1. DORAB PATEL, J.-The respondent's husband died at Kalabagh on the 27th of March, 1975 and the respondent was living with him at the time of his death with her three minor children. However, after her husband's death, the appellant took minor children away with him to Karachi, therefore, the respondent filed a suit against the appellant in the Court of the Civil Judge, Mianwali, under the Guardians and Wards Act, 1890, for the custody of her minor children. The appellant contested the suit on the ground of jurisdiction, as the children were in Karachi, and on the further ground that his brother had divorced the respondent before his death. He also stated that the respondent was in any event not entitled to the custody of her children, because she was not financially in a position to maintain them. The learned Judge had no hesitation in rejecting the appellant's frivolous objection to 'the jurisdiction. Of the Court, and he also held that the appellant had failed to prove that the respondent had been divorced b her husband before his death. Therefore, as the poverty of the respondent was no ground for denying her custody of her children, by his judgment dated 10-6-1969, he allowed the respondent's application.
2. The appellant challenged this judgment in an appeal in the Lahore High Court and in a well- considered judgment dated 10-1-1980 Munawwar Elahee Rana, J., dismissed the appeal, Nit as one of the respondent's children had meanwhile become a major, the respondent's claim was upheld only with regard to the two younger children. The appellant, therefore, filed a petition for leave and leave was granted despite the concurrent findings against the appellant. However, the appeal was directed to be heard as soon as it was ready.
3. Now, . Although the respondent was successful in both the Courts, she was not able to obtain the custody of her children, because of the dilatory tactics of the appellant which continued in this Court, and emboldened by his success in outwitting the judgments of the Courts, the appellant had sought an adjournment again yesterday when the appeal came up for hearing before us. The request, which seemed innocuous, because it was pressed on pleas of illness and death of relations, was opposed by Mr. Almas A.I on grounds which shocked us. Mr. Almas A.I stated that he bad been informed that both the minor girls had been married off by the appellant. But, he admitted that the older of the two girls, Kulsoom Jahan, was just over 15 years old. However, as the other daughter, Miss Sarwar, is not yet fifteen, we were shocked to learn that she had been married off.
4. Mr. Bhatti; however, stated on instructions that Miss Sarwar had married of her own free will. Even if this be true, the appellant has filed this appeal in order to become Miss Sarwar's guardian and as Miss Sarwar was staying with him, his conduct borders on contempt. And, but for the fact that Miss Sarwar's interests might suffer, we would have taken appropriate action against the appellant. We will not, least her future be jeopardised, and for the same reason, we do not wish to make any observa--tions on Mr. Almas A.I's submission that Miss Sarwar's marriage is not legal, therefore, we would turn to Mr. Almas A.I's submission that this appeal must be dismissed, as the appellant's first appeal in the Lahore High Court was incompetent, because it was hit by section 14 of the West Pakistan Family Courts Act, 1964 (hereinafter called the said Act). On the other hand, Mr. Bhatti relied on section 25 of the said Act, and Mr. Almas A.I's submission is supported by judgments of the Sind & Baluchistan High Court in Mst. Zaibun Nisa v. Muhammad Muzammil (PLD 1972 Kar 440) and in Muhammad Ismail v. Mst. Zubeida Khatoon (PLD 1973 Kar. 503whilst Mr. Bhatti's submission is supported by judgments reported in Muhammad Ismail v. Fazal Ahmad (PLD 1969 Lab. 834)in Juma Khan v. Mst. Gul Ferosha (PLD 1972 Pesh. 1), in Mst. Parveen v. Kh. Muhammad Asghar (PLD 1975 Lah. 334) and in Manzoor Hussain v. District Judge, Multan (PLD 1977 Lab. 911).
5. There is no pronouncement by this Court on the question under consideration, because the judgment in Khizar Hayat Tiwana v. Zalnab Begum and others (PLD 1967 SC 402), is not only distinguishable on the facts, but the Court also did not have any occasion to examine the provisions of section 14 or of section 25 of the said Act. Therefore, we would first examine these sections.
6. Section 14 reads :- "14. Appeal.-(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable----
(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and
(b) to the District Court, in any other case.
7. (2).:'---------------.
8. There is no ambiguity about this section, unless we ignore the elementary fact that there have always been two tiers of Courts in the District and Sessions Courts of the country. The Civil Judges form the lower tier of the District Courts, whilst the District Judges and the Additional District Judges constitute the upper tier of the District Courts. There is a similar hierarchy of Courts on the criminal side. And, appeals from the judgments of District Judges and of Additional District Judges have always been filed in the High Courts, whilst, subject to the question of pecuniary jurisdiction, appeals from the lower tier of the District Courts, namely, the Civil Judges, have been filed in the District Courts. Now, there can be no question of the valuation of the dispute in guardianship matters, but the District Judges are empowered, under the rules framed under the said Act, to transfer guardianship cases to Civil Judges. And, when a Civil Judge acts as the Guardian Judge, clause (b) of subsection (1) of section 14 prescribes that an appeal against his order lies to the District Court. This is in accordance with the law of generations and therefore, the abstract proposition that there cannot be an appeal within a Court has no relevance to our Jurisprudence.
