Monday, 27 October 2014

Only a Party to the suit can challenge ex-parte decree

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, RehmatBibi relinquished all her rights in respect of the custody of the minor leaving him to be brought up by Nasir Ahmad ShahidStatedlyRehmat 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 toimplead 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 SyedUsman 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 MstHumaira 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 MstZainab 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.

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