' KAZIM ALI MALIK, J.-Aliya Farhan Rabbani, petitioner No,l, was married to Mirza Farhan Rabbani, respondent No,l, on 21-1-2006. Their marriage was registered with Nikah Registrar, Union Council No,22 District Rawalpindi. Areeba Farhan alias Eesha Farhan, (petitioner No,2), now aged about 2 years and six months was born out of-the ) wedlock, On 19-12-2007, petitioner No,l along with her minor daughter left the house of her respondent husband and thereafter did not resume matrimonial obligations. Petitioner No,l alleged that she had been beaten up and turned out of his house at Lahore by respondent No,l, whereas the latter asserted that his mother in law took away Aliya Farhan, petitioner, on some pretext.
2A. Be that as it may, the fact is not in dispute or disputable that since 19-12-2007, the petitioner along with minor daughter has been living in desertion. On 12-1-2008, respondent No,l filed a suit for restitution of conjugal rights against petitioner No,l before the learned Judge Family Court at Lahore, wherein he specifically asserted that Aliya Farhan, petitioner, had left his house on 19-12- 2007 and did not return home thereafter. Statedly , the suit for restitution of conjugal rights was decreed as prayed for. Aliya Farhan Rabbani, petitioner No,l, however, refused to perform conjugal rights in pursuance to the Court decree. On the same day, Mirza Farhan Rabbani also filed an application under section 25 of the Guardians and Wards Act, 1890 against Aliya Farhan Rabbani, petitioner No,l. The minor daughter of parties Areeba Farhan had also been arrayed as respondent No,2. In this petition, it was specifically mentioned by respondent No,l that his wife left his house on 19-12-2007 and did not return thereafter. Petitioner No,l unsuccessfully approached this Court to get transferred the suit for restitution of conjugal rights and the application for custody of the minor from the Court at Lahore to competent Court at Rawalpindi. The petitioner challenged the territorial jurisdiction of learned Judge Guardian Court at Lahore by making an application under order Vll, Rules 10 and 11 read with 151, C.P.C, with the plea that she along with minor had been residing at Rawalpindi since desertion. The respondent contested the application on the ground that on the date of institution of the main petition Mst. Aliya Farhan was residing in Lahore and that after having joined proceedings through a counsel for her choice, she was estopped to challenge the territorial jurisdiction of A Court seized of the controversy particularly, when her request for transfer of case to Rawalpindi had already been dismissed by the High Court. The learned Guardian Judge, Lahore allowed the request q petitioner No,l and returned the main petition to respondent No,l for its presentation before the competent forum vide order dated 8-7-2008. Respondent No,l filed an appeal against the order of learned Guardian Judge, which was allowed by a learned Additional District Judge, Lahore and the controversy was remanded B to the learned Trial Court with a direction to decide the issue of territorial jurisdiction along with other issues after recording evidence. The petitioner has called in question legality and propriety of the order of Appellate Court dated 25-9-2008 by invoking Constitutional jurisdiction of this court.
0. I have heard both the sides and have perused the record very minutely and carefully.
1. In the light of counter versions put forward by the parties before the learned trial Court, the Appellate Court and also before this Court, the following legal questions have arisen for determination by this Court: -
(i) Whether it is an admitted fact that since 19 12-2007 the minor has been residing with her mother at Rawalpindi?
(ii) Whether the learned Appellate Court remanded the controversy regarding territorial jurisdiction to the learned trial Court for fresh decision in utter disregard of Article 113 of the Qanun-i- Shahadat Order, 1984?
' Before adverting to the abovesaid legal questions, I find it convenient to reproduce below section 9 of the Guardians and Wards Act, 1890, whereby territorial jurisdiction of the Guardian Judge touching custody of the minor is defined: - "9. Court having jurisdiction to entertain application.-(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides."
' It is manifest from the above quoted provisions of law that the Guardian Judge of a particular area before whom the application for custody of the minor is laid must be possessed with territorial jurisdiction before a judgment is given on merits of counter claims of the parties. Without determining the question of jurisdiction and without having been possessed with such jurisdiction a judgment rendered by such Court would be a nullity in the eyes of law. First of all, the learned Guardian Judge at Lahore was required to decide on the basis of assertions set up in the petition and the documents annexed therewith as to whether or not he had acquired jurisdiction to decide the point in issue. Ordinary residence of the minor, which is determining factor for territorial jurisdiction of the Court, is to be determined first as and when an application for custody of the minor has been instituted and entertained. Here, I must say that the learned trial Judge issued notice to petitioner No,l in routine without examining the petition, particularly para No,5, regarding territorial jurisdiction of the Court.
6. Now I propose to determine as to whether there is any controversy with regard to the place where the minor ordinarily resides. A combined examination of the pleadings of parties and the documents produced by them would show that it is not in dispute that the minor has been residing with her mother at Rawalpindi since 19-12-2007. My this conclusion is based on the following grounds:- ' Mirza Farhan Rubbani, respondent No, 1 filed petition under section 25 of the Guardians and Wards Act on 14-1-2008 before the Guardian Judge, Lahore, wherein address of his wife and minor child had been given as Phase II-S, Street No,2, House No,170, Behria Town, Rawalpindi.
(a) The second address of the petitioner herein had been given as Mrs. Aliya Farhan Rubbani, Assistant Manager, Telephone Foundation Complex, Street No,7 Mauve Area G-9/4, Islamabad.