9. As section 14 is so clear, at first sight, it is difficult to understand the contention of the respondent that he could have challenged the Guardian Judge's order in the instant case only in the Lahore High Court. But, according to him, an appeal against an order of the Guardian Judge could be filed, in view of section.47 of the Guardians and Wards Act, only in a High Court, and, therefore, as section 25 of the said Act superseded in terms the provisions of section 14, his appeal was validly filed.
10. Section 25 reads :- "Family Court deemed to be a District Court for purposes of Guardians and Wards Act, 1890.-A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act shall, in dealing with matters specified in that Act, follow the procedure prescribed in that Act."
11. The section does not, in terms, repeal section 14 nor does it refer to the litigants' right of appeal.
12. Therefore, the respondent's contention assumes that section 25 amounts to an implied repeal of section 14 in all guardianship matters. Now, if that had been the intention of the Legislature, it would have enacted accordingly, because repeals are not to be lightly implied. Secondly, even on the footing that a statute has to be read as a whole, what does section 25 enact. It only prescribes that the procedure of the Guardian and Wards Act shall be followed by the Guardian Judge and not the procedure contained in the said Act. Therefore, we would explain her that the mode of trial prescribed in the said Act contains sweeping departure from the mode of trials in suits under the Civil Procedure Code. As the novel procedure contained in the said Act has been examined in detail in Mst. Zaibun Nisa's case, it is not necessary to recapitulate the difference between the mode of trial under the said Act and the mode of trial in a suit under the Civil Procedure Code and the Evidence Act. And, the mode of trial laid down in the said Act is expressly excluded by section
25. Secondly, as according to this section; the Guardian Judge has to "follow the procedure prescribed" in the Guardians and Wards Act, it would be sufficient to observe that whilst this Act does not contain elaborate provisions for the conduct of a trial in guardianship cases, it contains some provisions for regulating such trials, and the effect of the words quoted is that these provisions have to be followed by Family Courts, whenever they hear guardianship cases. But the procedure prescribed for hearing a case under the Guardians and Wards Act has nothing to do with the question of the forum in which an order this Act can be challenged by the aggrieved party.
13. Therefore, in our humble opinion, section 47 of the Guardians and Ward Act is irrelevant to the construction of section 25, because this section has been enacted only in order to regulate the' procedure of the trial before the Family Court. And, this section neither states nor implies that it is intended to govern the rights of parties after the Family Court has become functus officio by deciding the case before it.
14. However, according to Mr. Bhatti, the words in section 25 "the procedure prescribed in that Act" were intended to include the right of appeal conferred by that Act, namely the Guardians and Wards Act. But the obligation imposed by section 25 to follow the procedure prescribed in the Guardians and Wards Act is an obligation imposed on the Court, and there is nothing in the section to support the view that it was intended to regulate the rights of the parties after the Family Courts had become functuss officio.Secondly, on the footing that the word "procedure" is ambiguous, we have to follow the construction placed on it by the superior Courts on the principle that the Legislature is aware of the judgments of the superior Courts. And, in the Colonial Sugar Refining Company Limited v. Irving (1905 A C 369the Privy Council observed that the proposition that a right of appeal is not a matter of procedure "does not admit of doubt". This dictum has been followed in innumerable cases by the Courts of the sub-continent and by our Courts and, therefore, on the footing that the word "procedure" in section 25 of the said Act is ambiguous, the only meaning that can be placed on it is the meaning by the Privy Council. And, it was for these reasons that the Sind & Baluchistan High Court took the view that an appeal against an order of a Guardian Judge, who is not a District Judge or an Additional District Judge, lies to the District Court under clause (b) of sub-, section (1) of section 14.
15. We now turn to the other view and we would begin with the judgment of the Division Bench in Muhammad Ismail's case. The learned Judges observed at page 840 :- "Ordinarily the word 'procedure' connotes details of the mode of trial to be adopted in a particular Court and would not include the provisions relating to appeal."
16. This dictum is in accordance with the view taken by the Sind & Baluchistan High Court. But, after holding that the word "procedure" did not ordinarily include "the provisions relating the appeal", the learned Judges went on to hold that the word "procedure" in section 25 of the said Act could not be given its ordinary meaning because if the ordinary meaning of the word was followed it would lead to anomalous consequences. And, as to how these anomalous consequences would arise, the learned Judges observed :--- "Since under section 25 of Act the Family Court has to be equated with a District Court for the purposes of cases under the Guardians and Wards Act, it appears to us that sub-clause (b) of subsection (1) of section 14 would be straightaway excluded inasmuch as the order passed by the Family Court in a case of this kind would be only in its capacity as a District Court and no Court can hear an appeal against its own order or from that of a concurrent jurisdiction. Likewise, clause (a) would also be inapplicable inasmuch as it could be invoked only in a case where the Family Court is 'presided over by a District Judge, an Additional District Judge, or a person notified by Government to be of the rank and of the status of a District Judge or an Additional District Judge. It appears to us that where a Civil Judge, Ist Class, functions as a Family Court while dealing with a case relating to the custody or guardianship of a minor, the rank and status of an Additional District Judge must be conferred on him, by means of a notification in order to make his order appealable under clause (a) of subsection (1) of section 14. The learned counsel for the appellant could not place any such notification on the record. It would thus appear that the order in question or any such order would not at all be amenable to an appeal. Obviously nothing could be further from the intention of the Legislature than to impart afinality of such an order of the Family Court which cannot be deemed to have become sacrosanct."
