1. ' SAHIB KHAN, C.J.---Through this civil first appeal appellants/respondents have challenged the propriety of the impugned judgment/order dated 14-09-2015 passed by the learned Guardian/ District Judge Astore in Civil Miscellaneous No, 17/2015 whereby he while accepting the application filed under section 39 of Wards Act, 1890, set aside the order dated 20-09-2014 passed by his predecessor in office and by restoring the original Civil Miscellaneous No, 95/2014 in its original number, directed the parties to appear before the Court for further proceedings on the application, Civil Miscellaneous No, 95/2014. In the meanwhile he further ordered that the custody of the minors will be intact with their grandfather till the disposal of the matter.
2. ' I have heard the learned counsel for the parties at length and have gone through the relevant provisions of law and perused the record of the case placed on file with the able assistance of the learned counsel for the parties.
3. ' The learned counsel appearing on behalf of the appellants/ respondents argued that the trial/ Guardian Judge has violated the procedure laid down in The Guardians and Wards Act, 1890, whereby an appeal against issuance of Guardianship Certificate lies before the High Court under section 47 of the Act, 1890. The Guardian Judge on the application of the appellants/ respondents which was filed after lapse of considerable time have reversed the orders of the same Court without authority as such order can be reversed only by the appellate Court. The Guardian Judge had no jurisdiction under section 39 of the Act, 1890 to reverse the final orders regarding issuance of Guardianship Certificate in favour of appellants/ respondents. That the application under section 39 was filed before the Court after considerable delay and the respondent/ petitioner being in knowledge about the order of the Court with regard to the issuance of Guardianship Certificate in favour of appellants/ respondents did not move to the Court of competent jurisdiction for reversal of the said order. Thus the application under section 39 being time barred is not entertainable nor any relief could be granted in favour of respondent/petitioners. He prayed for setting aside the impugned judgment/ order dated 14-09-2015 and restoration of order dated 20- 09-2014.
4. ' On the other hand the learned counsel for the, respondents argued that.... a. The application filed under section 39 was well within the ambit and consonance of the provisions provided under section 39(E) and section 11(A) of The Guardians and Wards Act, 1890. b. That the order of the Court dated 20-09-2014 was totally based on ignorance of law whereby the Guardian Judge did not bother to issue any notice to the respondent already named in the petition and her address was also given in the petition for guardianship. c. That the Guardian Judge did not follow the procedure laid down under law for the service of summons to the parties. d. That the Guardian Judge in hurry directly ordered for publication in the loc.Al newspaper and all the procedures were concluded within three days which is unacceptable for disposal of matters by the judicial forums. e. That the Guardian Judge through the impugned judgment/ order dated 14-09-2015 has rightly appreciated the law and procedure provided for the purpose and the order is in no way reversible.
5. According to the record placed before me it is evident that an application for issuance of Guardianship Certificate was filed by the present appellant/grandfather of the minors namely Hassan Mehdi and Fatima Batool. In the relevant column of application respondent Asia Brohi/mother is shown alive and her residential address is given at Karachi. On 17-09-2014 the Judge ordered for issuance of notices and case was fixed for 20-09-2014 i.e, within three days, but the record shows that Mst. Asia was shown as respondent 'and no specific notice was issued for her appearance. However a publication for general information was required on the same day and date i.e, 17-09-2014. Resultantly the publication was published in daily newspaper K2 dated 18-09- 2014. It is admitted that neither the notice was issued against the respondent nor any publication was made in the national newspapers throughout the country.
6. ' The learned counsel for appellants/ respondents forcefully argued that an appeal against the order dated 20-09-2014 as laid down under section 47 of the Act, 1890 lies for cancellation of the Guardianship Certificate issued on 20-09-2014 but the respondent did not bother to file an appeal before the Court of appeal within prescribed time despite of being in knowledge hence, application under section 39 of the Act is not maintainable. In his argument the learned counsel appearing on behalf of respondent/petitioner referred to section 11(A) and section 39(E) of the Act, 1890.
7. ' Vide section 11(a) the legislature have held it mandatory with the words that:-- "11. Procedure on admission of application. If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof and cause notice of the application and of the date fixed for the hearing".
8. ' It is therefore binding on the Court to cause notice to the opposite party if the Court is satisfied that there is/are grounds for hearing of application filed for issuance of Guardianship Certificate.
9. Vide subsection (a) of section 11 it has been laid down that:-- "11(a) to be served in the manner directed in the Code of Civil Procedure 1908 (Act V of 1908) on....
(1) the parents of the minor if they are residing in [Pakistan]"
10. According to this provision the Court is also duty bound to cause notice and its service shall be directed strictly in accordance with the provisions of Order V of C.P.C. Wherein different stages and methods have been laid down for procuring the service of a person and its last and final stage is publication in a local newspaper.
11. The learned Guardian Judge did not bother to issue notice against the surviving mother of the minors, thus there is no ambiguity that can arise in the mind of a common marl that the real mother of the minors was not properly served with regard the petition filed in the Court for grant of Guardianship Certificate regarding her minor children in favour of their grandfather.
12. ' The learned counsel for appellants argued on maintainability of the application filed under section 39 of the Act, 1890. In his reply the learned counsel for respondent cited section 39(E) of the Act which reads:- "39. Removal of guardian. The Court may, on the application of any person interested, or on its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes namely:--
(e) For contumacious disregard of any provision of this Act or any order of the Court;"
13. Vide this provision the legislature has enacted that any person interested or the Court on its own motion remove a Guardian declared by the Court or any guardian appointed by Will or other instrument for any of the causes given in the above reproduced provision. In sub-clause (e) the legislature have laid down that any contumacious disregard of any provision of this Act or of any order of the Court, as have been stated supra, the whole proceedings especially with regard to issuance of notice and service thereon, the Court issuing certificate did not follow the mandatory provision of section 11. (A) read with Order V of C.P.C. which is total disregard of the provision of the Act, 1890 and violation of the provision laid down therein, which caused serious injury to a party really interested being the mother of the wards and therefore, the same act of the Court was within the ambit of provision of section 39(e) through which the Court had jurisdiction to remove the guardian appointed by the Court itself.
14. ' The learned counsel for the appellant forcefully argued that the respondent was well aware about the custody of the minors. He referred to proceedings in a habeas corpus application before Sessions Judge at. Karachi. Might be that so but the proceeding carried by the Guardian Judge Astore in Civil Miscellaneous No, 95/2014 do not reflect any proper notices nor sufficient service thereon upon the parties shown in the petition on the addresses given therein, hence any other proceeding if carried in other Courts including the criminal proceeding with regard to habeas corpus do not affect the requirements provided for issuance of Guardianship Certificate.
15. The learned, Guardian Judge vide his order dated 14-09-2015 very carefully attended the matter in true sense and spirit of the law relevant in the matter and never calls for any interference which is accordingly upheld by dismissing this appeal. Parties are directed to appear before the Guardian Judge on (sic) . File.