this
judgment be also sent to the learned Additional District Judge wherever he is
posted at the moment.

H.B.T./553/P Case remanded.

Page No. 6 of 7
PLD 1996 KARACHI 174

Before Abdul Hafeez Memon, C.J. and Nazim Hussain Siddiqui, J

DILAWAR SHAH. Petitioner

versus

EXECUTING COURT OF VII SENIOR CIVIL AND FAMILY JUDGE, KARACHI


EAST and 2 others --- Respondents

Civil Petition No. 1372 of 1995, decided on 13th November, 1995.

(a) Guardians and Wards Act (VIII of 1890)---

---- Ss. 25,- 10, 11, 36, 43, 46 & 48 --- Civil Procedure Code (V of 1908), Preamble
--- Applicability of provisions of Civil Procedure Code, 1908, to proceedings
under Guardians and Wards Act, 1890 --- Extent --- While dealing with question
of custody of minors, procedure prescribed in Guardians and Wards Act, is to be
followed --- Sections 10, 11, 36, 43 & 48, Guardians and Wards Act, 1890,
however, provide that procedure prescribed in C.P.C. would be followed in
respect of these sections.

Major Matloob Ali Khan v. Additional District Judge, East Karachi. 1988 SCMR
747 ref.

Malik Khizar Hayat Tiwana v. Mst. Zainab Begum and others PLD 1967 SC 402
rel.

(b) Civil Procedure Code (V of 1908)-

---- Ss. 12(2) & 47 --- Execution proceeding --- Application under S.12(2), C.P.C,
before Executing Court --- Maintainability --- Scope of applicability of S.12(2),
C.P.C. with reference to execution proceedings would be confined to the extent
of the order passed in execution proceedings.

(c) Guardians and Wards Act (VIII of 1890)-

---- S. 25 --- Constitution of Pakistan (1973), Art.199 --- Constitutional petition--


Custody of minors---Right of custody of minors, ex facie, was that of mother
where parties were governed by Sunni Muslim Law --- Such right would
continue with the mother unless it was shown that welfare of minors demanded
that their custody be given to somebody else --- Question of welfare of minors
could be effectively decided only after evidence was recorded--(Muhammadan
Law).

Mst. Khundi Devi v. Chotey Lal AIR 1922 All. 338 rel.

M.M. Kazi for petitioner.

Date of hearing: 26th October, 1995.

ORDER

NAZIM HUSSAIN SIDDIQUI, J.---Petitioner Dilawar Shah has challenged the


Orders dated 8-5-1995 and 31-5-1995 passed by the respondents Nos, I and 2
respectively, The facts relevant for decision of &S petition are as follows:

Deceased Naseeb Rawan, who was the son of the Petitioner, husband of
respondent No.3 Mst. Sardar Begum, and father of the minors whose ages are
Page No. 1 of 4
shown against their names i.e. Jamila 14 years, Noor Bibi 11 years, Ajeera Bibi 10
years, Mariam 9 years, Kausar Naz 7 years and Wajjad 5 years, had died in an
accident on 23-2-1992. He married the respondent No.3 in the year 1980 and from
said wedlock above named minors were born to the respondent No.3. It is
alleged that, during the life time of deceased the respondent No.3 had developed
clandestine relations with the one Rizwanullah, and soon after the death of her
husband married him (Rizwanullah). The Petitioner had filed the Application
No.4 16 of 1993 for seeking custody of the minors before the respondent No.1,
against the respondent No.3. It is alleged that the respondent No.3, in spite of
valid service remained absent, as such, the Application was allowed by learned
Senior Civil Judge/Family Judge, as per Order, dated 17th March, 1994. The
Petitioner, thereafter, filed Execution Application No.1 of 1994 before respondent
No.1 and in pursuance; thereof the custody of three minors namely, Ajeera Bibi,
Mariam, and Master Wajjad was handed over to the petitioner. The execution
application, however, still remained pending r securing custody of the remaining
three minors, namely Jameela, Noor Bibi, and Kaurar Naz. Thereafter the
respondent No.3, in execution proceeding, filed an application under section
12(2), C.P.C. for setting aside the ex parte order, which according to the
respondent No.3 was obtained by fraud and misrepresentation.

The respondent No.1, by order dated 8-5-1995, set aside the ex parte order
mentioned earlier and restored the custody of three minors namely, Ajeera Bibi,
Mariam, and Master Wajjad, to the respondent No.3, till final disposal of the
matter. The petitioner, challenged this order before respondent' No.2 a "his
appeal having No.24/1995 was dismissed by respondent and No.2, vide order
dated 31-5-1995. Both these orders have now been impugned in this petition.

The case of the respondent No.3 is that her husband was an employee of
Pakistan Steel Corporation and had died in an accident on the date mentioned
earlier. She claimed that, after completing Iddat, she married said Rizwanullah,
who is also an employee of said corporation, as she had no sources to maintain
her said six children. According to her, after the death of her husband, her father-
in-law Dilawar Shah and his son Bakhte Rawan had taken away all valuable
movable properties belonging to her husband, including a Refrigerator etc. She
maintained in the year 1992 the services of her husband Rizwanullah were
terminated, as such, he took her and children to his native village in Charsadha.
Her husband, however, was reinstated in December, 1994 and thereafter they
again started residing in their house at Karachi since January, 1995. She
categorically stated that from 1992 to December, 1994 he was in District
Charsadha. She stated that, on 29-3-1995 at 2-00 a.m. in he night, the Police
forcibly entered in her house and took away minors Ajera Bibi, Mariam Bibi and
Master Wajjad.

Mr. M.M. Kazi learned counsel for the petitioner has assailed the impugned
orders purely on technical grounds. He argued that respondent NA, as an
Executing Court, was not legally competent to entertain the application under
Order 12(2), C.P.C. as Rule 13 of West Pakistan Family Court Rules, 1965,
provided that on sufficient cause being shown the ex parte order, or decree could
be set aside by the Court on application made to it within 30 days of passing of
the decree of decision. We may pause here to say that Hon'ble Supreme Court in
the case of Major Matloob Ali Khan v. Additional District Judge, East Karachi,
1988 SCMR 747 held that said Rule 13, prescribing limitation period of 30 -days,
was ultra vires the power of rule making authority as statutes provided no time
limitation for making application for setting aside an ex parte decree passed by ~
Family Court. Learned counsel also argued that the Executing Court could not go
beyond the decree and in any case it was beyond its jurisdiction to set aside the
ex order in question.

In order to appreciate the contentions raised on behalf of the Petitioner, we feel it


is necessary to refer certain provisions of Pakistan Family Court Act, 1964 and
Page No. 2 of 4
that of Guardians and Wards Act, 1890. According to section 5 of the Family
Court Act, the Family Court shall have exclusive jurisdiction to entertain, and
adjudicate upon the matters specified in the Schedule. Item No.5 of the Schedule
speaks about "Custody of Children". Section 17 of the Family court Act provides
that provisions of the Evidence Act and Code of Nil Procedure, except 10 and 11,
shall not apply to proceedings before the family Court. Section 25 of the said Act
provides that Family Court shall be deemed in be a District Court for the
purpose of Guardians and Wards and notwithstanding anything contained in
this Act, shall, in dealing with the matter specified in that Act, follow the
procedure prescribed in that Act Thus, while dealing the question of custody of
the minors the procedure prescribed in Guidance and Wards Act is to be
followed and not the procedure contained in Family Court Act. Sections 10, 11,
36, 43, 4 an 48 of the Guardians and Wards Act lay down that the procedure
prescribed in the Code of Civil Procedure- shall be followed in respect of these
sections.

In the case of Malik Khizar Hayat Tiwana v. Mst. Zainab Begum and others PLD
1967 SC 402. The Hon'ble Supreme Court . examined the point of applicability of
Civil Procedure Code in the proceedings, initiated under the Guardians and
Wards Act. The contention was raised that the provisions of Civil Procedure
Code apply ipse vigora to proceedings thereunder by reason of the provisions of
section 141 of the Code of Civil Procedure, for the Guardians and Wards Act
itself does not prescribe any special procedure but does specify that a Court
under the Guardians and Wards Act means the District Court, having
jurisdiction to entertain an application under that Act and a District Court has
been specifically defined therein as having the same meaning as a District Court
under the Code of Civil Procedure. Against above contention, the argument of
the other side was that where the Legislature intended that the procedure
prescribed by the Code of Civil Procedure should be followed it has expressly
mentioned so, but with regard to other matters the statute itself has prescribed its
own procedure. Having taken into consideration above arguments the Hon'ble
Supreme Court observed as follows:

"This argument is not without force. Even if the procedure of the Code can be
said to be attracted to proceedings under the Act where no specific provision has
been made in the Act itself that must be under the terms of section 141 of the
Code itself only 'as far as it can be made ,applicable'. This clearly indicates that
there can be no blind or rigid adherence if the nature of the cause or matter itself
gives a contrary indication. Apart from the scheme of the Act itself to which the
learned counsel for the respondent has with reason adverted we are also of the
view that in a proceeding under the Act the Court should not lose sight of the
fact that the overriding consideration is always the welfare of the minor. The
Court in such cases is really exercising a parental jurisdiction as if it were in loco
parentia to the minor. This is not a jurisdiction, therefore, in which there can, by
its very nature, be any scope for any undue adherence to the technicalities.

The dictum laid down by the Hon'ble Supreme Court in, respect of the matters,
concerning "CUSTODY OF CHILDREN" is that since the Court in such matters
exercises parentia jurisdiction, therefore, adherence to the technicalities of law is
not proper and justified.

Adverting to the contention of the learned counsel for the petitioner that
application moved under subsection (2) of section 12, C.P.C. could not be
entertained by the Executing Court and it could only be moved to the Court
which was passed final judgment, decree or order, it is noted that subject to the
provisions of section 47, C.P.C. the provisions of subsection (2) will apply to
determination made in the course of execution proceedings whether they be
decree or order. The scope of applicability of subsection (2) of section 12 of
C.P.C. with reference to the execution proceedings will be confined to the extent
the order passed in execution proceedings. The tenor of the impugned order
Page No. 3 of 4
dated 8-5-1995 shows that it was passed as Guardian Judge. Once the ex parte
order was set aside all subsequent. orders based upon it, stood vacated,
modified, altered in terms of the order, where by the ex parte proceedings were
set aside. During the course of arguments, learned counsel for the petitioner
conceded that the Court which passed the impugned order dated 8-5-1995 and,
the Court which was executing it was headed by the same Presiding Officer. It
being so, and., the paramount consideration being the welfare of the minors, the
only question before the respondent No. 1 was that whether sufficient cause was
shown for setting aside the ex parte order.

It is clear from the affidavit of respondent No.3 that from 1992 to December, 1994
she was not at Karachi, but in the Application No.416/1993 her address was
shown as resident of Karachi. The respondent No.3, in her affidavit, has alleged
that the Petitioner was seeking custody of minor girls not for their welfare, but
for selling them in the Tribal Areas of Pakistan. Above two grounds, in our view
were sufficient for setting aside the ex parte order. Besides, it is an admitted fact
that the parties are governed by Sunni Muslim Law. The right of custody
(Hazanat) ex. facie is that of 'the mother. This right would continue with the
mother unless it - is shown that welfare of the minors demands that her custody
instead of mother be given to some body else. The question of welfare of the
minors can be effectively decided only after the evidence is recorded. In the case
of Mst. Khundi Devi v. Chotey Lal AIR 1922 Allahabad 338 a D.B. of that Court
observed as follows:

"The District Judge who exercises a parental jurisdiction in proceedings under


the Guardians and Wards Act, cannot be expected to observe the formality, and
precision of procedure laid down by the Civil Procedure Code to be followed by
Court in the trial of ordinary suits. If the order passed by the District Judge is on
the whole reasonable, the High Court will refrain from interfering because he has
not acted with proper regard to any statute or loss of evidence of the procedure
under Civil P.C."

Accordingly, we hold that the conclusion drawn in the impugned orders is


correct and there is no merit in this Petition.

On 26-10-1995, after hearing the arguments of learned counsel for the petitioners,
We had dismissed this petition in limine and these are the reasons for the same.

A.A./D-140/K Petition dismissed

Page No. 4 of 4
P L D 1986 Supreme Court 14

Present : Muhammad Haleem, C. J., Muhammad Afzal Zullah and Nasim Hasan
Shah, JJ

IH SAN-UR-REHMAN-Appellant

Versus

Mst. NAJMA PARVEEN-Respondent

Civil Appeal No. 744 of 1984, decided on 6th March, 1985.

(On appeal from the judgment of the Lahore High Court, dated 10-10-1983 in
Civil Revision No. 619 of 1983).

(a) Constitution of Pakistan (1973)-----

-------Art. 185 (3)-Guardians and Wards Act (VIII of 1890), Ss. 4, 4-A, 47 & 48-
Civil Procedure Code (V of 1908), Ss. 2, 4, 115 & 141West Pakistan Family Courts
Act (XXXV of 1964), Ss. 2, 3, 4, 5, 14, 17 & 25-Custody of minor-Revision in
guardianship matters before High Court-Leave to appeal granted inter alia to
examine contention that judgment of High Court, on which High Court, relied
for holding that revision was competent viz Parveen v. Muhammad Azhar P L D
1975 Lab. 334 had been disapproved in Supreme Court Judgment Sakhawat Ali
and another v. Mst. Shui Khelay P L D 1981 S C 454.

Mrs. Parveen v. Kh. Muhammad Asghar P L D 1975 Lab. 334 and Manzoor
Hussain's case P L D 1977 Lah. 911 not approved.

Sakhawat Ali and another v. Mst. Shui Khelay P L D 1981 S C 454 mentioned.

Mst. Zaibun Nisa v. Muhammad Mozammil P L D 1972 Kar. 410; Muhammad


Ismail v. Mst. Zubeida Khatoon P L D 1973 Kar. 503 and Mst. Farida Parveen P L
D 1971 Kar. 118 approved.

Ghulam Hussain v. Mst. Farzana (minor) 1981 S C M R 953 ref.

Muhammad Deen Malik 1982 S C M R 1223 disting.

(b) Guardians and Wards Act (VIII of 1890)-----

----S. 47, proviso [as amended by Guardians and Wards (Amendment) Ordinance
(XI of 1980), S. 2]-Historical perspective of amendment in S. 47-Amendment
made by legislature in . S. 47, held, was under some misapprehension.

(e) Precedent---

--Two different views expressed by separate High Courts-Such views although


have pursuasive value for each other but were not as such binding on each other.

(d) Interpretation of statute----

--Presumption-Redundancy-Although presumption is that redundancy is not to


be imputed to an enactment nor ignorance of law is to be imputed to law-making
Agencies, but such presumption can differ from case to case-Superior Courts, in
proper situations can make corrections where legislature is demonstrably shown
to have made a visible error.

(e) Interpretation of statute—--


Page No. 1 of 15
------Amendment in law-Amendment in statute made earlier to decision of
Supreme Court-.Such amendment, held, would not be deemed to have diluted,
in any way, effect of law declared by Supreme Court-[Precedent].

Sakhawat Ali and another v. Mst. Shui Khelay P L D 1981 S C 454 mentioned.

(f) Constitution of Pakistan (1973)----

--Art. 189-Guardians and Wards Act (VIII of 1890), S. 47 [as amended by


Guardians and Wards (Amendment) Ordinance (XI of 1980), S. 2]-Amendment
made in Act earlier to decision of Supreme Court -Declaration of law by Supreme
Court, in pursuance of mandate of Constitution, held, would override
amendment made in Act and nullify its effect by virtue of Art. 189 of
Constitution of Pakistan (1973), Art. 189.

(g) West Pakistan Family Courts Act (XXXV of 1964)------

-----Ss. 25, 17 & 14-Guardians and Wards Act (VIII of 1890), Ss. 47, proviso and 48
--Civil Procedure Code (V of 1908), Ss. 141, 115 & 2-Guardianship - Application
of S. 25, West Pakistan Family Courts Act, 1964-Family Court -"Procedure" to be
adopted in trial -Revisional and appellate jurisdiction of High Court-Extent
Section 25 of Family Courts Act, 1964 excludes application of Guardians and
Wards Act, 1890 at stage when original trial ends (except when original trial
Court implements its own orders or regulates conduct or proceedings of
guardian or similar other matters)-Words "matter" in S 25, West Pakistan Family
Courts Ac , 1964-Significance-Section 25, West Pakistan Family Courts Act, 1964
cannot be interpreted so as to extend it to appeals or revisions but S. 25 applies to
a Family Court which was firstly to be deemed to be a District Court and then
shall follow "procedure" when conducting a trial, as prescribed in Guardians and
Wards Act, 1890 and not in West Pakistan Family Courts Act, 19645. 25, West
Pakistan Family Courts Act, 1964 does not apply to higher forums particularly
High Court when dealing with an appeal or revision -Revisional forum under S.
41, Guardians and Wards Act, 1890 was thus excluded from ambit of S. 25, West
Pakistan Family Courts Act, 1964-High Court, therefore, has no revisional
jurisdiction whether in cases dealt under West Pakistan Family Courts Act, 1964
or those dealt under Guardians and Wards Act, 1890 by virtue of S. 25, West
Pakistan Family Courts Act, 1964 Appeals provided under S. 14, West Pakistan
Family Courts Act, 1964 continues and will continue to cover field of remedy, of
course, apart from constitutional jurisdiction.

Section 25, West Pakistan Family Courts Act, 1964 permitted the Family Court
when deemed to be District Court under the Guardians and Wards Act to adopt
the "procedure" prescribed in the Guardians and Wards Act as a mode of trial
during the trial and thereafter in so far as the said Act is concerned, the Family
Court becomes functus officio. It does not need any further repetition or support
of reason. Section 25 is very clear on this question. It clearly excludes the
application of the Guardians and Wards Act to the stage when the original trial
ends except when the original trial Court, according to the various provisions of
the Guardians and Wards Act, implements its own orders or regulates the
conduct or proceedings of the guardian and similar other matters. The use of the
word "matter" in section 25 of the Family Courts Act is in this context (in
addition to the trial) and not in the context of appeals and revisions. This also
explains the omission of the expression, "mode of trial" or for that matter "trial"
from section 25 of the Family Courts Act: For another reason also section 25 of
the Family Courts Act cannot be interpreted so as to extend it, to appeals or
revisions because it obviously applied to a Family Court which according to this
provision shall firstly be deemed to be a District Court and then shall follow the
procedure when conducting a trial, as prescribed in the Guardians and Wards
Act and not in the Family Courts Act. The section obviously does not apply to
Page No. 2 of 15
the higher forums particularly the High Court when dealing with an appeal or
revision because it is only for a Family Court that a deviation has been made to a
limited procedural extent from what is provided in the Family Courts Act and
nothing is said in section 25 about any other Court including the High Court. A
revisional forum under section 47 is thus excluded from the ambit of section 25.
Yet another argument namely, that section 141, C.P.C. would operate
independently so as to make scope for the High Courts exercising revisional
powers in cases decided by a Family Court even under the Family Courts Act
notwithstanding section 17 of that Act which generally bars its application, has
no force. Whether in the present context a revisional forum will be one relatable
to procedure or not is not very important because for anther very strong reason
the argument has no force. Section 141, C. P. C. is attracted only when all its
conditions are satisfied and no provision is made to the contrary in the
legislation which otherwise covers the case. Family Court will have to be treated
as out of the scope of the C. P. C. not only because of section 17 which excludes
the application of C. P. C. but also because the entire provisions of the Family
Courts Act make a departure from the major stages of procedure prescribed in
the Civil Procedure Code. The intention was to provide speedy disposal of
matters mentioned in the Schedule to the Family Courts Act. Therefore, the
application of C.P.C. was excluded except in so far as it has been specifically
made applicable. That intention being clear, revisional power cannot be assumed
by the High Court on the basis of the general provision namely, section 141 of the
C.P.C.

To attract revisional jurisdiction of the High Court by virtue of section 115 read
with section 141, C. P. C., it would be essential that the conditions laid down in
section 115 of the C. P. C. are also satisfied. As soon as this exercise is
commenced to see whether the various conditions (like those of "case decided"
"subordinate Court" etc. prescribed in section 115) are satisfied or not, reference
and reliance would have to be made to C.P.C. For example, for discovering the
definition of "subordinate Court", section 2, C.P.C. will have to be referred to. But
section 17 of the Family Courts Act clearly bars any reference to the C. P. C.
when dealing with the proceedings before or the legal position of a Family Court.

Held: The High Court has no revisional jurisdiction whether in cases dealt under
the Family Courts Act or those dealt under the Guardians and Wards Act by
virtue of section 25 of the Family Courts Act. Section 14 providing for the appeals
continues and will continue to cover the field of remedy, of course, apart from
the Constitutional remedy.

Sakhawat Ali and another v. Mst. Shui Khelay P L D 1981 S C 454 affirmed.

Mrs. Parveen v. Kh. Mrrhammad Ashar P L D 197§ Lab. 334 and Manzoor
Hussain P L D 1977 Lah. 911 not affirmed.

Mst. Zaibun Nisa v. Muhammad Muzammil P L D 1972 Kar. 410 Muhammad


Ismail v. Mst. Zubeida Khatoon P 1, D 1973 Kar. 503 and the case of Mst. Farida
Parween P L D 1971 Kar. 118 approved.

Muhammad Deen Malik 1982 S C M R 1223 disting.

Mrs. Parveen v. Kh. Muhammad Ashar P L D 1975 Lab. 334 ; Sakhawat Ali and
another v. Mst. Shui Khelay P L D 1981 S C 454 ; Ghulam Hussain v. Mst.
Farzana (minor) 1981 S C M R 953; Abdul Ghafoor Gill v. Mst. Nussarat Khan P
L D 1984 Lab. 332; Fazal Muhammad v. Ali Ahmad Awan 1982 C L C Lab. 2354 ;
Mst. Mussarat Jehan v. Mustafa Ali Beg 1982 C L C Kar. 205 ; Syed Shamim
Ahmad v. Mst. Riaz Fatima P L D 1975 Kar. 448 ; Muhammad Ismail v. Mst. 7.
ubeida Khatoon P L D 1973 Kar. 503 ; Mst. Zaibun Nisa v. Muhummad
Muzammil P L D 1972 Kar. 410 ; Mst. Farida Parwin v. Qadeeruddin Ahmad
Siddiqi P L D 1971 Kar. 118; Mst. Tehseen Akhtar v. Mahmoodul-Hassan P L D
Page No. 3 of 15
1971 Lab. 875 : Wajahat All Hasnie v. Mst. Ghazala P L D 1970 Lab. 641 ; Mst.
Maqsoodan Bibi v. Mst. Bhano P L D 1.965 Lab. 183 ; Muhammad Deen Malik v.
14dditional District Judge 1982 S C M R 1223 ; Adnan Afzal v. Capt. Sher Afzal P
L D 1969 S C 187; Alif Din v. Mst. Parveen Akhtar P L D 1970 S C 75 ; Khizar
Hayar Khan Tiwana v. Mst. Zainab Begum P L D 1967 S C 402 ; Manzoor
Hussain v. District Judge P L D 1977 Lab. 911; Muhammad Daud v. Abbas Ali P
L D 1969 Lab. 699 ; Muhammad Is.mail v. Fazal Ahmad P L D 1969 Lab. 834;
Juma Khan v. Mst. Gul Ferosha P L D 1972 Pesh. 1 ref.

(h) West Pakistan Family Courts Act (XXXV of 1964)-------

--Ss. 17 & 25-Guardians and Wards Act (VIII of 1890), S. 25Civil Procedure Code
(V of 1908), S. 141 & O. IX, r. 9-Guardiansbip/custody of minor/wards-Powers
of Family/Guardian Courts Family Court while acting as a Guardian Judge
exercises parental jurisdiction and technicalities should not be allowed to
frustrate substantial justice-Second application wherever permissible and is in
accordance with conditions for filing such an application before Family Court (if
there is substantial change of circumstances and situation) is not barred-Family
Court when acting as -Guardian Judge is empowered also (when it is necessary)
to regulate conduct or proceedings of any guardian appointed or declared by it-
Same principles would be applicable to regulation of custody of minors/ wards-
Relief regarding visits or question of meetings between minors and parent can
also be regulated through application to Family Court.

Khizar Hayat Khan Tiwana v. Mst. Zainab Begum P L D 1967 S C 402 affirmed.

A. W. Butt, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record


(absent) for Appellant.

Mushtaq Ahmad, Advocate Supreme Court and S. Wajid Hussain Advocate-on-


Record (absent) for Respondent.

Date of hearing: 6th March, 1985

JUDGMENT

MUHAMMAD AFZAL ZULLAH, J.-------This appeal through leave of the Court


is directed against judgment, dated 10-10-1983 of the Lahore High Court
whereby in a guardianship/custody matter judgment,, of a Family Court earlier
upheld by the Appellate District Court was modified on a civil revision filed by
the respondent.

The appellant's (father's) application for custody of the minor children of the
parties herein wa3 allowed by a learned Civil Judge functioning as Guardian
(Family) Judge on various findings of fact with regard to welfare of Vie minors
rendered against the respondent (mother). Her appeal before the District Court
which was heard by a learned Additional District Judge was dismissed on
affirmation of the said findings of fact. The respondent then tiled an application
for revision under section 48 of the Guardians and Wards Act (No. VIII) of 1890
read with section 115 of the Civil Procedure Code before the High Court.
Notwithstanding the preliminary objection with regard to its competency the
same was partly allowed on 10-10-1983 by a learned Single Judge. The
preliminary objection was overruled by making reference to another Single
Bench judgment of the same High Court in Mrs. Purveen v. Kh. Muhammad
Ashar (P L D 1975 Lah. 334). Although the findings of fact rendered against the
respondent were considerably modified, the learned Judge declined to handover
the custody to her on the main ground that the minors had expressed the desire
to live with the appellant. She was, however, permitted temporary custody of the
children during the vacation period when they would be free from the studies. It
is against this last mentioned order/direction that the appellant sought leave to
Page No. 4 of 15
appeal. It was granted to examine, inter alia, the contention "that the judgment of
the High Court, on which the learned Judge relied for holding that the revision
was competent viz. Parveen v. Muhammad Ashar (P L D 1975 Lah. 334) had
been disapproved by this Court in Sakhawat All and another v. Mst. Shui Khelay
(P L D 1981 S C 454).

Learned counsel for the appellant has relied on the afore-noted judgment of this
Court in Sakhawat Ali's case and has also cited some more cases to support the
contention that no appeal or revision in guardianship matters, was competent
before the High Court under the Guardians and Wards Act, 1890, after the
enactment of the West Pakistan Family Courts Act (No. XXXV) of 1964. The cases
cited are:

Ghulam Hussain v. Mst. Farzana (minor) 1981 S C M R 953 ; Sakhari-at Ali v.


Mst. Shui Khelay P L D 1981 S C 454 ; Abdul Ghafoor Gill v. Mst. Mussarat Khan
P L D 1984 Lah. 332; Fazal Muhammad v. Ali Ahmad Awan 1982 C L C Lah. 2354
; Mst. Mussarat Jehan v. Mustafa Ali Beg 1982 C L C (Kar.) 205 ; eyed Shamim
Ahmad v. Mst. Riaz Fatima P L D 1975 Kar. 448 ; Muhammad Ismail v. Mst.
Zubeida Khatoon P L D 1973 Kar. 503 ; Mst. Zaibwr Nis, v. Muhammad
Muzammil P L D 1972 Kar. 410 ; Mst. Farida Parwin v. Qadeeruddin Ahmad
Siddiyi P L D 1971 Kar. 118 ; Mst. Tahseen Akhtar v. Mahmood-ul-Hassan P L D
1971 Lah. 875 ; Wajahat Ali Hasnie v. Mst Ghazala P L D 1970 Lah. 641 and Mst.
Maqsoodan Bibi v. Mst. Bhano P L D 1965 Lah. 183.

In reply learned counsel for the respondent has relied on

Muhammad Deen Malik v. Addl. District Judge 1982 S C M R 1223 ; Adnan Afzal
v. Capt. Sher Afzal P L D 1969 S C 187; Alif Din v. Mst. Parveen Akhtar P L D
1970 S C 75 ; Khizar Hayat Khan Tiwana v. Mst. Zainab Begum P L D 1967 S C
402 ; Manzoor Hussain v. District Judge P L D 1977 Lah. 911 ; Mrs. Parveen v.
Kh. Muhammad Ashar P L D 1975 Lah. 334 ; Muhammad Daud v. Abbas Ali P L
D 1969 Lab. 699 ; Muhammad Ismail v. Fazal Ahmad P L D 1969 Lah. 834 ; Alif
Din v. Shaukat Ali P L D 1969 Pesh. 62 and Juma Khan v. Mst. Gul Ferosha P L D
1972 Pesh. 1; as also on a leave granting order, dated 13th December, 1981
reported as Muhammad Deen Malik v. Additional District Judge, Karachi 1982 S
C M R 1223 wherein it was observed that on account of an amendment made in
section 47 of Guardians and Wards Act of 1890 it might be necessary for this
Court to re-consider the view taken in Sakhawat Ali's case. It may be mentioned
that according to the office report the appeal arising out of the said case was not
decided on merits as the same was withdrawn.

The relevant provisions of law for consideration in this appeal (of the West
Pakistan Family Courts Act (No. XXXV) of 1.964 ; the Guardians and Wards Act
(No. VIII) of 1890 ; and the Code of Civil Procedure are reproduced below

Family Courts Act

2. Definitions.-(1). . . . . . . . . .

(a). . . . . . . . . . . .

(b) "Family Court" means a Court constituted under this Act;

The powers of 1st Class Magistrate have been conferred on every Judge of the
Family Court so that he may act under section 488, Cr. P. C. and may make
orders for maintenance under that section.

(2) Words and expressions used in this Act but not defined, shall have the
meanings respectively assigned to them in the Code of Civil Procedure, 1908.

Page No. 5 of 15
3. Establishment of Family Courts.-Government shall establish one or more
Family Courts in each District or at such other places as it may deem necessary
and appoint a Judge for each of such Courts.

4. Qualification of Judges.-No person shall be appointed as a Judge of a Family


Court unless he is or has been a District Judge, an Additional District Judge, a
Civil Judge or a Qazi appointed under the Dastur-ul-Amal Diwani, Riasat Kalat.

5. Jurisdiction.-Subject to the provisions of the Muslim Family Laws Ordinance,


1961, and the Conciliation Courts Ordinance. 1961, the Family Courts shall have
exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in
the Schedule.

14. Appeal.---(1) Notwithstanding anything provided in any other law for the
time being in force, a decision given or a decree passed by a Family Court shall
be appeal-able-

(a) to the High Court, where the Family Court is presided over by a District
Judge, an Additional District Judge, or a person notified by Government to be of
the rank and status of a District Judge or an Additional District Judge, and

(b) to the District Court in other case.

(2) No appeal shall lie from a decree passed by a Family Court-

(a) for dissolution of marriage, except in the case of dissolution for reasons
specified in clause (d) of item (viii) of section 2 of the Dissolution of Marriages
Act, 1939.

(b) for dower not exceeding rupees one thousand ;

(c) for maintenance of rupees twenty-five or less per month.

17. Provisions of evidence and Code of Civil Procedure not to apply.----(1) Save
as otherwise expressly provided by or under this Act, the provisions of the
Evidence Act, 1872, and the Code of Civil Procedure, 1908 except sections 10 and
11 shall not apply to proceedings before any Family Court.

(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before
the Family Courts.

25. Family Court deemed to be a District Court for purposes of Guardians and
Wards Act, 1890.-------A Family Court shall be deemed to be a District Court for
the purposes of the Guardians and Wards Act, 1890, and notwithstanding
anything contained in this Act, shall in dealing with matters specified in that Act,
follow the procedure prescribed in that Act.

*Schedule-(See section 5)

(1) Dissolution of Marriage, (2) Dower. (3) Maintenance. (4) Restitution of


conjugal rights, (5) Custody of children. (6) Guardianship. (7) Jactitation of
marriage.

The Guardians and Wards Act, 1890.

4. Definitions.-(1) . . . . . . . . .

(2) . . . . . . . . . . .

(3) . . . . . . . . . . .
Page No. 6 of 15
(4) "District Court" has the meaning assigned to that expression in the Code of
Civil Procedure, and includes a High Court in the exercise of its ordinary original
civil jurisdiction;

(5) "the Court" means-

(a) the District Court having jurisdiction to entertain an application under this
Act for an order appointing or declaring a person to be a guardian ; or

(b) where a guardian has been appointed or declared in pursuance of any such
application

(i) the Court which, or the Court of the officer who appointed or declared the
guardian or is under this Act deemed to have appointed or declared the
guardian ; or

(ii) in any matter relating to the person of the Ward the District Court having
jurisdiction in the place where the ward for the time being ordinarily resides ; or

(c) in respect of any proceeding transferred under section 4-A, the Court of the
officer to whom such proceedings has been transferred.

4-A. Power to confer jurisdiction on subordinate judicial officers and to transfer


proceedings to such officers.-(I) The High Court may, by general or special order,
empower any officer exercising original civil jurisdiction subordinate to a District
Court, or authorise the Judge or any District Court, to empower any such officer
subordinate to him, to dispose of any proceedings under this Act transferred to
such officer under the provisions of this section.

(2) The Judge of a District Court may, by order in writing, transfer, at any stage
any proceeding under this Act pending in his Court for disposal to any officer
subordinate to him empowered under subsection (1).

(3) The Judge of a District Court may at any stage transfer to his own Court or to
any officer subordinate to him empowered under sub. section (1) any proceeding
under this Act pending in the Court of any other such officer.

(4) When any proceedings are transferred under this section in any case in which
a guardian has been appointed or declared, the Judge of the District may, by
order in writing, declare that the Court of the Judge or office, to whom they are
transferred shall, for all or any of the purposes of this Act, be deemed to be the
Court which appointed or declared the guardian.

47. Orders appealable.----An appeal shall lie to the High Court from an order
made by a Court,-

(a) under section 7, appointing or refusing to appoint or declare a guardian ; or

(b) under section 9, subsection (3), returning an application ; or

(c) under section 25, making or refusing to make an order for the return of an
award to the custody of his guardian ; or

(d) under section 26, refusing leave for the removal of a ward from the limits of
the jurisdiction of the Court, or imposing conditions with respect thereto ; or

(e) under section 28 or section 29, refusing permission to a guardian to do an act


referred to in the section ; or

Page No. 7 of 15
(f) under section 32, defining, restricting or extending the powers of a guardian ;
or

(g) under section 39; removing a guardian ; or

(h) under section 40, refusing to discharge a guardian ; or

(i) under section 43, regulating the conduct or proceedings of a guardian or


settling a matter in difference between joint guardians, or enforcing the order ; or

(j) under section 44 or section 45, imposing a penalty

*Provided that, where the order from which an appeal is preferred is passed by
an officer subordinate to a District Court, the appeal shah lie to the District
Court."

*Proviso added by Ordinance XI of 1980 on 26-3-1980.

48. Finality of other orders.------Save as provided by the last foregoing section


and by section 622 of the Code of Civil Procedure, an order, made under this Act
shall be final, and shall not be liable to be contested by suit or otherwise.

Civil Procedure Code:

2. Definitions.- (1) . . . . . . . . .

(2) . . . . . . . . . . .

(3) . . . . . . . . . . .

(4) "district" means the local limits of the jurisdiction of a principal civil Court of
original jurisdiction (hereinafter called a "District Court", and includes the local
limits of the ordinary original civil jurisdiction of a High Court

4. Savings.----(1) In the absence of any specific provision to the contrary, nothing


in this Code shall be deemed to limit or otherwise affect any special or local law
now in force or any special jurisdiction or power conferred, or any special form
of procedure prescribed, by or under any other law for the time being in force.

(2) . . . . . . . . . . . .

115. Revision.-(1) The High Court may call for the record of any case which has
been decided by any Court subordinate to such High Court and in which no
appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material
irregularity.

the High Court may make such order in the case as it thinks fit:

Provided that, where a person makes an application under this sub-section, he


shall, in support of such application, furnish copies of the pleadings, documents
and order of the subordinate Court and the High Court shall, except for reasons
to be recorded, dispose of such application without calling for the record of the
subordinate Court.

Page No. 8 of 15
(2) The District Court may exercise the powers conferred on the High Court by
subsection (1) in respect of any case decided by a Court subordinate to such
District Court in which no appeal lies and the amount or value of the subject-
matter whereof dons not exceed the limits of the appellate jurisdiction of the
District Court.

(3) If any application under subsection (1) in respect of a case within the
competence of the District Court has been made either to the High Court or the
District Court, no further such application shall be made to either of them.

(4) No proceedings in revision shall be entertained by the High Court against an


order made under subsection (2) by the District Court.

141. Miscellaneous proceedings.----The procedure provided in this Code in


regard to suits shall be followed, as far as it can be made applicable, in all
proceedings in any Court of civil jurisdiction."

The afore-quoted provisions have been commented upon in one or the other
context in the cited case law. However two main questions for consideration in
this appeal are:

One : Whether it is covered by the pronouncements made by the Supreme


Court in the case of Sakhawat Ali. And if so.

Two : Whether the said decision needs to be re-considered.

In Sakhawat Ali's case no doubt the question on merits directly involved was
whether an appeal from the judgment of a Guardian Judge under section 47
(unamended) of the Guardians and Wards Act, before the High Court was
competent. The answer rendered was in the negative. The reasoning which then
prevailed with the Court is based mainly upon the consideration of the two
highly relevant provisions of the Family Courts Act namely sections 14 and 25. It
can be divided into two parts : One, which would apply to the appeals as also
revisions under the Guardians and Wards Acc and thus would have to be treated
as the law declared relating to both the appeals and revisions. While another,
part of the reasoning relates only to the appeals. The context in which the general
reasons covering both the appeals and the revisions, were recorded was with
clear implication of the same being declared as law and applicable accordingly
and not as mere obiter. It will be of advantage to reproduce some of these
reasons from page 457 of the report.

(a) `The section (25) does not, in terms, repeal section 14 nor does it refer to the
litigants' right of appeal.'

(b) `The (contrary) contention assumes that section 25 amounts to an implied


repeal of section 14 in all guardianship matters. If that had been the intention of
the Legislature, it would have enacted accordingly, because repeals are not to be
lightly implied.'

(c) `Even on the footing that a statute has to be read as a whole, what does
section 25 enact. It only prescribes that the procedure of the Guardians and
Wards Act shall be followed by the Guardian Judge and not the procedure
contained in the said Act (Family Courts Act). Therefore, we would explain here
that the mode of trial prescribed in the said Act contains sweeping departures
from the mode of trials in the suits under the Civil Procedure Code ………….
And the mode of trial laid down in the said Act is expressly excluded by section
25.

(d) `As according to this section (25), the Guardian Judge has to "follow the
procedure prescribed" in the Guardians and Wards Act, it would be sufficient to
Page No. 9 of 15
observe that whilst this Act (the Guardians and Wards Act) does not contain
elaborate provisions for the conduct of a trial in guardianship cases, it contains
some provisions for regulating such trials, and the effect of the words quoted is
that these provisions have to be followed by Family Courts, whenever they hear
guardianship cases. But the procedure prescribed for hearing a case under the
Guardians and Wards Act has nothing to do with the question of the forum in
which an order under this Act can be challenged by the aggrieved party.

(e) `And, this section (25) neither states nor implies that it is intended to govern
the rights of parties after the Family Court has become functus officio by
deciding the case before it.'

After the afore-quoted elaborate reasons the judgment proceeds at pp. 458 to 460
of the report to deal mainly with the question of appeal ; but before that we find
a very weighty reason which is in seriatim reproduced below .-

(f) 'The obligation imposed by section 25 to follow the procedure prescribed in


the Guardians and Wards Act is an obligation imposed on the Court, and there is
nothing in the section to support the view that it was intended to regulate the
rights of the parties after the Family Courts had become functus officio.'

Not only the aforementioned reasons but also the fact that the Lahore High
Court's judgment in the case of Mrs. Parvern was not approved as declaring
correct law, would further show that the decision by this Court rendered in the
case of Sakhawat Ali was intended to cover both the appeals and revisions
arising out of guardianship matters ; because the said case of Mrs. Parveen arose
out of revision filed in the High Court and dealt with the question of its
competency which was held by the High Court to be competent. It is also
interesting to note that the Division Bench case of Manzoor Hussain decided two
years later (P L D 1977 Lah. 911) which had affirmed the view taken in the case of
Mrs. Parveen was also not approved by this Court as having laid down correct
law. On the contrary, two judgments of the erstwhile Sind and Baluchistan High
Court in the cases of Mst. Zaibun Nisa v. Muhammad Mozammil (PLD 1972 Kar.
401) and Muhammad Ismail v. Mst. Zubeida Khatoon (P L D 1973 Kar. 503) were
approved as having laid down the correct law. In one of those judgments (Mst.
Zaibun Nisa), it was clearly held that section 17 of the family Courts Act having
excluded the provisions of the Civil Procedure Code (except sections 10 and 11)
in so far as the Family Courts were concerned, the litigants could not invoke
section 115 of the Civil Procedure Code and thus a revision under the said
section was not maintainable. The case of Mst. Farida Parwin (P L D 1971 Kar.
118) decided by one of us (Muhammad Haleem, H.C.J. while as a Judge of the
Sind and Baluchistan Hign Court) with the finding that on account of the bar
contained in section 17 of the Family Courts Act, one of the main requirements of
section 115, C. P. C. that the matter brought under revision must be a "case
decided" by a subordinate Court was not satisfied, was also approved in the
Karachi Full Bench case of Mst. Zaibun Nisa. It may be mentioned here that
another judgment by one of us (Nasim Hasan Shah, J. while as a Judge of the
Lahore High Court) is to the same effect but on a different reasoning namely,
that the object of the Family Courts Act was to provide a speedy remedy to settle
family disputes and for that reason the combined reading of sections 14, 17 and
25 of the Family Courts Act had excluded the application of section 115, C. P. C.
therefore a revision in the High Court in the guardianship matters decided by a
Family Court was not competent. In yet another case Ghulam Hussain v. Mst.
Farzana (minor) (1981 S C M R 953 ) this Court refused to set aside the High
Court's view that a revision in a guardianship matter was not competent and
indirectly held the same view but the controversy was not examined in its
details.