(b) In paragraph No,4 of the petition, respondent No,l asserted that on 19-12-2007, petitioner No, 1 along with petitioner No,2 left his house in the company of her mother Mumtaz Begum and did not return thereafter. Undisputedly, the mother of petitioner No,l has been residing at Rawalpindi since marriage between the parties.
(c) The process issued by the Guardian Judge, Lahore in the petition had been served on petitioner No,l at Rawalpindi on the aforesaid address.
(d) Nikah of the parties had been performed and registered at Rawalpindi vide above said Nikah Nama.
(e) In his suit for restitution of conjugal rights filed on 14-1-2008 before the learned Judge Family Court at Lahore, respondent No,l asserted that petitioner No,l left Lahore on 19-12-2007 for Rawalpindi and did not return his home thereafter. In the suit the address of the petitioner had been given in line with that of the petition under section 25 of the Guardians and Wards Act.
(f) In paragraph No,6 of the petition under section 25 of the Act, respondent No, 1 did not claim that the minor resided within territorial jurisdiction of the Court at Lahore. He unsuccessfully attempted to justify institution of his petition before the Court at Lahore with an assertion that previously petitioner No,l had been residing at Lahore and that she left Lahore for the house of her parents before institution of the application, therefore, the Court at Lahore was possessed with territorial jurisdiction.
' In view of abovesaid state of record it is/ was not in dispute that since 19-12-2007 petitioner No,l along with her minor daughter has been residing at Rawalpindi. The mere fact that petitioner No,l and the minor left Lahore for Rawalpindi on 19-12-2007 would not confer territorial jurisdiction upon the Guardian Judge, Lahore to entertain the petition for custody of the minor on 14-1-2008. Had the learned Guardian Judge examined the petition, particularly its paragraph No,6, he would have returned the petition to respondent No,l on the date of its institution i.e, 14-1-2008. Here I must say that the learned Judge Guardian Court Lahore contributed towards miseries of the petitioner by entertaining the petition mechanically and without application of judicial and legal mind. He returned the petition for want of territorial jurisdiction on 8-7-2008, which should have been returned on 14-1-2008. Here I must say that the learned Guardian Judge kept pending the petition w.e.f 14-1-2008 to 7-7-2008 unnecessarily and without jurisdiction.
7. The learned Appellate Court remanded the controversy of territorial jurisdiction to the trial Court for fresh decision after recording evidence, without taking into consideration the admitted facts regarding the point in issue. The remand order, now under challenge, being offensive to Article 113 of Qanun-i- Shahadat Order, 1984 cannot be allowed to hold the field. The above quoted Article clearly lays down that no fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. At the cost of repetition, it is noteworthy that in the case in hand it was/is not in dispute or disputable that since 19-12-2007 the minor has been residing with her mother and maternal grand mother at Rawalpindi.
' There was no legal justification for the learned Appellate Court to remand the case asking the petitioner to prove the above said admitted fact with evidence. It would not be out of place to mention here that it was/is not the case of respondent No, 1 that on the date of institution of his petition, the minor resided within territorial jurisdiction of the Guardian Judge, Lahore. He asserted in para No,6 of the petition that the Guardian Judge Lahore was possessed with territorial jurisdiction on 14-1-2008 as the petitioner No,l and the minor had left Lahore for Rawalpindi on 19- 12-2007. This assertion, even if believed in toto, does not confer territorial jurisdiction on the Guardian Judge, Lahore in terms of section 9 of the Guardians and Wards Act.
8. Learned counsel for respondent No,l has vehemently argued that the question as to whether the minor ordinarily resides at Lahore or Rawalpindi is a question of fact and its decision must depend on the evidence produced by the parties. It has further been argued that the learned appellate Court rightly remanded the case to the trial Court affording an opportunity to both the sides to adduce evidence in support of their respective claims with regard to the place of residence of the minor. This argument does not hold weight. No doubt, residence of the minor at relevant time is question of fact. It is also true that the question of fact cannot be answered without recording evidence. But in the case in hand, the above question of fact is not in dispute. It is an admitted fact that since 19-12-2007 the minor has been residing with her mother at Rawalpindi. Hence, there was no legal and factual justification to ask the petitioner to prove and admitted fact.
9. Learned counsel for respondent No,l lastly argued that since desertion, petitioner No,l has not been residing permanently at any place, therefore, the last place of her residence i.e, Lahore would be deemed as ordinary residence of the minor. This argument is also against the record. It is reshaped version of respondent No,l that' after desertion, petitioner No,l along with her minor daughter have been roaming about. At the cost of repetition it is noteworthy that the respondent admitted in his suit for restitution of conjugal rights and the petition in hand that since 19-12-2007 the petitioners have been residing at Rawalpindi. Furthermore, the respondent cannot take any stance over and above the pleadings.
10. For what has been stated above, it is not difficult to conclude that the learned Guardian Judge, Lahore is not possessed with territorial jurisdiction to decide the question of custody of the minor residing at Rawalpindi with her mother since 19-12-2007. The learned Appellate Court erred in law while remanding the case with a direction to the petitioner to prove the admitted fact with evidence. The impugned remanding order is, therefore, illegal and without lawful authority.
Resultantly, this petition is accepted and the impugned order is set aside with an observation that only the Guardian Judge at Rawalpindi is possessed with territorial jurisdiction in terms of section 9 of the Guardians and Wards Act, 1890 to decide the matter of custody of the minor.
11. The parties are left to bear their own costs.