PLJ 2011 Lahore 767
Present: Asad Munir, J.
NAVEED MUNIR--Petitioner
versus
ADJ etc.--Respondents
W.P. No. 26514 of 2010, decided on
27.6.2011.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2) & O. IX, R. 13--Ex-parte
decree--Not party to decree--Validity--A person cannot seek setting aside of an
ex-parte decree under Order 9, Rule 13, CPC if he was not party to such decree
but can challenge the validity of decree by applying under S. 12(2), CPC. [P. 770] A
PLD 1994 Pesh. 194, ref.
Constitution of Pakistan, 1973--
----Art. 199--Guardians and Wards Act,
1870, S. 47--Civil Procedure Code, (V of 1908), S. 12(2)--Constitutional
petition--Custody of minor--Appointment as guardian of minor--Claimed on one
hand by petitioner who was minor's cousin and on other, by minor
step-mother--Father of minor was died leaving behind minor and widow--Custody
was entrusted to step-mother--Petitioner filed an application for appointment
as guardian of minor--Application was allowed--Question of--Whether it is
petitioner or respondent who was lawfully appointed guardian when both of them
were appointed as guardians of minor by two different orders of guardian
judge--Validity--Each party had managed to obtain order in its favor by keeping
other in dark and by not impleading the other in
guardianship proceedings instituted by it--Two orders were mutually exclusive
as two different guardians for one and same minor cannot be appointed--In order
to resolve the conflict, it was necessary that one of two orders was struck
down by guardian judge--Impugned order directing guardian judge to decide the
case on merits, cannot be questioned as only one person either petitioner or
respondent should act as guardian of minor--Petition was dismissed. [Pp. 771 & 773] B & F
West Pakistan Family Courts Act, 1964
(XXXV of 1964)--
----S. 17--Civil Procedure Code, (V of
1908)--O. IX, R. 13--Custody of minor--Appointment of two
guardians--Maintainability of application u/Order, 9, R. 13,
CPC--Validity--Provisions of CPC are not all applicable to proceedings before
Guardian Judge in view of S. 17 of Family Courts Act, 1964. [P. 771] C
Guardians and Wards Act, 1890--
----S. 47--Custody of minor--Question
of--Lawful appointed guardian of minor--Welfare of minor demands be one
guardian--Contradictory two orders cannot co-exist--Validity--Guardian judge
was bound to exercise his parental jurisdiction as well as inherent power to
remove confusion--Held: Application challenging Guardian Judge's order cannot
regarded as incompetent but has to be allowed to help Guardian Judge exercise
his parental jurisdiction for minor's welfare which must override any other
consideration and which cannot give way to technicalities and formalities of
law. [P. 772] D
PLD 1967 Lah.
977 & PLD 1967 SC 402.
Mr. Naseem Sabir Chaudhry, Advocate for
Petitioner.
Malik Muhammad Ghazanfar
Ali Khokhar, Advocate for Respondent No. 2.
Date of hearing: 18.5.2011.
Order
The controversy raised in this writ
petition pertains to the guardianship of an eight-year old minor, Sanaullah Siddique, claimed on
the one hand by the petitioner, who is minor's cousin and on the other, by the
minor's step-mother, Respondent No. 2.
2.
The relevant facts necessary for the disposal of this writ petition are
that the minor, who is the son of Nasir Ahmad Shahid and Rehmat Bibi, was born on 16.04.2003. Sometime later, Nasir Ahmad Shahid divorced Rehmat Bibi, who belonged to Chitral. At the time of divorce, Rehmat,
Bibi relinquished all her rights in respect of the
custody of the minor leaving him to be brought up by Nasir
Ahmad Shahid. Statedly, Rehmat Bibi got re-married in Chitral but her present whereabouts are not known.
Subsequently, Nasir Ahmad Shahid
on 5.3.2006 contracted a marriage with Respondent No. 2, Kausar
Parveen. Record shows that Nasir
Ahmad Shahid, who owned considerable assets, died on
17.03.2007 leaving behind the minor and Respondent No. 2 as his only legal
heirs as well as a will dated 09.06.2006 whereby the custody of the minor was
entrusted to his wife, Respondent No. 2.
3.
The petitioner, being the son of late Nasir
Ahmad Shahid's brother, on 26.03.2008 filed an
application under the Guardians and Wards Act, 1890, for his appointment as the
guardian of the minor. The said application was allowed vide Guardian Judge's
order dated 08.5.2008 whereby guardianship certificate was ordered to be issued
to the petitioner. There is an allegation that on 11.05.2008 Respondent No. 2
abducted the minor whereupon FIR No. 399/2008 dated 10.06.2008 was registered
under Section 363 at Police Station Raiwind, Lahore,
at the instance of petitioner's brother, Jalil Ahmad.
