Is CPC applicable on Guardianship Proceedings

PLJ 2011 Peshawar 63
[D.I. Khan Bench]

Present: Muhammad Alam Khan, J.

MUHAMMAD RASOOL and 3 others--Petitioners

versus

Mst. MASROON BIBI and 16 others--Respondents

C.R. No. 236 with C. Misc. No. 142 of 2004, decided on 18.9.2008.

Guradians and Wards Act, 1890 (VIII of 1890)--

----S. 48--Question, whether civil revision is competent in the case and whether CPC is applicable in guardianship proceedings--Held: Under Section 48 of the Guardians and Wards Act, the provisions of CPC are applicable--In view of express provisions of CPC being made applicable to the guardianship proceedings before the Guardian Judge, the revision petition before High Court are competent.     [Pp. 67 & 68] A

Mr. Rustam Khan Kundi, Advocate for Petitioners.

Sh. Iftikharul Haq, Advocate for Respondent No. 1.

Mr. Abdul Aziz Khan Kundi, Advocate for Respondents No. 6 & 7.

Date of hearing: 30.6.2008.

Judgment

Through this consolidated judgment, I propose to dispose of C.R. No. 236/2004 (Muhammad Rasool Khan and three others. Vs. Mst. Masroon Bibi and 16 others) and C.R. No. 237/2004 titled Muhammad Rasool Khan and three others. Vs. Mst. Masroon Bibi and 16 others) as both of the revision petitions arise between the same parties and involve common questions of law and facts.

2.  Aggrieved from the judgment and order dated 05.5.2004 passed by learned Additional District Judge-IV, Bannu, petitioner Muhammad Rasool Khan son of Rab Nawaz Khan himself and on behalf of his three 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 No. 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 Waliullah 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 proceedings, when the trial was concluded, the learned Guardian Judge, on 05.01.2004, 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 No. 2 to 4).

4.  Being the legally appointed guardian, Respondent No. 1 on the strength of guardianship certificate dated 05.01.2004 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 order 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 PPC 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 No. 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 05.01.2004 just to deprive the minors of their valuable property.

6.  The Court put to trial the subject complaint and summoned the respondents for 04.3.2004. On 04.3.2004 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-moto action and declared the guardianship certificate as cancelled vide order dated 05.4.2004.

7.  Feeling aggrieved of the suo-moto order of the Guardian Judge dated 05.4.2004. the present Respondent No. 1 assailed the same before the learned appellate Court. During the pendency of appeal, on 05.5.2004, Respondent No. 1 herself appeared before the learned appellate Court (Additional District Judge-IV, D.I.Khan) and recorded her statement as Ex.PA 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 No. 1, while confirming the status of her attorney Waliullah, the learned appellate Court set-aside the impugned judgment and the guardianship certificate dated 05.01.2004 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. 1013/2004 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 involved in C.R. No. 237/2004 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 Courts, she has sold the suit house belonging to the minors through her attorney Waliullah on a very meager 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 be 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 of 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 Vs. Muhammad Zaman and others (PLD 1987 SC 139).

11.  Mr. Abdul Aziz Kundi, learned counsel appearing for Respondents No. 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 Vs. Mst. Najma Parveen (PLD 1986 SC 14), Sakhawat Khan and another Vs. Mst. Shui Khelay (PLD 1981 SC 454), Akhtar Ali Said Bacha Vs. Mst. Naheed Bibi (PLD 2003 Peshawar 63) and Mst. Ulfat Shaheen Vs. 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.

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 No. 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 bonafide 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 petitions 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 orders.--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. 1, 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 bonafide purchasers from their entitlement.

16.  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.

(M.S.A.)           Petitions dismissed.