' SYED MUHAMMAD FAROOQ SHAH, J.---Through this petition the impugned order dated 3.3.2016 passed by the learned Additional District Judge V of Karachi South has been challenged mainly on the ground that the appellate Court being Coram non-judice entertained the appeal under Section 14(3) of West Pakistan Family Courts Act, 1964, which provides that "no appeal of revision shall lie against an interim order passed by a Family Court", and since the order under section 12 Guardians and Wards Act, 1890, passed by the learned Vth Civil and Family Judge, Karachi (South) on 09.10.2015 was relating to interim custody/meeting for betterment and welfare of the minors, therefore, the appellate Court has wrongly entertained the appeal and passed the impugned judgment dated 3.3.2016 in Family Appeal No,56/2016. It is next averred that even on merits the appellate Court has failed to appreciate the transfer of minor children from one school to another with reason that other school is being run by father of the minors/respondent No, 2.
2. Before proceeding further and to dilate upon the worthy arguments advanced by the learned counsel for the parties, it shall be advantageous to reproduce herein-below penultimate paragraph of the order passed by learned trial Court under Section 12 of G&W Act, 1890:-- I have given careful consideration to the submissions of both the respective counsel and have also gone through the material available in file. It is matter of record that both the parties have filed lengthy pleadings containing different assertions and rebuttals require deeper appreciation at the time of evidence or final judgment, it is further matter of record that applicant under section 12 G&W Act has sought interim directions from this court for production of minor namely Rania Mirza and Saif Ali Mirza before this court as interim relief/meetings, pending the final adjudication, hence I allow this application to extent of meeting of the minors in court. As it is settled law that welfare of minors is a prime consideration which is still sub- judice, requires evidence for deciding factors relevant to interest and welfare of the minors, however as per NADRA record baby Rania Mirza at present is aged about 8 years while Saif Ali Mirza is aged about four years, both minors are at tender age therefor at this stage their first school has already been changed therefore once again by changing of interim custody of minors as prayed by the applicant would also be against the welfare of the minors, hence the prayer of father to extent of interim custody is declined accordingly. With direction to the respondent/mother to produce both minors before the court for meeting of two hours only 10.00 am to 12.00 pm from coming Saturday on 14.11.2015 to on disposal of main application in meeting hall/court, applicant is directed to pay the convince allowance of minors at @ of Rs,1000/= on each meeting, it is further pointed out that during meeting no family member of the respondent side would be in the meeting or be allowed if permitted by the father, meeting would be held under supervision of bailiff of court. Announced in open court on this 9th day of October, 2015."
3. The appellate Court has drawn two material points for determination. One is regarding entitlement of the appellant/father for meeting with children for more time than the ones already fixed by the learned Guardian Judge and second point as framed by the appellate Court is that whether the change of minors school by respondent is detrimental to their welfare and wellbeing.
Both these points were answered in affirmative. In respect of point No, 1, the appellate Court has modified the arrangement of meeting timings with direction that father/respondent No, 2 is allowed to have custody of minors on every second Saturday of month at 7.00 p.m. And he will return the custody of the minors on next day i,e., Sunday by 12.00 Noon, so as to have quality of time with the minors. Insofar as point No, 2 is concerned, though it was answered in the affirmative with observation that being natural guardian the father will not only look after proper studies of the minors in his school but their company in the school will also monitor their behavior; consequently, the father was directed to make necessary Arrangement with the present school so as to ensure attendance of the minors in their previous school i,e., "International School" within fifteen days period. However, the learned appellate Court while deciding point No 3 directed the learned guardian judge to ensure the compliance of the order of appellate Court being an ad-interim order in nature; the learned Guardian Judge was left at option to see the welfare of the minors to continue with such arrangement or not then he can interfere.
4. Arguments heard record perused.
5. A perusal of record reflects that father of the minors i,e., daughter namely Rania Mirza born on 16.12.2006 and a son namely Saif Ali Mirza was born on 3.8.2011. Father/Respondent No, 02 instituted a & W Application No, 981/11 under section 25 of the G&W Act, 1890 against the respondent Maliha Hussain, i,e., mother of the aforesaid minors with a prayer to grant him custody of both children as their welfare lies with him and respondent/mother be restrained permanently from removing the custody of the minors from the jurisdiction of this Court. It appears that for the sake of interim arrangement, looking to the A welfare and betterment of the minors a detailed order was passed by the trial court, reproduced hereinabove, which reflects that the said order was passed without deeper appreciation of evidence or material brought on record with observation that since the minors are getting education in the present school and once again change of their school and interim custody would be against the welfare of the minors, hence the prayer of father to the extent of interim custody was declined with direction to the mother for meeting of minors for two hours after alternate Saturday.
