' The petitioner, a former husband of Mst. Nasim A k respondent No, 1, has directed this constitutional petition under Article 9 of the Provisional Constitution Order, 1981, against the judgment of the Guardian Judge, Lahore, dated 25-10-1982, and the judgment of the Additional District Judge, Lahore dated 31-10-1982, whereby, preliminary issue regarding territorial jurisdiction of the Guardian Judge, Lahore was decided against him.
2. The petitioner and respondent were married and had an issue, namely, Sohail Zafar Ahmad. It is stated in the writ petition that respondent No, 1 filed an application under section 7 of the Guardians and Wards Act (VIII of 1890) (hereinafter called the Act), for the custody of her minor child. Application under section 12 of the Act for temporary custody of the minor was also filed. The petitioner contested the application and raised preliminary objection as to the territorial jurisdiction of the Guardian Judge at Lahore. The learned Guardian Judge, by order dated 21-9- 1982, framed a preliminary issue, "Whether the Court at Lahore has territorial jurisdiction to try the petition". Respondent No, 1 led documentary evidence and also appeared as her own witness as P.
W.
1. Uncertified copy of the statement is at page 23 of the writ petition. The petitioner also appeared as his own witness as D. W. 1 (page 25 of the writ petition). The learned Guardian Judge, in view of the evidence before him, by order dated 25-10-1982 (uncertified copy is at Annexure "A") decided this issue against the petitioner and in favour of respondent No,
1. The appeal of the petitioner was also dismissed by the learned Additional District Judge, Lahore, by order dated 31-10-1982 (uncertified copy is at Annexure "B").
3. Learned counsel for the petitioner contends that the courts below have acted illegally in the exercise of their jurisdiction to decide the preliminary issue as to the territorial jurisdiction of the learned Guardian Judge, in that, in view of the compromise arrived at between the parties before the punchayat, it was one of the terms and conditions of the divorce which took place between the parties that the custody of the minor shall be handed over by respondent No, 1 to the petitioner.
Accordingly, about four days prior to the presentation of the application under section 7 of the Act, the husband, in consequence of the alleged compromise, obtained the custody. This being so, it is contended that since at the time of presentation of the application, the minor was deemed to be a permanent resident of Faisalabad with the petitioner, and, therefore, the application could only have been entertained at Faisalabad and the Guardian Judge, at Lahore lacked territorial jurisdiction to entertain the same. The cognizance of the application was ex facie violative of the provisions of section 9 of the Act.
4. It is next contended that the learned Guardian Judge has passed the impugned order by misreading of evidence adduced by the parties and finally it is submitted that, in any case, while deciding the preliminary issue, the courts below have also expressed their opinion on merits of the case which has caused grave prejudice to the petitioner in pursuing the matter before the Courts below. Learned counsel for the petitioner has strongly relied on the dictum laid down in Mst. Khair- un-Nisa v. Abdur Rahim that where the minor lawfully or otherwise resides at a particular place, prima facie, the courts of that place would have jurisdiction to entertain an application under the Act. The relevant observation at page 239, Portion 'C' reads thus "Admittedly, the marriage took place at Karachi and the parties resided together at Karachi only.
The minor whose custody is claimed also is just now, lawfully or otherwise, at Karachi. Prima facie, therefore, it would seem to be that the Karachi Court has jurisdiction and it is always for the plaintiff to choose his forum provided that the forum is one of jurisdiction."
The precedent cited by the learned counsel for the petitioner is distinguishable and not attracted to the facts of the present case, in that, it is proved from evidence on record which I have perused with the assistance of the learned A counsel for the petitioner that the minor was born at Lahore at the house of respondent No, 1 and throughout before the pronouncement of the Talaq, the minor continued to remain with the mother. The petitioner, in his cross-examination, has himself stated that :- {{URDU TEXT}} The learned counsel for the petitioner has frankly conceded before me that a copy of the alleged compromise in pursuance of which the minor was to reside permanently at Faisalabad, was not placed on the record of the lower Court. The petitioner has not cared to place the said compromise dee even on the record of this Court. It is, therefore, difficult to hold in the exercise of my constitutional jurisdiction as to whether or not any such arrangement was made between the parties. Furthermore, this being disputed question of fact, cannot be inquired into in the exercise of writ jurisdiction.
