JUDGMENT MUHAMMAD MUNIR KHAN, J.-- Through this Constitutional Petition, Mst. Siddiqan Bibi and Ghulam Yasin, petitioners seek declaration to the effect that the order dated 2'f.7.1986 of learned Guardian Judge/Judge Family Court, Muzaffar Garh, directing Elahi Bakhsh, respondent No.5, to had over the interim/temporary custody of Mst. Siddiqan Bibi, petitioner No. 1, to her mother, Mst.
Jannal, respondent No.3, and the order dated 3.10.1987 passed by the learned Addl. District Judge, respondent No. 1, rejecting the appeal of Elahi Bakhsh, respondent No.5, against the order' dated 29.7.1986 of the learned Guardian Judge, Muzaffar Garh, respondent No.2, are illegal, without lawful authority and of no legal effect.
2. The learned counsel for the petitioner contended that since Mst.. Siddiqan Bibi had not only attained majority but had also been married to Ghulam Yasin, petitioner No.2, and was living with him and a decree for the restitution of conjugal rights had also been passed in favour of Ghulam Yasin against petitioner NO.1, therefore, the learned Guardian Judge had no jurisdiction to deliver the interim custody of petitioner No. 1 to her mother Mst. Jannat, respondent No.3.
3. The learned counsel for respondents No.3 and 4 frankly admitted that the petitioner Mst.
Siddiqan Bibi was not only married to Ghulam Yasin before the order of her interim custody was passed by the learned Guardian Judge, but has bv now given birth to a child and is presently living with her husband Ghulam Yasin.
4. I have considered the matter carefully. Admittedly, Mst. Siddiqan Bibi was married to Ghulam Yasin, petitioner No.2, and was living with him and she had also attained majority, therefore, the learned Guardian Judge haiTiw authority to deliver her custody even temporarily to her mother, respondent No.3.
Plaintiff/petitioner filed an appeal, which was entrusted to Addl. District Judge, .Sahiwal. Alongwilh the appeal, the Petitioner/plaintiff filed an application under section 5 of the Limitation Act for the condonation of delay. The Appellate Court refused to condone the delay and dismissed the appeal as barred by time. Hence this revision.
2. The appeal was barred by 27 days. The learned counsel for the petitioner submitted that the order in the application for temporary injunction of the Petitioner/plaintiff was passed on 26.4.1989.
The petitioner applied for the certified copy of the order on 29.4.1989. The Copying Agency gave a Parchi indicating 6.5.1989 as date for the delivery of the copy of the order. On 6.5.1989, the petitioner approached the Copying.Agency, but he was told that the copy was not prepared and no further dale for the delivery of the copy to him was given by the Copying Agency. On 13-5,-1989, he again approached the Copying Agency for the supply of the copy of the order to him, but by that date the copy of the order was not prepared, lt was on 26.6.1989 that he was supplied the copy of the order of the trial Court. On examining the same, the petitioner found that the date of the preparation of th copy was mentioned as 15.5.1989. The learned counsel argued that since no further date for the supply of the copy of the order was given to the petitioner by the Copying Agency, therefore, the time spent between the dale of the application and the date of the delivery shall be excluded. On the contrary, the learned counsel for the respondents supported the judgment of the learned Addl. District Judge and the reason given by him for the rejection of the prayer for the condonation of delay.
3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner, I find that in support of his application under section-5 of the Limitation Act, .The petitioner had filed an affidavit but no counter affidavit was filed by the respondents. In view of the plea raised by the petitioner, it was not possible to disbelieve the explanation given by him for delay in lodging the appeal without examining the record of the Copying Agency or the clerk, who received the application for the supply of the copy of the order or who prepard the same and the Clerk of Court, who certified the same to be true copy. Strangely enough, without making any investigation into the explanation given by the petitioner, the learned Appellate Court declared the appeal lime barred on surmises and conjecture.
4. Pursuant to the above discussion, the revision petition is accepted. The order dated 23.7.1990.Of the learned Addl. District Judge, Sahiwal, is set aside and the case is sent back to him for fresh decision of the application for the condonation of delay under section 5 of the Limitation Act and of the main appeal after examining the record of the Copying Agency, recording the statements of the concerned clerks, if necessary, and giving Parties an opportunity of being heard. The parties shall bear their own costs.
Habeas in the circumstances being a speedy and efficients remedy was quite competent and should have been decided on merits. Learned counsel for the respondents has opposed this appeal.
4. We have considered the matter carefully. We feel persuaded to agree with the learned counsel for the appellant. Undisputedly, three children/dctenue are less than 7 years pf age. Baqir is a suckling babe. The appellant is the real mother of the children. She has not contracted second marriage whereas the respondent Has recently married third wife. We feel that the writ petition could 'have easily been adjudicated upon on the admitted facts and there was hardly any need to record evidence or to hold investigation.
5. Pursuant to the above discussion, the appeal is accepted and the impugned order is set aside.
Since the learned Single Judge has not considered and discussed the merits of the petition and has dismissed the same on a technical ground, so the case is remanded for fresh decision in accordance with law and may be placed before any Bench.