6. I have been assisted by the learned counsel for the parties on the preliminary objections raised by the petitioner in respect of non-maintainability of appeal under section 14(3) of West Pakistan Family Courts Act, 1964. It is an admitted fact that interlocutory/interim order passed under section 12 of G&W Act is an order in which no final verdict is pronounced as an ancillary order has been passed, keeping in view the welfare and betterment of the minors for certain periods with the intention to keep the same operative till final decision is passed in the pending matter, therefore, the relevant legislature has not provided remedy of appeal, revision or review against an interim order. The Hon'ble Apex Court in the case of Syed Saghir Ahmed v. Province of Sindh through Chief Secretary S&JD Karachi and others (1996 SCM R 1165), held that "the constitutional jurisdiction, exercise of statute excluding a right of appeal from the interim order could not be bypassed by bringing under attack such interim orders in constitutional jurisdiction. Party affected has to wait till it is matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such order". In the case of Mohterma Benazir Bhutto, MNA and leader of the opposition, Bilawal House, Karachi v. The State (1991 SCM R 1447), the Hon'ble Supreme Court held that the orders passed at the interlocutory stages should not be brought to the higher courts to obtain fragmentary decision, as it tends to harm the advancement of fair play and justice, curtailing remedies available under the law, even reducing the right of appeal. In this respect the Hon'ble Court has referred the case of Mushtaq Hussain Bukhari v. The State (1991 SCM R 2136). In all these citations a principle has been laid down that interference at the interlocutory stage should be avoided by the High Courts, under its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; more particularly, when the legislature has not provided any appeal against interlocutory orders in the relevant statutes. Now if the father of the wards/respondent No, 2 found the interlocutory order to be excessive or if the orders suffers from some illegality or irregularity or it is arbitrary, fanciful, void ab-initio, without jurisdiction or if the same has attained the status of a final order then the constitutional jurisdiction of the High Court under Article 199 may be invoked, but in the instant case all mentioned legal grounds are not attracting in the peculiar facts and circumstances of the present case.
7. Mr. Arshad Tayyabali, while placing reliance on the case of Pakcom and others v. Federation of Pakistan and another reported as PLD 2011 Supreme Court 44, submitted that since the legal plea in respect of Section 14(3) West Pakistan Family Courts Act, 1964 was not raised before the Appellate Court, therefore, the same cannot be raised before this Court as well. Paragraph-23 of the cited judgment reads in the following manner:-- "23. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court has portraited altogether a different case and raised various new points which were never agitated either before the Authority or learned High Court such as the scope and effect of Section 12(3) of the Act qua its bearing on the meaning of the word 'fees' and whether the amount due can be validly charged, which is confiscatory and ex-proprietary, the effect of exercise of authority by the PTA on the basis of policy directive of the Federal Government regarding the renewal of license which were ultra vires of the Act, discriminatory in nature of Mobile and Cellular Police, 2004, no estoppel against law, liability to pay the license fee without grant of a frequency range of 10+10 MHz and 1800 MHz band, reduction of frequency allocated to Pakcom from 10+10 MHz to 7.38 +7.38 MHz. The above mentioned points were never raised before learned High Court and the order dated 15.01.2008 passed by the learned High Court (Rawlpindi Bench, Rawalpindi), appears to be a consenting order. It is highly doubtful that the petitioner can agitate the same grievance through the fresh round of litigation in view of their undertaking to make payment as per directions ultimately given by the Authority, which exercise was honestly undertaken by the Authority as is evident from the order dated 4.03.2008. It is worth mentioning that the order of the Authority dated 04.03.2008 is in full conformity with the consent order dated 15.01.2008 which is well discussed and well based order wherein all the factual and legal questions raised by the petitioner in their reply to show-cause notice dated 1.12.2006 have been comprehensively dealt with. Similarly, judgment of Islamabad High Court dated 06.04.2009 is indicative of the fact that all the contentions raised by the Petitioner have been dilated upon and decided in a comprehensive manner. These orders are, therefore, not open to interference. It is well settled proposition of law that the plea not raised before High Court during hearing of appeal cannot be agitated before Supreme Court".
' Moreso, paragraph-24 of the said judgment reads in the beginning that "in first round of litigation the financial liability was never questioned either before the Authority or learned High Court (Rawalpindi Bench)". The factual controversy was involved in the cited ruling, which cannot be raised or agitated at the later stage before the higher forum, however, in the present case, specific legal point is involved, which can be raised at any stage of the proceedings. Since the impugned order passed by the appellate Court is without jurisdiction, coram non judice, wherein the factual controversies have been resolved by granting an ad-interim relief without material evidence as admittedly the trial court has not delivered final verdict/decision, which was an interim order and the said order could have not been chalfaned before the appellate Court.
8. Crux of the aforementioned discussion is that the order in the case in hand, so passed by the learned judge of G&W Court is neither void ab-initio or without jurisdiction which is also not a final order and being an interim order appeal in terms of section 14(3) does not lie; more particularly, the interim order passed by the learned trial Judge appears to be well reasoned and speaking one.
In such view of the matter, the impugned order passed by the appellate Court is without jurisdiction, void ab-initio, is not maintainable, therefore, set-aside. However, the trial Court is directed to expedite and conclude the trial preferably within a period of three months.