5. The learned Guardian Judge has decided the preliminary issue in appreciation of evidence on record and recorded a finding of fact that the minor was not the ordinary resident of Faisalabad within the purview of section 9 of the Act. The appellate Court concurred with this finding of fact.
Viewed from this angle as well, the concurrent finding of fact cannot be disturbed in these proceedings, in that, a question as to whether a person is an ordinary resident of one place or another is essentially a question of fart which cannot be gone into the exercise of writ jurisdiction unless it is based on misreading of evidence, which learned counsel for the petitioner has not been able to point out. The impugned orders of the Courts below Court not, therefore, be treated arbitrary or capricious or based on misreading of evidence was to call for interference in the discretionary constitutional jurisdiction of this Court. The expression "ordinarily resides" has been1 judicially interpreted in Muhammad Siddique Siddiqui v. Mst. Aziz Bibi and 3 others Mr. Justice Karam Elahee Chauhan (as he then was), after exhaustively dealing with the entire case-law on the subject, observed that the ordinary residence of the minor is only that residence where the minor has settled down at that place for a reasonably long period. This being so even it is assumed for the sake of argument that there was any such agreement that the minor would reside at Karachi, the same was not an ordinary residence of Faisalabad as he has been admittedly settled down at Lahore under the care and custody of her mother. Reference may also b made to Mst.
Zubaida Begum v. Chaudhry Ghulam Rasul, where the same view was earlier followed by the Division Bench of the West Pakistan High Court and it was inter alia observed that the initial presumption that minor were ordinarily residing at the place where the guardian resides is rebuttable, My learned brother Shabbir Ahmad, J. (as he then was) observed at page 973 of the abovequoted authority of the Division Bench :- "Considering the entire material on the record, I have arrived at the conclusion that the initial presumption that the minor was ordinarily residing at the place where the guardian resides was rebutted in this case also because the child had been living at Sialkot for over two years, while the father was admittedly living at Lahore at the time of the presentation of the application and would appear to have been living there ever since the 10th of December, 1954. It follows that the Guardian Court at Lahore had no jurisdiction to hear the application under section 25 of the Guardians and Wards Act. Consequently, I accept the petition for revision and direct that the application under section 25 of the Guardians and Wards Act shall be returned to the applicant for presentation to the proper Court."
' The same view was followed by the Division Bench in E. C. Raul and 2 others v. Arthur Dennis and another.
6. Respectfully following the ratio laid down in the aforesaid precedents, I' hold that the Courts below have not committed any illegality or material irregularity in holding that the Courts at Lahore had territorially jurisdiction to entertain the application.
7. The apprehension of the learned counsel for the petitioner that some observations were made by the Courts below on the merits of the case which tentamounts to pre-determine the whole issue is misconceived. It is well-settled that such observations are always of tentative nature. The ultimate question of the custody of the male child shall be determined by the learned Guardian Judge in the light of the evidence led by the parties and on the basis of the welfare of the minor and in accordance with law, notwithstanding any tentative observation made in the impugned order having any bearing on this aspect.
8. This writ petition is even otherwise incompetent in view of they, of section 48 of the Act by virtue of which section 115, C. P. C. They, applicable to orders passed under the Act. Be that as it may, the impugned orders were passed with lawful authority and are, therefore, not open to scrutiny either in the exercise of revisional jurisdiction under section 115, C. P. C. Or under Article 9 of the Provisional Constitution Order, 1981.
' For the reasons stated above, the petition fails and is hereby dismissed in limine. PLD 1973 Kat, 237 PLD 1970 Lah. 596 PLD 1959 Lah. 967 PLD 1975 Quetta 352 3 4 1 2 3 4