' MUHAMMAD JEHANGIR. ARSHAD, J.---Mst. Nasreen petitioner is aggrieved of order dated 4-10-2006 passed by learned Civil Judge 1st Class/Guardian Judge, Alipur whereby her application for recall/setting aside ex parte order dated 20-4-2005 passed in a guardianship application titled "Ghulam Abbas v. Public-at-Large" was dismissed and the order dated 1-12-2006 passed by learned Additional `District Judge (Syed Muhammad Zafar Abbas Sabazwari), dismissing petitioner's revision against the above order of learned Guardian Judge dated 4-10-2006.
2. The facts in brief are that Ghulam Abbas respondent filed an application before the Civil Judge/Guardian Judge against the petitioner seeking custody of minor children namely Mst.
Umera Abbas alias Uzmi minor aged 5 years and Fahad Abbas minor aged 2-1/2 years and as the petitioner failed to appear before the learned Guardian Judge despite service through publication in daily "Sang-e-Meel", Multan, the learned Guardian Judge vide judgment dated 20-4-2005 allowed the said application ex parte and directed the petitioner to hand over the custody of the minors within one month. The petitioner on 10-6-2006 filed an application seeking recall/setting aside of the above mentioned ex parte order. The learned Guardian Judge after receipt of the reply and hearing arguments vide order dated 4-10-2006 dismissed the same holding the same to be barred by limitation. The revision against the said order filed by the petitioner was also dismissed by learned Additional District Judge, Alipur on 1-12-2006. Through this constitutional Petition both the above mentioned orders have been sought to be declared as without lawful authority and of no legal effect.
3. At the very outset, I would like to point out that after enforcement of Family Courts Act, 1964 matters relating to the custody of the minors are now to be governed by the said Act and not under the Guardians and Wards Act; and only the matters pertaining to the appointment of guardian of the minor's property are now to be entertained and decided by the nominated Civil Judges as Guardian Judges. Since no revision is competent under the Family Courts Act, 1964, therefore, any final judgment or decree passed in the matters of custody of the minors is subject to appeal before the District Court/District Judge where the Family Court is not presided over by District Judge, Additional District Judge or a person notified by the Government of the rank and status of District Judge or Additional District Judge in terms of section 14 of the Punjab Family Courts Act, 1964, therefore, neither the revision filed by the petitioner before the learned Additional District Judge against the order dated 4-10-2006 seeking recall/setting aside of ex parte order dated 20-4-2005 was maintainable, nor the same could be competently entertained by the learned Additional District Judge as Guardian Judge. However, there is another important aspect of the matter pertaining to the decision of the Family Court dismissing/rejecting application for setting aside ex parte order or decree. Such like orders though not covered by the term "final judgment or decree" making them appealable as of right in such like cases yet the same are definitely covered by the words "decision given" as enumerated in section 14 of the Family Courts Act, 1964 and such like decisions though interim in nature, like the present one, are definitely appealable, otherwise, the same would amount to shutting the doors for the aggrieved person against such like orders and would also amount to putting a seal even on patently illegal and without jurisdiction decisions dismissing such application against ex parte judgments/decrees, etc. Like the present one. Since the instant case the learned Judge family Court refused to set aside the ex parte order dated 20-4-2005, therefore, the same was definitely appealable being decision of a Family Court, within the meaning of section 14 of the Family Courts Act, 1964. Reliance is placed on the case Mst. Mubin Khanam v. Javed Ahmad Khan 1991 M LD 1039.
4. On merits it has been noticed that the learned Judge Family Court dismissing application of the petitioner on the ground that same was barred by limitation without noticing the fact that admittedly the petitioner was never served in person and it was on the basis of report of the Process Server regarding refusal to receive notice and further through proclamation in "Sang-e- Meel", Mutlan, whereas in terms of section 8(c) of the West Pakistan Family Courts Act, the learned trial Court did not take notice of the fact that neither a notice by registered post acknowledgement due or by courier service or by both with copy of the plaint, copy of the schedule referred in subsection (2) of section 7 and copy of-documents referred in subsection (3) of said section, nor any notice to the Chairman of the Union Council where the petitioner resided, was sent as required by clause (ii) of subsection (c) of section 8. Similarly, it is not established from the record whether on receipt of the said notice, the Chairman of the Union Council ever displayed the same on the Notice Board of the Union Council for a period of seven consecutive days and informed the Family Court after the expiry of the said period that notice had been so displayed, per requirement of subsection (3) of section 8, therefore, impugned service of the petitioner either through refusal or by proclamation in the newspaper cannot be considered as due service either under the Family Courts Act or in terms of Order V, Rule 20, C.P.C. As applicable to the Family Courts in terms of subsection (6) of section 8 of the said Act. Further it was case of the petitioner in her application filed for recall/setting aside of the ex parte decree that she was resident of Mohallah Bokhari Uch Sharif, Ahmadpur Sharqia, on which address she had already filed suits for the return of dowry articles as well as. Maintenance against the respondent and he had already entered appearance in those cases but in the proceedings initiated by the respondent her address was shown of Ward No,12, Alipur and on the basis of said incorrect address report of refusal was procured which D fact cannot be decided in a summary manner and for that after framing of issues the evidence had to be recorded. It is established principle of law that court should always lean in favour of adjudication of causes on merits and nobody to be non-suited on technical grounds as held in Mst.
E Bundi Begum v. Munshi Khan and others PLD 2004 SC 154. In the instant case the learned trial court dismissed the application of the petitiOners without affording her opportunity of producing evidence in a F summary manner. Further it has been noticed that before passing the order dated 20-4-'2005 the learned Judge Family Court did not record any findings that handing over custody of the minor to the respondent was in the welfare of the minors which was the only paramount consideration G for deciding custody application. The learned Judge Family Court as well as the learned Additional District Judge also failed to take notice of the fact that petitioner was involved in a Hudood case by the respondent and she remained behind the bars for a considerable length of time. I am, therefore, satisfied that all the proceedings against the petitioner were H not only conducted in violation of provisions of section 8 of the Family Courts Act but also in haste and arbitrary manner. Even the order dated 20-4-2005 granting custody of the minors to the respondent does not indicate that same was passed after application of mind that the delivery of custody of the minors to the respondent was in the welfare of the minors which is the supreme and paramount consideration in such like cases as held by the Hon'ble supreme Court of Pakistan in the case Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCM R 821 and Sardar Hussain and others v. Mst. Parveen Umeer and others PLD 2004 SC 357.
5. The upshot of above discussion is that this writ petition is allowed and the entire proceedings conducted by the learned Judge Family Court including the order dated 20-4-2005 accepting application of the private respondent and handing over custody of the minors to him, as well as the order dated 4-10-2006 of the learned Judge Family Court dismissing petitioner's application for recall/setting aside the order dated 20-4-2005 and the order dated 1-12-2006 of the learned Additional District Judge, Alipur dismissing petitioner's revision petition, are set aside being without lawful authority and the application filed by the respondent for seeking custody of the minors is declared to be pending before the learned Judge Family Court who shall decide the same afresh after recording of evidence and in accordance with law.