' This is a Constitutional Petition under Article 199 of the Constitution of Pakistan, 1973 read with Article 9 of the Provisional Constitution Order, 1981.
2. The facts leading to this petition, briefly stated, are that respondent No. 1 was married to the petitioner on 11-5-1974. During the wedlock, which still subsists, two children, one son and one daughter, were born. The relations between the petitioner and respondent No.1 after sometime became strained and they are living separately. Respondent No.1 on 29-4-1982 filed an application under section 25, Guardians and Wards Act for the custody of her daughter which was registered as Guardians and Wards No. 789 of 1982. The petitioner in response to summons issued by the Court appeared and filed his written statement. Respondent No.1 after sometime filed an application under section 12 of the Guardians and Wards Act which was allowed by the learned XVIIth Senior Civil Judge by his order, dated 27-9-1982 whereby interim custody was ordered to be given to respondent No.
1. The petitioner, thereon filed an appeal before the Additional District Judge who by his order dated 16-1-1983 decided it in his favour. Against this order the respondent No. 1 on 27th March, 1983 t filed Constitutional Petition No. 46 of 1983 in this Court which came up for Kutcha Peshi on 20-11-1983.
The said petition was, however, not pressed and allowed to be withdrawn, with a direction to respondent No. 2 (Family Judge) to dispose of the case within six months, in presence of the petitioner's counsel.
2. The learned trial Judge disposed of the said case by his judgment, dated 26-1-1984 whereby the application under section 25 of the Guardians and Wards Act moved by respondent No. 1 was allowed. Being aggrieved with the said judgment the petitioner filed an appeal before the Additional District Judge who by his order, dated 4-11-1984 dismissed the same and now the petitioner has filed this petition.
3. The first and foremost contention as raised by Raja Qureshi, the learned counsel for the petitioner is that after the order, dated 20-11-1983 passed in the Constitutional Petition No. 46 of 1983 no notice was sent by the learned trial Court which according to him, was necessary. I find no force in this contention for the simple reason that the proceeding before the trial Court had neither been concluded nor stayed by this Court at any stage nor R&P was ever called for. In fact the proceedings did continue from one date to other even after the filing of the writ petition and the petitioner through his counsel was present on several dates as will be presently seen. The proceedings were also not adjourned sine die after the institution of the aforesaid writ petition. It is also incorrect statement made in para. 9 of the petition and is also belied by the case diary of the trial Court. After the record and proceedings were received back from the appellate Court, the respondent No. 1 waived notice. The trial Court, however, issued notice to the petitioner and his counsel. First such notice to the petitioner and his Advocate was issued on 6-4-1983. Another notice was issued on 7-4-1983 for 20-4-1983 which though returned served the petitioner and his counsel remained absent. No action was, however, taken on that date as the Presiding Officer was on leave and the case was adjourned to 30-4-1983. On that date 'too' both the petitioner and his counsel were absent. The learned trial Judge ordered the issuance of another notice to be served by affixation. Again on 11-5-1983 a fresh notice was ordered to be issued to be served on the petitioner by affixation. On 23-5-1983 the notice was returned duly served after affixation and the Advocate for the petitioner made his appearance. The case was, however adjourned at his request.
The petitioner was also ordered to produce the minor in the case on 24-5-1983. On 24-5-1983 the minor was produced. He was, again, ordered to produce the minor on the next date of hearing i.e. 4-6-1983. On 4-6-1983 the counsel for the parties appeared. Minor was produced. The case was then adjourned to 11-6-1983, 11-7-1983 and 3-8-1983 when the Advocates for the parties were pFesent on all these dates. It is pertinent to note that on 18-7-1983 respondent No. 1 filed an application under section 45 of the Guardians and Wards Act for taking action against the petitioner for non-compliance of the Court's order by not producing the minor. Notice on that application was ordered to be issued. The Advocate for the petitioner appeared on 3-8-1983 and made request for adjournment which was granted and the case was adjourned to 6-8-1983. The petitioner and his counsel thereafter chose to remain absent continuously to avoid, probably, the hearing of the application under section 45 of the Guardians and Wards Act for the production of the minor as well as the hearing of main suit. The case was adjourned on various dates at least for 13 times between 6-8-1983 and 26-1-1989 when the suit was decreed ex parte. Under the circumstances it cannot be said that the petitioner was condemned unheard.
4. The second contention as advanced by the learned counsel is that the relations between the parties being strained the order of the trial Court that the petitioner is allowed to see the minor, once a week every Friday at the residence of respondent No. 1 is harsh for the petitioner.
5. I am afraid, that there is no ground for invoking the writ jurisdiction by this Court, as there has not been shown any jurisdictional error or absence of lawful authority o; even an illegality in passing the impugned orders by the two Court below.
6. For the reasons discussed above, I find no force in this petition which is accordingly dismissed in limine. Consequently Civil Miscellaneous Application No. 520 of 1984 for suspension of the order does not lie and is also dismissed.
Writ .