The foregoing analysis of the law declared in the case of Sakhawat Ali, namely, it
is also applicable to the revisions and that being so the impugned judgment
Page No. 10 of 15
merited to be set aside would not end the controversy in this case, because, the
learned counsel relying on a leave granting order of this Court in Muhammad
Deen Malik (1982 S C M R 1223) argued that the point noted therein for
reconsideration of the view in Sakhawat All's ,case, be examined. The contention
noted therein was as follows:

"It is contended on behalf of the petitioner that this amendment in law (the
addition of the proviso after clause (j) of section 47 of the Guardians and Wards
Act, 1980) was nut brought to the notice of this Court at the time of decision of
Sakhawat All's case and, therefore, its effect has not been considered. The
argument is that according to well-established rule of interpretation of statutes
redundancy, is not to be imputed to any enactment. If, therefore, the view that
section 47 of the Guardians and Wards Act, has been made dormant, in view of
the combined effect of sections 5, 14 and 25 of the West Pakistan Family Courts
Act, as held in Sakhawat Ali's case and the right of appeal is regulated by section
14 of the said Act, the amending Ordinance of 1980 would be rendered totally
redundant. It is further argued that if effect is to be given to the amending
Ordinance, it will have to be held that the right of appeal would be regulated by
section-47 and the consequence will be that, no appeal would lie from an order
passed by a Family Court under section 12 of the Guardians and Wards Act. The
submission of the learned counsel raise a serious question of law, requiring the
reexamination of the view adopted by this Court in Sakhawat Ali's case."

The context in which leave to appeal was granted in the case of Muhammad
Deen Malik is slightly different: whether an appeal from an order of temporary
custody under section 12 of the Guardians and Wards Act would at all be
competent - if section 47 is applied it would not be ; but if the matter is dealt with
under section 14 of the Family Courts Act, it might be competent as an appeal
against a decision of a Family Court. The main question nevertheless was the
same as was considered in Sekhawat Ali's case whether section 47 of the
Guardians and Wards Act would be applicable to the guardianship matters dealt
with by a Family Court constituted under the Family Courts Act.

Section 47 in its purview enacted that all appeals from orders referred therein
passed under the Guardians and Wards Act by 'the court' (as defined in the
Guardians and Wards Act) would lie to the High Court (before the amendment).
The decision of 'the Court (defined in section 4(5)(a) of the Guardians and Wards
Act as the "District Court") even if it was presided over by a Civil Judge
subordinate to a District Court, by virtue of enabling provision contained in
section 4-A of the Guardians and Wards Act, was appealable under section 47
only to the. High Court. The amendment made in 1980 provided that when 'the
Court' was presided over by a Civil Judge subordinate to the District Court the
appeal shall then lie to the District Court and not to the High Court. The
argument advanced in the case of Muhammad Deen Malik was that if an appeal
under section 47 was not competent in a case decided by a Family Judge, then
there was no need for the legislature to have made the amendment at all. Prima
facie the argument is attractive, that is why leave to appeal was granted. But on
deeper scrutiny it seems that the amendment B was made by the legislature
under some misapprehension. It seems that the law declared by the Lahore High
Court in the case of Parveen and Manzoor Hussain (decided in 1,975 and 1977)
was treated to have concluded the controversy and the contrary view taken in
the earlier cases decided in 1971 ; 1972 and 1973 (Karachi), it was assumed to
have been superseded by the Lahore vases. If so, it was wrong assumption
because the two different views were expressed by separate High Courts and
although the view of one had persuasive value for the other, they were not as
such binding on each other. Be that as it may, the overruled view expressed in
the Lahore cases was, it has been noted earlier, made the basis for bringing, by
amendment the proviso in section 47 ; on the assumption, that the appeal (as
held in the Lahore cases) was competent under section 47 of the Guardians and

Page No. 11 of 15
Wards Act and not under section 14 of the Family Courts Act. This incorrect
assumption led to the enactment of the proviso.

Although the presumption is that redundancy is not to be imputed to, an


enactment nor ignorance of law is to be imputed to the law-making Agency ; but
this presumption can differ from case to case. And in proper situations the
superior Courts have even made corrections where the legislature is
demonstrably shown to have made a visible error. Here one visible error is that
the Karachi view was deemed to have been subordinated to the Lahore view
which on no jurisprudential basis can be upheld as correct. The two judgments
were not rendered by the same Court as it used to be the situation when the West
Pakistan High Court had different Benches at Karachi and Lahore. Secondly for a
more weighty reason the amendment would not be deemed to have diluted, in
any way, the effect of the law declared by this Court in Sakhawat Ali's case,
which was decided on 22nd ! of March, 1981 while the amendment was made on
26th of March, 1980. The declaration of law in the case of Sakhawat Ali by the
Supreme Court of Pakistan in pursuance of the mandate of the Constitution will
overrides the amendment made in section 47 and nullify its effect by virtue of
Article 189 of the Constitution.

For yet another reason the proviso added to section 47 would have no effect as
even on the argument advanced from the respondent side it would be rendered
inoperative in cases like the present one. It took note of the fact that section 4-A
was added to the Guardians and Wards Act by way of an amendment in the
original Act and provided that when the Court is presided over by an officer
(Civil Judge) subordinate to the District Court an appeal shall lie to the District
Court. The argument advanced from the respondent side and accepted by the
High Court on the basis of the judgment in Parveen's case, proceeds on the
assumption that a Family Judge when dealing with a guardianship matter is
deemed to be a District Court under tae Guardians and Wards Act. It loses its
original position as a Family Court and thus the appeal from such a Court would
lie to the High Court under section 47 of the Guardians and Wards Act and not
to the District Court under section 14 of the Family Courts Act ; because an
appeal under section 14 (1) (b) to the District Court would not be maintainable
against the decision of another District Court. This latter argument relating to
section 14 was noted and rejected in the case of Sakhawut Ali. However, the
argument advanced from the respondent side son the basis of the proviso added
to section 47 will be subjected to, similar criticism namely, that if a Family Court
which is presided over by a Civil Judge is for all purposes converted into a
District Court under section 25 of the Family Courts Act when hearing a
guardianship matter the under the newly added proviso to section 47 of the
Guardians and Wards Act the appeal from such so-called and deemed District
Court shall "lie to the District Court". The error and fallacy is obvious and it need
not be commented upon any further. For all these reasons no justification has
been made out for re-consideration of the case of Sakhawat Ali on the basis of the
newly added proviso to section 47.

Learned counsel for the respondent tried to raise other arguments for re-
consideration of the decision in Sakhawat Ali's case and has relied, amongst
others, on the cases, Adnan Afial v. Capt. Sher Afial (P L D 1969 S C 187) and
Alifdin v. Shaukat Ali (P L D 1969 Pesh. 62), to contend that the provision in law,
of a forum of trial, is to be deemed to be one of procedure. And that being so, the
argument that the word "procedure" used in section 25 of the Family Courts Act
would not cover appeals and revisions (accepted in the case of Sakhawat Ali),
should now be rejected because the provision for a forum of the appeal has also
likewise to be treated as one of procedure. This question has thoroughly been
dealt with in Sakhawat Ali's case. Although the two cited cases are not
mentioned in the judgment but that will not make any difference because it was
nowhere held in these two cases that the provision for forum of appeal is
necessarily a subject-matter of procedure. Rather there are observations
Page No. 12 of 15
indicating otherwise. Similarly, the argument that appeal is in principle a
continuation of the trial for the reasons given in Sakhawat Ali's case wherein this
contention was also examined does not require any further comment.

As to the argument that revision when compared to an appeal is not a matter of


right and should be distinguished as one of procedure and thus competent under
section 48 of Guardians and Wards Act and/or under section 141 of the Civil
Procedure Code, is also without any force. There is elaborate discussion to
Sakhawat Ali's case regarding interpretation of the relevant provisions of the
Family Courts Act. It was held and rightly so that section 25 permitted the
Family Court when deemed to be District Court under the Guardians and Wards
Act to adopt the "procedure prescribed in the Guardians and Wards Act as a
mode of trial during the trial and thereafter in so far as the said Act is concerned,
the Family Court becomes functus officio. It does not need any further repetition
or support of reason. Section 25 is very clear on this question. It clear excludes
the application of the Guardians and Wards Act to the stag when the original
trial ends except when the original trial Court, according to the various
provisions of the Guardians and Wards Act, implements its own orders or
regulates the conduct or proceedings of the guardian and similar other matters.
The use of the word "matter" in section 25 of the Family Courts Act is in this
context (in addition to the trial) and not in the context of appeals and revisions.
This also explain H the omission of the expression, "mode of trial" or for that
matter "trial" from section 25 of the Family Courts Act.

For another reason also section 25 of the Family Courts Act cannot b interpreted
so as to extend it to appeals or revisions because it obviously applies to a Family
Court which according to this provision shall firstly be deemed to be a District
Court and then shall follow the procedure when conducting a trial, as prescribed
in the Guardians and Wards Ac and not in the Family Courts Act. The section
obviously does not apply to the higher forums particularly the High Court when
dealing with a appeal or revision because it is only for a Family Court that a
deviation has been made to a limited procedural extent from what is provided in
the Family Courts Act and nothing is said in section 25 about any other Court
including the High Court. A revisional forum under section 47 is thus excluded
from the ambit of section 25.

Yet another argument advanced by the learned counsel for the dent, namely, that
section 141, C. P. C. would operate independently so to make scope for the High
Courts exercising revisional powers in cases decided by a Family Court even
under the Family Courts Act notwithstanding section 17 of that Act which
generally bars its application, has be force. Whether in the present context a
revisional forum will be one relatable to procedure or not is not very important
because for another very strong reason the argument has no force. Section 141, C.
P. C. is attracted only when all its conditions are satisfied and no provision in
made to the contrary in the legislation which otherwise covers the case, Here in
the present case Family Court will have to be treated as out of the scope of the C.
P. C. not only because of section 17 which excludes the application of C. P. C. but
also because the entire provisions of the Family Courts Act make a departure
from the major stages of procedure prescribed in the Civil Procedure Code. The
intention obviously as held in the case of Wajahat Ali Hasnie v. Mst. Ghazala (P
L D 1970 Lah. 641) was to provide speedy disposal of matters mentioned in the
Schedule to the Family Courts Act. Therefore the application of C. P. C. was
excluded except in so far as it has been specifically made applicable. That
intention being clear revisional power cannot be assumed by the High Court on
the basis of the general provision namely, section 141 of the C. P. C.

