1. This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed by the petitioner against the order dated 14-12-1992 passed by the learned First A.D.J., Hyderabad whereby Miscellaneous Civil Appeal No. 14/1991 was dismissed and the Order dated 10- 3-1991 passed by the learned Second Senior Civil judge, Hyderabad on application under Order 9, Rule 13, C.P.C. Was upheld.
2. The brief background of the matter is as follows: The respondent filed Guardianship Application No.80 of 1986 against the petitioner for the custody of her minor daughter Hira and the petitioner also filed similar Application No. 169 of 1986 against the respondent for the custody of two minors, namely, Fouzia and Saba before the learned District Judge, Hyderabad. Both the matters were transferred on the file of learned Second Senior Civil Judge, Hyderabad, and were also consolidated on 11-5-1987 by the learned trial Court. After framing of issues the respondent examined herself and closed her side. Thereafter from 8-12-1987 to 17-5-1989 the petitioner did not examine himself and his side was closed. Ultimately on 13-2-1990 the learned trial Court after hearing the learned counsel for the respondent allowed Guardianship Application No.80/1986, and dismissed the Guardianship Application No.169/1986. The petitioner then filed an application under Order 9, Rule 13 read with section 151, C.P.C. For recalling the order dated 13-2-1990 which was dismissed by the learned trial Court. He challenged that order in appeal being Miscellaneous Appeal No. 14 of 1991 but that too was dismissed.
3. I have heard Mr.; S. A.I Taqi, learned counsel for the petitioner and Mr. Jhamat Jethanand, learned counsel for the respondent No. 1.
4. Learned counsel for the respondent mainly challenged the maintainability of the petition itself.
5. However, the learned counsel for the petitioner submitted that the plea against the maintainability of revision application against the two concurrent findings of fact by the lower Courts is always available due to its limited scope but in Constitutional petition this argument is unsustainable.
6. Furthermore, the instant case is a guardianship matter where the Courts acting as parental Court should avoid technicalities in administering justice. According to the learned counsel for the petitioner both the parties are on inimical terms and it would be in the interest of justice if the custody of minor Hira is allowed to remain with the petitioner. He further contended that since no other adequate remedy was available to the petitioner he can invoke the jurisdiction of the High Court in accordance with Article 199. He also pointed out that the trial Court proceeded with the matter and closed the side of the petitioner during the operation of the stay order granted by this Court in C.P. No.3/88, therefore, such proceedings would be nullity in law. Accordingly the learned counsel for the petitioner prayed that the matter may be remanded to the trial Court after setting aside all the orders for disposal of the matter afresh according to law. Lastly, he contended that according to Muhammadan Law the father being the natural guardian need not file petition for appointment of guardian but all other persons including the mother have to apply first for appointment of guardian and then for custody of minor, therefore, the respondent-who is the mother of minor as such could not file application for custody of the minor without getting order of her appointment as guardian from the Court.
7. Thus according to the learned counsel for the petitioner the application filed by the respondent for the custody of minor Hira was not maintainable in law. In support of his submissions he cited the following cases:---
(1) Mst. Munawar Jan v. Master Muhammad Afsar Khan PLD 1962 (W.P.) Lah. 142;
(2) Muhammad Sadiq v. Mrs. Sadiq Safoora PLD 1963 (W.P.) Lah. 534;
(3) Begum Zainab Tiwanah v. Ch. Aziz Ahmed Waraich and 3 others PLD 1967 (W.P.) Lah. 977;
(4) Zulfikar A.I Bhutto v. Government of West Pakistan and others PLD 1969 Karachi 151;
(5) Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan. PLD 1981 SC 21;
(6) Najma Parveen v. