Wednesday, 3 October 2018

PLJ 2017 Lahore 720

PLJ 2017 Lahore 720[Multan Bench Multan]
PresentAbdul Sattar, J.
SHABIR-UL-HASSAN--Petitioner
Versus
Mst. TANVEER ZAIDI and 3 others--Respondents
W.P. No. 1102 of 2017, decided on 16.3.2017.
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 25--Guardian, appointment of--Application for custody of minor was rejected by trial Court--Appeal was dismissed by 1st appellate Court--Decision without reasoning--Decision in slip shod manner--Rewriting of judgment--Validity--It is evident from oral evidence of parties, present age of minor child is more than 10 years and petitioner as well as respondent after separating from each other through divorce have not remarried--Reasons are to be given even in case of affirmative judgment--Similarly appellate Court is to state its own reasons for arriving at its conclusion--Court has not taken pain to discuss evidence of parties and it merely decided appeal in slip shod manner--High Court in exercise of constitutional jurisdiction set aside judgment passed by 1st appellate Court and case was remanded back for decision afresh in accordance with law by avoiding lapses noted above--Petition was allowed.    [P. 722] A
Mr. Muhammad Nasir Javed Khan, Advocate for Petitioner.
Date of hearing: 16.3.2017.
Order
Respondents No. 1 & 2 have been served notices personally but they have not appeared to contest the writ petition, hence, proceeded against ex-parte.
2.  Ex-parte arguments of learned counsel for the petitioner heard.
3.  Through this writ petition petitioner Shabir-ul-Hassan has impugned the judgment dated 27.07.2016 passed by Guardian Judge, Burewala dismissing the custody petition of the petitioner filed under Section 25 of Guardians and Wards Act, 1890 and judgment dated 08.12.2016 passed in appeal by learned Additional District Judge, Burewala maintaining the trial Court decision.
4.  Brief facts of the case are that the petitioner Shabbir-ul-Hassan filed petition under Section 25 of the Guardians and Wards Act, 1890 against the respondents in the Court of Guardian Judge, Burewalaseeking custody of minor son Meesam Abbas aged about 10 years and it was averred in the petition that the petitioner and Respondent No. 1 were married on 15.01.2006 and out of this wedlock minor son Meesam Abbas was born. On account of differences, the petitioner divorced the Respondent No. 1 on 11.02.2008. The minor son Meesam Abbas was in custody of his mother/Respondent No. 1. The petitioner alleged that Respondent No. 1 was not having any source of income and the amount of maintenance allowance provided by him was misused. The Respondent No. 1 was also suffering from medical problems. It was alleged in the petition that Respondent No. 1 had unduly given the custody of minor to Respondent No. 2 paternal aunt due to which his upbringing was adversely affected. The welfare of the minor required the switching over custody of minor son to the petitioner. The petition was contested from the respondents’ side. Issues were framed. Evidence of the parties was recorded. After conclusion of the trial custody petition of the petitioner was dismissed by the learned Guardian Judge, Burewala vide judgment dated 27.07.2016. The appeal was also dismissed by the learned Additional District Judge, Burewala vide judgment dated 08.12.2016, hence, this writ petition.
5.  Learned counsel for the petitioner has argued that impugned judgments are against law and facts as outcome of misreading and non-reading of evidence; that necessary issue on the controversy that minor child had been given to Respondent No. 2 was not framed by the trial Court; that the impugned findings are fanciful, arbitrary and based on surmises and conjectures and lastly the Courts below did not apply the judicious mind.
6.  As noted above the respondents have not opted to contest the writ petition inspite of service on the notice.
7.  Arguments considered. Record perused.
8.  Learned trial Court framed Issues No. 1 and 4 on the main controversy as to where lied the welfare of the minor and both the parties were required to prove the common issues. To prove his version the petitioner examined himself as AW1 and one of his friend Rehan Anwar as AW-2 and in documentary evidence receipts regarding payment of maintenance allowance were tendered. In rebuttal Respondent No. 1 Mst. Tanveer Zaidi examined herself as RW-1 and one Syed Moazzam Askri as RW-2, who happened to be relative of two ladies. In documentary evidence receipts of school fee were tendered.
9.  As is evident from the oral evidence of the parties, the present age of the minor child is more than 10 years and the petitioner as well as Respondent No. 1 after separating from each other through divorce have not remarried. In this situation, it was bit difficult to decide as to whom the custody of minor child should belong. Nevertheless Guardian Judge after fair and exhaustive analysis of parties’ evidence rejected the custody petition. But in appeal learned Additional District Judge, Burewala recorded his opinion on half page, which cannot be termed as judicial findings as the appellate judgment should state points arising for determination, its decision thereon and the reasons for its decision. Reasons are to be given in the judgment for the decision arrived at. Reasons are to be given even in case of affirmative judgment. Similarly the appellate Court is to state its own reasons for arriving at its conclusion.
10.  From the perusal of opinion portion of learned Additional District Judge, Burewala judgment dated 08.12.2016, it is noticed that the said Court has not taken pain to discuss the evidence of the parties and it merely decided the appeal in slip shod manner. It is thus a case of rewriting of the judgment in accordance with law.
11.  In view of above impugned judgment of Additional District Judge, Burewala dated 08.12.2016 is set aside, while allowing the writ petition in the terms that appeal filed by the petitioner shall be deemed to be pending before the senior most Additional District Judge posted at Tehsil Burewaia District Vehari, who after summoning the parties to the appeal and hearing arguments of their counsel shall decide the same afresh in accordance with law by avoiding the lapses noted above. Copy of this order be immediately sent to the Court concerned for compliance.
(R.A.)  Petition allowed


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