Thereafter, on 16.01.2009 Respondent No. 2 preferred an application under
Section 12(2) CPC against the Guardian Judge's order dated 08.05.2008
appointing the petitioner as the guardian of the minor. The application was
dismissed by the learned Guardian Judge, Lahore, vide order dated 27.02.2009
for failure to deposit process fee whereafter
Respondent No. 2 on 01.07.2009 filed an appeal under Section 47 of the
Guardians and Wards Act, 1890. However, on 1.7.2009 the said appeal was
dismissed as withdrawn on Respondent No. 2's statement that the appeal was
filed by mistake as an application under Order IX, Rule 13, CPC, being
competent, would be filed before the Guardian Judge. On 25.07.2009, Respondent
No. 2 filed an application under Order IX, Rule 13, CPC, read with 151 CPC for
recall of Guardian Judge's order dated 08.05.2008 on the ground that the
petitioner had procured the order by deliberately omitting to implead Respondent No. 2 as a party or giving her notice
even though she had the custody of the minor since the death of minor's father
in accordance with his will. The learned Guardian Judge vide order dated
25.09.2010 dismissed the application for being hopelessly time barred under
Rule 13 of the West Pakistan Family Court Rules, 1965 as Respondent No. 2 had
due knowledge of the order dated 08.05.2008 on 15.01.2009 when she filed her
application under Section 12(2) CPC. It was also held by the learned Guardian
Judge that application under Order IX, Rule 13, CPC
could not be maintained by Respondent No. 2 as she was not party to the
guardianship proceedings filed by the petitioner. During this period,
Respondent No. 2 on 04.02.2009 also filed application for being appointed as
the Guardian of the minor. This application was allowed vide Guardian Judge Lahore's
order dated 07.05.2009 whereby she was appointed as a guardian of the person
and property of the minor. The petitioner has challenged the appointment of
Respondent No. 2 made vide Guardian Judge's order dated 07.05.2009 through his
application dated 1.7.2009 which is pending before the Guardian Judge.
4.
Respondent No. 2 filed an appeal against the Guardian Judge's order
dated 25.02.2009 whereby her application under Order IX, Rule 13, CPC, had been
dismissed. By his judgment dated 25.11.2010 the learned Additional District
Judge, Lahore, accepted the appeal and remanded the case back to the Guardian
Judge "for just and fair decision of the application under Order IX Rule
13 CPC on merits and after framing of issues and recording of evidence."
5. While
assailing the learned Additional District Judge, Lahore's judgment dated
25.11.2010 through this petition, the learned counsel for the petitioner has
contended that learned Additional District Judge has exercised his jurisdiction
arbitrarily as the application under Order IX, Rule 13, CPC, to set aside
Guardian Judge's order dated 08.05.2008 was filed on 25.07.2009 after a delay
of more than a year and there was no reason to condone the delay as Guardian
Judge's order dated 08.05.2008 was admittedly within the knowledge of
respondent No. 2 on 16.01.2009 when she challenged it through an application
filed under Section 12(2) CPC. In support, the learned counsel for the
petitioner has relied upon Rehmat Din and others
versus Mirza Nasir Abbas and others (2007 SCMR 1560), Syed
Akbar Shah and four others versus Syed Usman Bacha and three others (PLD
1994 Peshawar 194), Mrs. Amina Bibi
through General Attorney versus Nasrullah and others
(2000 SCMR 296). It was further submitted that, in any case, the application
under Order IX, Rule 13, CPC, to set aside order dated 08.05.2008 is not
competent as admittedly Respondent No. 2 was not a party in the proceedings
which resulted in the impugned order and that the only remedy which was
available to Respondent No. 2 was through an application under Section 12(2)
CPC but the said remedy had been abandoned. Reference was made to Syed Akbar Shah and 4 others versus Syed
Usman Bacha and 3 others
(PLD 1994 Peshawar 194), wherein it was held that a person cannot seek setting
aside of an ex parte decree under Order IX Rule 13 CPC if he is not party to
such decree but can challenge the validity of the decree by applying under
Section 12(2) CPC Reference was, also made to Mrs. Amina
Bibi through General Attorney versus Nasrullah and others (2000 SCMR 296) to plead that where a
person has two remedies are available to set aside an ex parte decree, the
second remedy cannot be availed after exhausting the first remedy. I have also
heard the learned counsel for Respondent No. 2 who has supported the impugned
judgment.
6.
The crucial issue that needs to be determined by the Family Judge or the
Guardian Judge is whether it is the petitioner or Respondent No. 2 who is the
lawfully appointed guardian of the minor when both of them have been appointed
as guardians of the minor by two different orders of Guardian Judge, Lahore,
one passed on 08.5.2008 in
favour
of the petitioner and the other
passed on 07.05.2009 in favour of Respondent No. 2.
Each party has managed to obtain the order in its favour
by keeping the other in the dark and by not impleading
the other in the guardianship proceedings instituted by it. Obviously, the said two orders are mutually exclusive as two different
guardians for one and the same minor cannot be appointed. In order to resolve
the conflict, it is necessary that one of the two orders is struck down by the
Guardian Judge.
7.
The petitioner has challenged the appointment of Respondent No. 2 made
vide Guardian Judge's order dated 07.05.2009 through his application dated
1.7.2009 which is pending before the Guardian Judge. Similarly, Respondent No.