There is yet another weighty reason which prevailed in the case or Farida
Parwin. It cannot be ignored. To attract revisional jurisdiction, of the High Court
by virtue of section 115 read with section 141, C. P. C., it would be essential that
the conditions laid down in section 115 of the C.P.C. are also satisfied. As soon as
Page No. 13 of 15
this exercise is commenced to see whether the various conditions (like those of
"case decided" "subordinate Court" etc. prescribed in section 115) are satisfied or
not, reference and reliance would have to be made to C.P.C. For example, for
discovering the definition of "subordinate Court", section 2, C. P. C. will have to
be referred to. But section 17 of the Family Courts Act clearly bars any reference
to the C. P. C. when dealing with the proceedings before or the legal position of a
Family Court.

For all these reasons it has rightly been held in Sakhawat All's case that the High
Court has no revisional jurisdiction-whether in cases dealt under the Family
Courts Act or those dealt under the Guardians and Wards Ac, by virtue of
section 25 of the Family Courts Act. Section 14 providing for the appeals
continues and will continue to cover the field of remedy, of course, apart from
the Constitutional remedy.

In the light of the foregoing discussion this appeal is allowed and the impugned
judgment of the High Court is set aside as without jurisdiction because the
revision filed in the High Court was not competent. There shall be no order as to
costs.

Before parting with this judgment it needs to be observed that as held by this
Court in the case of Khizar Hayat Khan Tiwana v. Mst. Zainab Begum(P L D
1967 S C 402) the Family Court when acting as a Guardian Judge exercises
parental jurisdiction and the technicalities in so far as it is possible should not be
allowed to frustrate substantial justice. A second application wherever ft is
permissible and is in accordance with the conditions for filing such an
application before the Family Court (if there is substantial change of
circumstances and situation) is not barred under the relevant law. Ana the
Family Court when acting as a Guardian Judge is empowered also (when it is
necessary) to regulate the conduct or proceedings of any Guardian appointed or
declared by it. This principle will apply to the regulation of the custody of the
minors/wards in cases like the present one. The relief sought by the respondent
regarding visits to the respondent or question of meetings between the minors
and the parent can be regulated through an application to the Family Court.

M. B. A. Appeal allowed.

Page No. 14 of 15
1983 C L C 183

[Lahore]

Before Irshad Hasan Khan, J

NIAZ AHMAD-Petitioner

versus

Mst. NASIM AKHTAR AND 2 OTHERS-Respondent

Writ Petition No. 4337 of 1982, decided on 3rd November, 1982.

(a) Guardians and Wards Act (VIII of 1890)

…S.9—Custody of minor—ordinary place of residence—jurisdiction –Minor


born at L at his mothers house and throughout before pronouncement of Talaq
remaining with mother—Guardian judge finding minor to be not an ordinary
resident of F and appellate Court concurring with such finding of fact—
Concurrent findings of fact, held, cannot be disturbed in write jurisdiction.

(b) Guardians and Wards Act (VIII of 1890)

…S.7 & 12 --- Custody of minor – Copy of alleged compromise deed


purporting for minor to reside permanently at F not placed on record—Question
whether any such arrangement made parties—Difficult to be decided in writ
proceeding--- Question a disputed question of fact, held, cannot be inquired into
in exercise of writ jurisdiction.—Constitution of Pakistan(1973), Art.199.—
[Question of fact Writ].

(c) Guardians and Wards Act (VIII of 1890)

---Ss 7 & 12 – Custody of minor – Ordinance residence—Even if any


agreement existing providing for minor to residence at F minor having
admittedly settled down at L under care and custody of his mother, F could not
be ordinary residence of minor-Courts at L, held, possessed territorial
jurisdiction to entertain application for custody of minor.[Jurisdiction].

Muhammad Siddique Siddiqui v. Mst. Aziz Bibi and 3 others P L D 1970 Lah.
596; Mst. Zubaida Begum v. Chaudhry Ghulam Rasul P L D 1959 (W. P.) Lah. 967
and E. C. Ratti and 2 others v, Arthur Dennis and another P L D 1975 Quetta 35
ref.

(d) Guardians and Wards Act (VIII of 1890)-

---Ss. 7 & 12-Custody of minor-Tentative observations-Ultimate question of


custody of minor having to be determined by Guardian Judge in light of
evidence led by parties and on basis of welfare of minor in accordance with law,
tentative observation made in impugned order, held, immaterial in such regard.

(e) Guardians and Wards Act (VIII of 1890)-

-- S. 48, Constitution of Pakistan (1973), Art. 199 and Civil Procedure Code (V of
1908), S. 115-Section 115 of Civil Procedure Code being applicable to orders
passed under Guardians and Wards Act, 1890 and such orders being open to
revision writ petition against such orders, held, barred.

M. Sarwar Awan for Petitioner

Page No. 1 of 4
ORDER

The petitioner, a former husband of Mst. Nasim Akhtar, respondent No. 1, has
directed this constitutional petition under Article 9 of the Provisional
Constitution Order, 1981, against the judgment of the Guardian Judge, Lahore,
dated 25-10-1932, and the judgment of the Additional District judge, Lahore
dated 31-10-1982, whereby, preliminary issue regarding territorial jurisdiction of
the Guardian -Judge, Lahore was decided against him.

2. The petitioner and respondent were married and had an issue, namely, Sohail
Zafar Ahmad. It is stated in the writ petition that respondent No. 1 filed an
application under section 7 of the Guardians and Wards Act (VIII of 1890)
(hereinafter called the Act), for the custody of her minor child. Application under
section 12 of the Act for temporary custody of the minor was also filed. The
petitioner contested the application and raised preliminary objection as to the
territorial jurisdiction of the Guardian Judge at Lahore. The learned Guardian
Judge, by order dated 21-9-1982, framed a preliminary issue, "Whether the Court
at Lahore has territorial jurisdiction to try the petition". Respondent No. 1 led
documentary evidence and also appeared as her own witness as P. W. 1.
Uncertified copy of the statement is at page 23 of the writ petition. The petitioner
also appeared as his own witness a3 D. W. 1 (page 25 of the writ petition). The
learned Guardian Judge, in view of the evidence before him, by order dated 25-
10-1982 (uncertified copy is at Annexure "A") decided this issue against the
petitioner and in favour of respondent No. I. The appeal of the petitioner was
also dismissed by the learned Additional District Judge, Lahore, by order dated
31-10-1982 (uncertified copy is at Annexure "B").

3. Learned counsel for the petitioner contends that the courts below have acted
illegally in the exercise of their jurisdiction to decide the preliminary issue as to
the territorial jurisdiction of the learned Guardian Judge, in that, in view of the
compromise arrived at between the parties before the punchayat, it was one of
the terms and conditions of the divorce which took place between the parties that
the custody of the minor shall be handed over by respondent No. 1 to the
petitioner. Accordingly, about four days prior to the presentation of the
application under section 7 of the Act, the husband, in consequence of the
alleged compromise, obtained the custody. This being so, it is contended that
since at the time of presentation of the application, the minor was deemed to be a
permanent resident of Faisalabad with the petitioner, and, therefore, the
application could only have been entertained at Faisalabad and the Guardian
Judge, at Lahore lacked territorial jurisdiction to entertain the same. The
cognizance of the application was ex facie violative of the provisions of section 9
of the Act.

4. It is next contended that the learned Guardian Judge has passed the impugned
order by misreading of evidence adduced by the parties and finally it is
submitted that, in any case, while deciding the preliminary issue, the courts
below have also expressed their opinion on merits of the case which has caused
grave prejudice to the petitioner in pursuing the matter before the Courts below.
Learned counsel for the petitioner has strongly relied on the dictum laid down in
Mst. Khair-un-Nisa v. Abdur Rahim (P L D 1973 Kar, 237) that where the minor
lawfully or otherwise resides at a particular place, prima facie, the courts of that
place would have jurisdiction to entertain an application under the Act. The
relevant observation at page 239, Portion `C' reads thus :-

"Admittedly, the marriage took place at Karachi and the parties resided together
at Karachi only. The minor whose custody is claimed also is just now, lawfully or
otherwise, at Karachi. Prima facie, therefore, it would seem to be that the Karachi
Court has jurisdiction and it is always for the plaintiff` to choose his forum
provided that the forum is one of jurisdiction."

Page No. 2 of 4
The precedent cited by the learned counsel for the petitioner is distinguishable
and not attracted to the facts of the present case, in that, it is proved from
evidence on record which I have perused with the assistance of the learned
counsel for the petitioner that the minor was born at Lahore at the house of
respondent No. 1 and throughout before the pronouncement of the Talaq, the
minor continued to remain with the mother. The petitioner, in his cross-
examination, has himself stated that :-

The learned counsel for the petitioner has frankly conceded before me that a
copy of the alleged compromise in pursuance of which the minor was to reside
permanently at Faisalabad, was not placed on the record of the low Court. The
petitioner has not cared to place the said compromise deed even on the record of
this Court. It is, therefore, difficult to hold in the exercise of my constitutional
jurisdiction, as to whether or not any such arrangement was made between the
parties. Furthermore, this being disputed question of fact, cannot be inquired
into in the exercise of writ jurisdiction.

5. The learned Guardian Judge has decided the preliminary issue in appreciation
of evidence on record and recorded a finding of fact that the minor was not the
ordinary resident of Faisalabad within the purview of section 9 of the Act. The
appellate Court concurred with this finding o fact. Viewed from this angle as
well, the concurrent finding of fact cannot be disturbed in these proceedings, in
that, a question as to whether a person is an ordinary resident of one place or
another is essentially a question of fact which cannot be gone into the exercise of
writ jurisdiction unless it is based on misreading of evidence, which learned
counsel for the petitioner has not been able to point out. The impugned orders of
the Courts below Court not, therefore, be treated arbitrary or capricious or based
on misreading of evidence was to call for interference in the discretionary
constitutional jurisdiction of this Court. The expression "ordinarily resides" has
been judicially interpreted in Muhammad Siddique Siddiqui v. Mst. Aziz Bibi
and 3 others (P L D 1970 Lah. 596) Mr. Justice Karam Elahee Chauhan (as he then
was), after exhaustively dealing with the entire case-law on the subject, observed
that the ordinary residence of the minor is only that residence where the minor
has settled down at that place for a reasonably long period. This being so, even it
is assumed for the sake of argument that there was any suc4 agreement that the
minor would reside at Karachi, the same was not an ordinary residence of
Faisalabad as he has been admittedly settled down at Lahore under the care and
custody of her mother. Reference may also be made to Mst. Zubaida Begum v.
Chaudhry Ghulam Rasul (P L D 1959 Lah. 967), where the same view was earlier
followed by the Division Bench of the West Pakistan High Court and it was inter
alia observed that the initial presumption that minors were ordinarily residing at
the place where the guardian resides is rebuttable, My learned brother Shabbir
Ahmad, J. (as he then was) observed at page 973 of the abovequoted authority of
the Division Bench :-

"Considering the entire material on the record, I have arrived at the conclusion
that the initial presumption that the minor was ordinarily residing at the place
where the guardian resides was rebutted in this case also because the child had
been living at Sialkot for over two years, while the father was admittedly living
at Lahore at the time of the presentation of the application and would appear to
have been living there eversince the 10th of December, 1954. It follows that the
Guardian Court at Lahore had no jurisdiction to hear the application under
section 25 of the Guardians and Wards Act. Consequently, I accept the petition
for revision and direct that the application under section 25 of the Guardians and
Wards Act shall be returned to the applicant for presentation to the proper
Court."