17. With all respect to the learned Judges, these observations overlook the fact that the Family Court has been made a District Court only by an express deeming provision. Secondly, and this is much more important, for the reasons which we have given, we are unable to agree with the assumption of the learned Judges that an appeal in the District Court could not lie against the order of the Family Judge, because "no Court can hear an appeal against its own order or from that of a concurrent jurisdiction." But, it was only because the learned Judges assumed that the order of the Guardian Judge could not be challenged in an appeal in the District Court that they went on to hold that the ordinary meaning of the word "procedure" had to be modified in order to confer a right of appeal in favour of the litigant who was unsuccessful bell ore the Family Court, therefore, with respect, as the assumption thus made by the learned Judges was erroneous, we are unable to agree with the judgment of the learned Judges.
18. The next judgment which supports the appellant's claim is that of a learned Single Judge of the Peshawar High Court in Jumma Khan's case. In this judgment, the learned Single Judge approved of the proposition laid down by the Indian Supreme Court in Garikapali Veeraya v. N. Subbiah Choudhury and others (PLD 1957 SC (Ind.) 448that an appeal was a vested right and not a matter of procedure, but the learned Judge nonetheless held that the word "procedure" in section 25 of the said Act included the right of appeal. With respect, the reasons which led the learned Judge to reach this conclusion are not clear, but as he has, before reaching this conclusion, relied upon a judgment of this Court in F. A. Khan v. The Government of Pakistan PLD 1964 SC 250) we may point out that Kaikaus, J., observed in this judgment that original and appellate proceedings are only steps "in one proceeding". Now, there can be no doubt that for some purposes an appeal may be treated as a continua--petition of the original suit or application, but, even if we assume that an appeal is a continuation of the suit or application filed in the Court of the first instance, this does not lead to the conclusion that the right of appeal is a matter of procedure. And, therefore, we are unable to agree with the view taken in Jumma Khan's case.
19. We now turn to the judgment of the Lahore High Court in Mst. Parveen v. Khawaja Muhammad Asghar. The learned Single Judge of the Lahore High Court, who heard this case, was rightly of the view that he was bound by Muhammad Ismail's case and that the judgments of the Sind & Baluchistan High Court were only of persuasive value. But, although the learned Single Judge purported to follow Muhammad Ismail's case, as we pointed out, in Muhammad Ismail's case the learned Judges were of the view that the word "procedure" did not ordinarily include "the provisions relating to appeal" and, therefore, they had modified its ordinary meaning. But, the learned Single Judge, who decided Mst. Parveen's case, did not hold that the word "procedure" would not ordinarily include "the provisions relating to appeal." On the contrary he held that the word "procedure" included provisions relating to appeals, because according to him this was the meaning placed on the word by writers of jurisprudence, and he also relied on judgments of/ the Indian Supreme Court. With due respect, whilst the view of writers l of jurisprudence may sometimes be relevant to the construction of words in a statute, what is much more relevant to the instant case is the construction placed on the word "procedure" by the Privy Council in the Colonial Sugar Refining Company's case, because the Legislature is presumed to be aware of the judgments of the superior Courts. Next, as to the judgments of the Indian Supreme Court, the statutory and constitutional provisions construed in those cases were not only not in part materia with section 25 of the said Act, but there was also no similarity between the provisions construed by the Indian Supreme Court and section 25 of the said Act. And, on the contrary, we are satisfied that section 25 has been enacted only in order to regulate the mode of the trial before the Family Judge, therefore, it would defeat the f intention of the Legislature if we were to enlarge the ordinary mean--ing of the word "procedure" so as to include "the provisions relating to appeal". Therefore we are unable to agree with the judgment in Mst. Parveen's case.
20. The only other judgment which supports the appellant's case is the judgment of a Division of the Lahore High Court in Manzoor Hussain's case. But, as this judgment merely follows the view taken in Muhammad Ismail's case and in Mst. Parveen's case, we are unable to agree with it and, we hold that the correct law was laid down by the Sind & Baluchistan High Court in Mst. Zaibun Nisa v.
21. Muhammad Muzammil and in Muhammad Ismail v. Mst. Zubeida Khatoon. The appeal, therefore, fails and is dismissed.
22. The only question which remains for examination is that of costs, and Mr. Bhatti submitted that the objection to the maintainability of the appellant's appeal in the High Court had not been taken before the High Court. The submission appears to be correct, but a respondent is entitled to resist an appeal on all grounds available to him under the law, and, further we are shocked by the appellant's conduct, therefore, the appeal is dismissed with costs.