' This Revision application has been filed against an order under section 12 of Guardians and Wards Act dated 20-7-1994 passed by IVth Senior Civil Judge, Karachi East.
2. Facts leading to this revision are that respondent filed an application under Guardians and Wards Act against applicant for declaring him as guardian of this son Ahsan, and return of the custody of the minor from the applicant. She also moved application under section 12 of Guardians and Wards Act.
3. The trial Court passed orders directing the applicant to bring the minor Ahsan, who is two years old on each and every date of hearing for meeting with respondent for two hours, and also to give custody of the minor to the respondent on last Thursday and take him back on Sunday morning.
4. Applicant being aggrieved by the later part of the order regarding giving the custody of the minor to respondent on Thursday and taking him back on Sunday morning has filed this revision application.
5. Learned Advocate for the applicant argued that the impugned order clearly indicates that child is deeply attached with the applicant. Element of urgency which is essential factor for transferring custody is lacking. He further argues that even when the child was produced before Justice Mukhtar Ahmed Junejo in Criminal Miscellaneous 135 of 1993 filed by the respondent the child when left free, rushed to the applicant, and not to the respondent, and that condition of child became unbearable during short time when he was left to remain with his mother. He further argued that temporary custody of the child to the respondent will have adverse effect on the health and character. He has relied on case of Muhammad Sadiq Butt v. Khalida Parveen (PLD 1967 Karachi 645) and Khushi Muhammad v. Mst. Arshad Bibi (1988 SCMR 1234).
6. Advocate for the respondent argued that proceedings under Guardians and Wards Act are initiated in the Family Courts and any appeal would lie to the District Judge if the order is passed by Officer subordinate to District Judge and to High Court if passed by a District Judge. Same is the provision under section 47 of Guardians and Wards Act. He further argued that as the order was passed by the Senior Civil Judge who is subordinate to the District Judge, as such, appeal against the impugned order will lie to the District Judge and not to the High Court. He has further argued that as per section 17 of the Family Courts Act except sections 10 and 11 no other provision/section apply to the proceedings in Family Courts. As such, revision under section 115 is not maintainable.
He has relied on case of Mst. Zaibunnisa v. Muhammad Muzammil (PLD 1972 Kar. 410), Syed Shamim Ahmed v. Mst. Riaz Fatima (PLD 1975 Kar. 448), Muhammad Din Malik and another v. IInd Additional Sessions Judge, Karachi and another (1982 CLC 441).
7. In case of Khushi Muhammad v. Arshad Bibi (1988 SCMR 1234) it has been held that it would not be in the interest of the children to shuttle them between one and other until final decision of the case. In case of Muhammad Sadiq Butt v. Khalida Parveen (PLD 1967 Karachi 645) it has been held that order under section 12(1) can be passed on if there is certain element of urgency.
8. It has been held in case of Mst. Zaibunnisa v. Muhammad Muzammil (PLD 1972 Karachi 410) appeal against decree or decision of Family Court under the Guardians and Wards Act when Presiding Officer is not a District Judge or a Judge of equivalent rank lies to the District Judge and not to the High Court. Section 17 of Family Courts Act 1964 has prescribed that provisions of Civil Procedure Code except sections 10 and 11 shall not apply to the Family Court and litigant cannot invoke section 115, C.P.C. And Revision under section 115, C.P.C. Is not maintainable.
' In Shamim Ahmed v. Riaz Fatima (PLD 1975 Kar. 448) it has been held that orders of the Family Courts are excluded from the operation of section 115, C.P.C.
' In Muhammad Din Malik v. IInd Additional Sessions Judge, Karachi (1982 CLC 441) it has been held that orders under section 12 are appealable.
9. The arguments and the law produced by the learned Advocate for the applicant are on merits of the factual position of the case but the arguments and law produced by the respondent's Advocate is on legal position.
10. Under section 17 of the Family Courts Act provisions of C.P.C. Except provisions of sections 10 and 11, are not applicable to the proceedings under Family Courts.
11. In Ehsanul Rehman v. Mst. Najma Parveen (PLD 1986 SC 14) it has been held that the High Court has no revisional jurisdiction whether in cases dealt under Family Courts Act or those dealt under Guardians and Wards Act by virtue of section 25 of the Family Courts Act. Sections 14 providing for the appeals continues and will continue to cover the field of remedy, of course, apart from the Constitutional remedy. Proviso to section 47 of Guardians and Wards Act provides that appeals from Courts subordinate to District Court shall lie to the District Court. This section also discloses the orders against whom the appeal can be preferred. Order under section 12 is not amongst the orders against which the appeal lie.
12. It is clear that there' is no provision of revision under section 115, C.P.C. Against the order under section 12 of the Guardians and Wards Act. Appeal against the order under ,section 12 of Guardians and Wards Act does A not lie but even if any appeal is preferred in view of section 14 of Family Court Act it can be filed only in the Court of District Judge as the Court of Senior Civil Judge is subordinate to the District Judge.
13. In view of the above legal position I find that present Revision Application is not maintainable and is, therefore, dismissed.
14. This guardianship matter is filed in January, 1994 and should have been completed by now. The trial Court is directed to complete the proceedings within two months of passing of this order as frequent shuttling of the minor between the parties will have adverse effect on his health and welfare.
' This Revision Application is dismissed with no order as to costs.