The same view was followed by the Division Bench in E. C. Ratti and 2 others v.
Arthur Dennis and another (P L D 1975 Quetta 35).

Page No. 3 of 4
6. Respectfully following the ratio laid down in the aforesaid precedents, I hold
that the Courts below have not committed any illegality or material irregularity
in holding that the Courts at Lahore had territorial is jurisdiction to entertain the
application.

7. The apprehension of the learned counsel for the petitioner that some
observations were made by the Courts below on the merits of the case which
tentamounts to pre-determine the whole issue is misconceived, It is well-settled
that such observations are always of tentative nature. The ultimate question of
the custody of the male child shall be determined by the learned Guardian Judge
in the light of the evidence led by the parties and on the basis of the welfare of
the minor and in accordance with law, notwithstanding. any tentative
observation made in the impugned order having any bearing on this aspect.

8. This writ petition is even otherwise incompetent in view of the provisions of


section 48 of the Act by virtue of which section 115, C. P. C. it applicable to
orders passed under the Act. Be that as it may, the impugned orders were passed
with lawful authority and are, therefore, not open to scrutiny either in the
exercise of revisional jurisdiction under section 115, C. P. C. or under Article 9 or
the Provisional Constitution Order, 1981.

For the reasons stated above, the petition fails and is hereby dismissed in limine.

S. A. H. Petition dismissed.

Page No. 4 of 4
1981 C L C 1275

[Karachi]

Before G. M. Shah and B. G. N. Kazi, JJ

Mst. ZAIBUNNISSA-Petitioner

versus

MUHAMMAD QASSAM AND 4 others---Respondents

Constitutional Petition No. 493 of 1978, decided on 23rd Derek 1980.

(a) Guardians and Wards Act (VIII of 1890)-------

------S. 17-Matters to be considered in appointing guardian------Minor boy ten


years old, subject to Mahommadan Law--Mother remarrying stranger-Mother's
appointment as guardian and her custody of minor, held, not consistent with
personal law of parties--Further held, however paramount consideration to he
given to welfare of minor with reference to matters indicated in subsection (2) of
S. 17.-[Custody of minor].

Muhammad Ramzan v. Mst. Fazal Nishan 1968 S C M R 1435 ; M.M Feroze


Begum v. Lt.-Col. Muhammad Hussain 1978 S C M R 299 ; Rahimullah
Choudhry v. Nelali Begum 1974 S C M R 305 ; Bashir Ahmed v. Yst. 1978 S C M
R 192 and Zohura Begum v. Maimuna Khatun P L D 1965 Dacca 290
distinguished.

Mst. Zebo and another'v. Mira/ Gul P L D 1952 Pesh. 77 ref.

(b) Guardians and Wards Act (VIII of 1890)---

---S. 39, cl. (h) & S.44-Guardian ceasing to reside within local limits of Court and
removal of ward from its jurisdiction-Minor boy’s father living in Japan and
wishing to carry him there--Mother divorced and remarrying stranger-
Concurrent findings of Family Court and Appellate Court as to minor's
remaining in custody of father being in welfare of minor-Father natural and legal
guardian under personal law-Section 39, held, applies to guardian appointed or
declared in Court or guardian appointed by will or other instrument and does
not apply to natural or de facto guardians-Provisions of S. 44, held further, do
not apply to father.-[Custody of minor].

(c) Guardians and Wards Act (VIII of 1890)----

-- S. 48-Finality of order made under Act-Petitioner's suit under S. 7 decided and


her appeal against decision also decided-Court's jurisdiction being exclusive
order in such circumstances final-Petition, held, misconceived.-[Custody of
minor].

Asghar Ali and 3 others v. Haji Khamico and .J others P L D 1976Kar. 659 and
Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C
139 ref.

Nizam Ahmed for Petitioner.

Ismail Munshl for Respondents.

Dates of hearing : 17th and 18th December, 1980.

Page No. 1 of 2
P L D 1978 Karachi 55

Before I. Mahmud and zaffar Hussain Mirza, JJ

SAADAT ALI KHAN-Appellant

versus

MUHAMMAD YAQOOB AND 10 OTHERS-Respondents

Letters Patent Appeal No. 133 of 1971, decided on 22nd September 1977.

(a) Guardians and Wards Act (VIII of 1891)-

-- Ss. 25 & 47-Family Court appointing Nazir of Court as interim Receiver and
ordering that person end property of minor should be given in custody of Court
of Wards-Held, appeal against such order under S. 47 not maintainable.-[Appeal
(civil)-Receiver).

Jaffar Ali and others v. Mst. Nargis Oaf P L D 196f) Kar, 452 t Chadratka Rat v.
Srikant Rat A I R 1929 All. 597 (1) and Mst. Zainunnisa v. Muhammad
Mozammal P L D 1972 Kar. 401 ref.

(b) Guardians and Wards Act (VIII of 1890)-

S. 48-Discretion exercised by Single Judge in declining to treat appeal as a


revision tinder S. 48-Not interfered with in Letters Patent Appeal-Letters Patent
(Lahore). Art. 10.-[Appeal (civil)Revision (civil)).

Nasirullah Awan for Appellant.

Dates of hearing : 20th and 21st September 1977.

JUDGMENT

I. MAHMUD, J.-This is a L. P. A. from the judgment of a learned Single Judge of


the High Court (Dorab Patel, J., as he then was) dated F-9-1971 dismissing, as not
maintainable, the appeal filed by the appellant from the order passed by the
Court of the Family Judge. Hyderabad dated 6-8-1971.

2. Briefly, the facts are that one Alimuddin died in Tando Allahyar on 11-1-1970
leaving behind him, inter alia, a widow and 4 minor children from his two pre-
deceased wives anal two adult daughters. Soon after hit death, one Saleem.
brother of the deceased's first wife, assumed de facto management of the
deceased's agricultural lands and leased the leads to the appellant. Saadat Ali
Khan by a lease dead dated :27-4-1970. Dis;me3 arose about the guardianship of
the minors, Therefore, Muhammad Yaqoob respondent No. 1, the nephew of the
deceased Aleemuddin applied to the Family Court for his appointment as
guardian under section 25 of the Guardians and Wards Act, 1890 (herein-after
referred to as the Act) and also applied for appointment of receiver of the lands.
The learned Family Judge appointed the Nazir of the Court as interim receiver
and confirmed the appointment by his order dated 6-8-1971 and also ordered
that the person and property of the minors should be given in the custody of the
Court of Wards. Being aggrieved by the said .order in so far as it affected the
lands in his occupation, the appellant preferred an appeal to the High Court
(Misc. Appeal No. 72 of 1971). The appeal was dismissed as not maintainable by
Dorab Patel, J. (as he then was) by the impugned Judgment dated 8-9-1971. The
learned Judge held that no appeal lay under section 47 of the said Act. He also
declined to treat the appeal as a revision under section 48 of the said Act, in the
exercise in his discretion.
Page No. 1 of 2
3. We have heard Mr. Awan on behalf of the appellant. His submission is that the
learned .fudge failed to consider that the Family Court, as a Guardianship Court,
had no jurisdiction to appoint a receiver of lands in possession of the appellant as
a third party. even assuming that he was a trespasser. Ire cited the case of Jaffar
Ali and others v. Mst. Nargis Bai P L D 1960 Kar. 452 which held that a
Guardianship Court has no jurisdiction to decide a disputed claim between a
minor and a third person, who is not subject to the jurisdiction of the Court. He
also cited the case of Chadraika Rai v. Srikant Rai A I R 1929 All. 597 (1) which
held that the District Judge who appoints a person as guardian of a minor has no
jurisdiction to pass any order against the person who was in possession of the
minor's property as trespasser prior to such an appointment and all that he can
do is to direct the guardian to bring a suit against the trespasser to recover
possession.

4. Be that as it may, there is no doubt that no appeal lay from the order of the
Family Court to the High Court under section 47 of the said Act, as it was not an
order of the kind mentioned therein. The learned A Judge was therefore right in
holding that the appeal was not maintainable. This was also hold by the Full
Bench in Mst. Zainunnisa v. Muhammad Mozammil P L D 1972 Kar. 401 in so far
as a Civil Judge acted as a Family Court was concerned. We also see no reason to
interfere with the exercise of the discretion in declining to treat the appeal as a
revision under section 48 of the said Act.

5. There is no merit in this appeal. It is accordingly dismissed with no order as to


costs.

S. Q. Appeal dismissed

Page No. 2 of 2
P L D 1965 (W. P.) Lahore 183

Before Sardar Muhammad 1qbal, J

Mst. MAQSOODAN BIBI-----Petitioner

versus

Mst. BHANO-----Respondent

Civil Revision No. 65 of 1964, decided on 15th June 1964.

(a) Civil Procedure Code (V of 1908), Ss. 114 & 151 and O. XLVII, r. 1-Review-
Substantive right-Not available unless expressly conferred by statute-No Court
has inherent power to review its own order-Constitution of Pakistan (1962), Art.
130.

Jalal Din v. Major Muhammad Akram Khan P L D 1963 Lah. 596; In re: Prdhlad
Krishana Kurne A I R 1951 Bom. 25 and Hajee Suleman v. custodian, Evacuee
Property A I R 1955 M B 108 ref.

(b) Guardians and Wards Act (VIII of 1890), S. 48 read with Civil Procedure Code
(V of 1908), S. 141 and O. XLVII, r. 1-Provisions of Civil Procedure Code creating
certain substantive rights, e.g., right of appeal or review-Not ipso facto
applicable in similar proceedings in all civil Courts-Proceedings before Guardian
Judge-Proceedings in Court of civil jurisdiction Guardian Judge, nevertheless,
has no jurisdiction to review his own order.

(c) Guardians and wards. Act (VIII of 1890), S. 48-ReviewNot competent.

Sonba v. Narayan A I R 1924 Nag. 260 and Sultan Singh v. Hashmat Ullah and
others 109 P R 1915 distinguished.

