IHSAN UL HAQ CHAUDHRY, J.- The petitioner through this Constitutional petition has impugned the order dated 26.10.1986 of respondent No.1.
2. The relevant facts are that the petitioner and respondent No.2 were married in accordance with the Muslim rites and Mst. Shamim Gul, the minor, only child was born on 21.10.77 out of this wedlock.
Thereafter their relations became strained and divorce took place. The respondent No.2 moved an application under section 25 of the Guardian and Wards Act on 8.12.1984. The petitioner contested the same. The learned Guardian Judge framed issued, recorded evidence and after hearing the parties proceeded to dismiss the petition vide order dated 8.3.1986. The respondent No.2 impugned this order through an appeal, which came up on the file of respondent No.1 for disposal. This appeal was allowed vide ex-parte order dated 26.10.1986. The petitioner has impugned this order through this Constitutional petition. This was admitted to hearing and notices were issued to the respondents. The respondent No.2 alone has appeared and contested the petition
3. The learned counsel for the petitioner in support of the petition argued that the appeal was filed on 14.4.1986 and the appellate Court was pleased to issue notice to the present petitioner for 5.5.1986. The process server reported that the petitioner had gone to see relations. The report is dated 30.4.1986. The respondent No.1 after going through this report observed that the service of the petitioner is not possible in the ordinary manner, therefore, directed her to be served through publication of notice in daily 'Maghrabi Pakistan' for 27.5.1986. It is argued that neither there was any basis nor the respondent No.1 recorded any finding that the defendant No.1 is keeping out of way for purpose of avoiding service. The learned counsel in this behalf has referred to the cases of Syed Muhammad Anwar Vs. Sheikh Abdul Plaque (1985 SCM R 1928) and Haji Karamat Hussain Vs. Khan Muhammad (N.L.R 1986 Civil 106). It is added that since the interest of minor was involved therefor, respondent No.1 should have been very slow to take exparte proceedings. In this behalf leaned counsel has referred to Mst. Naseem Sughra Vs. Ghulam Hussain and two others (1986 C.L.C 2515).
4. On the other hand, learned counsel for contesting respondent argued that the petitioner in her statement made in another proceedings between the parties admitted that she had the knowledge of the pendency of the appeal. Therefore, defect in service is of no avail to her. The learned counsel in this behalf has referred to the provisions of Order IX Rule 13 C.P.C and impugned order of respondent No.1. It is added that the conduct of the petitioner is that her counsel appeared on 26.10.86 and notified that he wants to move an application and for that purpose requested for adjournment but thereafter he did not appear and the appeal was accepted on the same day ex- parte, therefore, there is nothing wrong with the same. It is submitted that the petitioner has not raised this point in the writ petition.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record of this writ petition as well as the record of the respondent No.1 It is clear from the interim orders passed in the appeal by respondent No.1 that appeal came up for preliminary hearing on 14.4.86 when notice was issued to the petitioner for 5.5.86. The process server as already noted, reported that petitioner was not available at her residence and she had gone to visit her relations. Neither the process server reported that the petitioner is intentionally avoiding the service nor the respondent No.1 recorded finding to this effect. In fact there was no basis to record such finding but still the respondent No.1 concluded that it is not possible to serve the petitioner in the ordinary manner, therefore, directed her service through publication of notice in daily 'Maghrabi Pakistan'. This order is bad in law and learned counsel for the petitioner has rightly referred to the case of Muhammad Anwar ibid. The moment this order is struck of the subsequent orders fall to the ground automatically. The respondent No.1 proceeded in undue haste while ordering substituted service. He should have been more careful because in this case interest of a minor was involved. The contention that the petitioner had knowledge is of no consequence for the reasons that neither this statement was on record of the appeal nor the respondent No.1 noted its date. In the absence of date the statement, it is meaningless. Moreover, until the petitioner was confronted with the same and given an opportunity to explain it the same could not have been used against her. The statement is not available on the file of respondent No.1 and the learned counsel for respondent No.2 failed to give the date of this statement.
6. The upshot of the above discussion is that this writ petition is allowed, the orders of respondent No.1 from 5.5.86 onwards are set aside with no order as to costs The result is that the appeal of respondent No.2 will be deemed pending and the appellate Court is directed to decide the same expeditiously and in any .Case by 30th April, 1991. The respondent No.1 has since been transferred from Sialkot, therefore, the parties are directed to appear before the learned District Judge, Sialkot on 9.3.91 and he is directed to decide the appeal himself.