2, who claims to have the minor's custody since the death of minor's father on
17.03.2007, has also challenged the appointment of the petitioner by filing on
16.01.2009 an application under Section 12(2), CPC but appears to have
abandoned it on 01.07.2009 at the appellate stage. However, Respondent No. 2 on
25.07.2009 filed an application under Order IX, Rule 13, CPC, to challenge the
appointment of the petitioner as the guardian of the minor. It is this
application that the petitioner opposes for being time-barred and for being
incompetent.
8.
The arguments of the learned counsel for the petitioner with respect to
the maintainability of Respondent No. 2's application under Order IX, Rule 13,
CPC, need not be considered at all as it is settled law that the provisions of
CPC are not at all applicable to proceedings before a Guardian Judge/Family
Judge in view of Section 17 of the West Pakistan Family Courts Act, 1964. In Zainab Tiwana versus Aziz Ahmad Waraich etc. (PLD 1967 Lahore 977), it was observed that
"Thus the application to the Family Courts of the Evidence Act and C.P.C.
has been definitely excluded, but the procedure prescribed "in", not
by or under, the Guardians and wards Act. 1890, has been retained. This
situation cannot be so interpreted as to bring C.P.C. again, through a back
door, to take its old place in guardianship proceedings. This will amount to
repealing Section 17." In a recent case titled Dr. Asma
Ali versus Masood Sajjad
and others (PLD 2011 Supreme Court 20), it was held by the Honourable
Supreme Court that the provisions of CPC are not stricto
senso applicable to the proceedings before a Family
Judge. In Ejaz Mahmood
versus Mst. Humaira and another
(1983 CLC 3305) also, it was observed that the provisions of CPC are not
applicable to a family suit but the Family Judge can adopt any procedure not
expressly barred by the Act.
9.
The arguments of the petitioner's learned counsel against the maintainability
of Respondent No. 2's application, if accepted, will in no way help resolve the
question of who should be or who is the lawfully appointed guardian of the
minor. The welfare of the minor demands that there should be one guardian and
to achieve that end, both the orders need to be thoroughly revisited by the
Guardian Judge so that one of them is struck down or any other order in the
welfare of the minor is passed. Thus, both the orders are under challenge till
one of them is recalled for the simple reason that being mutually contradictory
the two orders cannot co-exist. In view of the peculiar circumstances of this
case, the Guardian Judge is bound to exercise his parental jurisdiction as well as his
inherent powers to remove the confusion so that the well-being of the minor is
safe-guarded. In this perspective, Respondent No. 2's application challenging
Guardian Judge's order dated 08.05.2008, cannot regarded as incompetent but has
to be allowed to help the learned Guardian Judge exercise his parental
jurisdiction for the minor's welfare which must override any other
consideration and which cannot give way to the technicalities and formalities
of law. Reference can be made here to Zainab Tiwana versus Aziz Ahmad Waraich
etc. (PLD 1967 Lahore 977) wherein it was observed as under:
"Guardianship proceedings are held in
exercise of parental jurisdiction which is not a proper branch of law for
enforcement of technicalities of pleadings or strict formalities. The
guardianship Courts are to keep the welfare of the minors constantly in mind
and act with the object of promoting their interest. The Courts, may, in
suitable circumstances, at any time change or modify their orders for purposes
of better supervision of wards, Similarly, those who claim the custody of
minors cannot do so for satisfying their vanity nor even to soothe the craving
of their love or affection, but to do so when it is essentially for the welfare
of the minors themselves."
10.
In appeal, the aforesaid view was upheld by the Honourable
Supreme Court in Malik Khizer
Hayat Khan Tiwana versus Mst. Zainab Begum (PLD 1967
Supreme Court 402) with the following observation:
"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 paternal jurisdiction as if it were in loco
parentis 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".
11.
The learned Additional District Judge while passing the impugned order
has been rightly influenced by the dominant consideration of welfare of the
minor who has become the bone of contention between the petitioner and
Respondent No. 2 who are on war-path with each other as is demonstrated by the
criminal cases they have got registered against each other. Both have
challenged each other's
guardianship
certificates and it is
in the interest of the minor's welfare that the rightful guardian is appointed
for him. In case Respondent No. 2 loses the right to challenge the petitioner's
guardianship certificate and the petitioner's application under Section 12(2),
CPC, for cancellation of Respondent No. 2's guardianship certificate is
dismissed, the confusion will continue as the question of either the petitioner
or Respondent No. 2 being declared or appointed as the guardian of the minor
will remain unanswered. Thus, the impugned order, directing the Guardian Judge
to decide the case on merits, cannot be questioned as only one person either
the petitioner or Respondent No. 2 should act as the guardian of the minor.
12.
For the reasons stated above, no illegality or irregularity can be found
in the impugned order dated 25.11.2010, passed by the learned Additional
District Judge, Lahore. Resultantly, this writ petition, being without merit,
is dismissed with no order as to costs.
(R.A.) Petition
dismissed.