Farid v. Mitho 143 P R 1906; Ralla v. Mst. Manglan 116 P R 1912 and Mst. Sharfan
v. Mst. Bholi and others A I R 1922 Lah. 395 ref.

(d) Civil Procedure Code (V of 1908)----Provisions cannot override those of


special enactment.

(e) Civil Procedure Code (V of 1908), S. 141-Provisions not applicable to


substantive rights like right of appeal or review.

(f) Guardians and Wards Act (VIII of 1890), S. 9 Application for guardianship of
person and property of minor Minor, having immovable property within
jurisdiction of Court but ordinarily residing outside its territorial limit-Court
cannot assume Jurisdiction, in such case, to deal with application as regards
guardianship of person of minor.

Mian Sher Alam for Petitioner.

Kh. Muhammad Tufail for Respondent.

Date of hearing: 15th June 1964.

JUDGMENT

The respondent Mst. Bhano, is paternal grand-mother of Mst. Zubeda Bibi the
minor. She applied in the Court of Guardian Judge at Lyallpur for appointment
of the guardian of the person and property of the minor. Khan Muhammad
Siddiq Ahmad Khan, the learned Guardian Judge, ordered the return of the
Page No. 1 of 4
petition on the ground that he had no jurisdiction in the case by holding that the
minor neither resided within his jurisdiction nor did she own any property there.
The respondent moved a review petition against the order alleging that the
minor, in fact, owned property within the jurisdiction of the Court. The review
petition was accepted by an order, dated the 16th of December 1963, and the
learned Guardian Judge assumed jurisdiction in the case. Mst. Maqsoodan, the
mother of the minor, has applied to this Court invoking its revisional jurisdiction
to have the order of the learned Guardian Judge quashed on the ground that he
had no jurisdiction to review his earlier order.

2. The first question which falls for determination is whether an alder passed
under the Guardians and Wards Act can be reviewed. The power of the High
Court to interfere with the orders of the lower Court in its revisional jurisdiction
is preserved in section 48, which reads as under:-

"48. Save as provided by the last foregoing section and by section 622 of the Code
of Civil Procedure, an order made under this Act shall be final and shall not be
liable to be contested by suit or otherwise:"

This section attaches finality to orders made under this Act except when they can
be challenged either by way of appeal under section 47 or by way of revision
under section 115, C. P. C. This section is intended to indicate that once an order
is made it shall not be contested by a substantive suitor by any other form or
litigation, save as provided therein. The Legislature has expressed its intention
without any ambiguity and it clearly meant to give finality to the orders passed
under the Act 'except that they could be challenged in appeal or revision. The
right of review is like a right of an appeal-a substantive right, an it is not
available unless it is expressly conferred by a statute No such right is conferred
by the Guardians and Wards Act. I appears that the Legislature did not intend to
give such a right because otherwise it would have been included in section 48.
The absence of reference to review in the section leaves no doubt whatsoever that
the power of the Courts to review their orders was excluded by necessary
intendment. The learned counsel for the respondent, however, referred to Sonba
v. Warayan (A I R 1924 Nag. 260), to contend that a Court under the Guardian
and Wards Act could review its own order. This decision can be of no assistance
to him for the reason that the relevant provisions of law were not considered and
discussed in the case. No reference was made to section 48 of the Act which
attached finality to orders under the Act, except when they can be challenged
either by way of appeal or by way of revision under section 47 .of the Act or
under section 115, C. P. C. Reliance was placed in this judgment on Sultan Singh
v. Hashmat Ullah and others (109 P R 1915). The Guardian Judge in that case
cancelled the sale of the property of the minor and it was held that even if the
Guardian Judge had given the sanction under sections 29 and 31 (1) it was not
beyond the power of that Court to intervene and stop the same if it found
something detrimental to the ward's interest. The question whether the Court
had the power of review under the Act was not at all considered.

3. Relying on section 141, C. P. C., it was next argued that the orders passed by a
Guardian Judge can be reviewed under section 114, read with Order XLVII, rule
1, C. P. C. It is specifically provided in section 141, .C. P. C. that the procedure
provided in this Code in regard to suits shall be followed, so far as it can be
made applicable, in all proceedings in any Court of civil jurisdiction. There can
be no denying the fact that the Guardian Court is a Court of civil jurisdiction and
a proceeding under the Guardians and Wards Act is a proceeding in the Curt of
civil jurisdiction. The Code undoubtedly applies to the procedure of all Courts of
civil jurisdiction. The provisions of the Code, therefore, will be applicable to
regulate the procedure of a Guardian Court. This provision, however, cannot be
pressed into service to say that where the Code has created certain substantive
rights like the right of an appeal or review, the same also became applicable in
similar proceedings in all Courts of civil jurisdiction. The right of an appeal or
Page No. 2 of 4
review is a substantive right and not a mere right of procedure. Thus section 141,
P. P. C. is not applicable in this case, and the provisions of the Code providing
for an appeal or review are not attracted to proceedings under the Guardians
and Ward: Act.

4. The case may be viewed from another angle as well The C. P. C. is a law of
general application. It cannot override the express provisions of a special Act.
The right of a party to seek review is clearly excluded by the Guardians and
Wards Act

The provisions of the Code have to be controlled by those in special enactments


and in that view of the matter also the provisions of section 114 or Order XLVII,
C. P. C. providing for review are not applicable to cases under the Act. The
precise matter was considered in Farid v. Mitho (143 P R 1906) and it was held
that an order made by a District Judge under section 7 of the Guardians and
Wards Act refusing to appoint a guardian was not open to review, and that
section 623 (it is like section 114, read with Order XLVII), C. P. C., which deals
with reviews of judgments, had no application to the proceedings under the
Guardians and Wards Act. Interpreting section 48 of the Guardians and Wards
Act, it was observed in the judgment that the words of- the section are clear and
unambiguous and in face of those specific provisions, the general provision of
section 647 (it is like section 141) C. P. C., which only applies to proceedings
other than suits and appeals, could not detract from the stringency of the rule
laid down in section 48 of Act VIII of 1890. In this judgment it was not noticed
that section 647 (which is: like section 141), C. P. C. in its very nature did not
apply to substantive rights like the right of appeal or a review. In Ralla v. Mst.
Manglan (116 P R 1912) it was held that section 114, C. P. C., providing power to
review does not apply to the Guardians and Wards Act. In Mst. Sharfan v. Mst.
Bholi and others (A I R 1922 Lah. 395), it was held that it was not competent for
the Subordinate Judge to review his order of appointment of the guardian of the
minor. It would thus be clear that no power of review existed in the learned
Guardian Judge to have set aside his earlier order dated the 16th of November
1962.

4. It was next argued that the Guardian Judge could pass the impugned order in
the exercise of his inherent jurisdiction. There is no provision in the Guardians
and Wards Act enabling the Court to exercise an inherent jurisdiction. Under
Article 13 of the Constitution a Court can exercise only a jurisdiction which is
conferred on it either by Constitution or law. There being no such power
conferred on the Guardian Court, it cannot exercise any inherent jurisdiction.
The same question came up for consideration in Jalal Din v. Major Muhammad
Akram Khan (P L D 1963 Lah. 596) where their Lordships of the Full Bench,
repelling the contention that the power to review should be regarded as inherent
in the Court held that this argument was no longer available in view of clear
provisions of Article 130 of the Constitution which prohibits the Courts to
exercise any jurisdiction which is not vested in them either by the Constitution or
by law. Their Lordships therefore, observed that "unless it is provided that an
order once made may be reviewed, it would not normally be capable of being
reviewed". The case before the Full Bench was whether the High Court can
review its order passed in the exercise of the writ jurisdiction. It was held that
since the power was not specifically given to them in this behalf, they had no
authority to review their own orders. Reference in this behalf may also be made
to a foreign judgment, In re: Prahlad Krishana Kurne (A I R 1951 Bom. 25) where
it was held:

"Therefore, when Dixit and Shah, JJ. rejected the application of the applicant pn
12-6-1950, it was the decision of the High Court, and the question is whether it is
open to the applicant to approach any other Judge of the High Court for a similar
purpose notwithstanding the decision of the High Court to be contrary. When
one analyses the situation, the effect of the argument of the applicant comes to
Page No. 3 of 4
this that the decision of the High Court on an application for a writ for the
enforcement of the fundamental rights under Article 226 is subject to review by
the High Court. It is clear that no Court has an inherent power of review. A
power of review' like a power of appeal must be conferred by statute. As far as
the Criminal Procedure Code is concerned, no power of review is given to the
High Court in criminal matters, and there is nothing in Article 226 which would
induce us to hold that the Constitution has conferred a power upon the High
Court of review in matters falling under that Article."

The same view was taken in another foreign judgment, Hajee Suleman v.
Custodian, Evacuee Property (A I R 1955 M B 108). 1 am, therefore, of the view
that since there is no provision in the Guardians and Wards Act for the review of
the orders passed under that Act, the Court after passing an order under the Act
becomes functu officio. The order so passed assumes finality under section 48 of
the Guardians and Wards Act and cannot be reviewed by the same Court.

5. There is another aspect of the case also. The parties admitted before me that
the minor ordinarily resides within the jurisdiction of the Guardian Court at
Sargodha and that she has immovable property within the jurisdiction of the
Courts at Lyallpur. The respondent applied both for the guardianship of the
person and property of the minor before the Guardian Judge at Lyallpur. Under
section 9 of the Act the only Court competent to assume jurisdiction for the
appointment of guardian of the reason of the minor was the Court at Sargodha.
The Court at Lyallpur had no jurisdiction whatsoever in this behalf. So far as the
guardianship of the property is concerned, an application could be made either
to the District Court having jurisdiction in the place where the minor ordinarily
resides or to a District Court having jurisdiction in a place where he has
property. Such an application, therefore, could be made both at Sargodha or at
Lyallpur. The learned Guardian Judge accepted the review petition and assumed
jurisdiction to deal with the application for the appointment of guardian both of
the person and property o the minor. He, of course, could not do so. His order to
the extent it related to the application of the- respondent for the appointment of
guardian of the person of the minor is clear without jurisdiction. No action,
however, is called for in this respect for the reason that I have already held that
the order passed by the Guardian Judge reviewing his earlier order is without
jurisdiction.

6. In the view of the matter I take, the order, dated the 16th of December, 1963, is
set aside. It will be open for the respondent to take his petition back from the
Guardian Judge at Lyallpur and present it to the Court of competent jurisdiction.
The petition is accordingly accepted, but there shall be no order as to costs.

K. B. A. Petition accepted.

Page No. 4 of 4
Application inter alia u/s 12(2), 151, and 115 of the CPC to set aside Order dated
_______, granting guardianship certificate and all subsequent orders/proceedings
pursuant to that order

Page No. 1 of 1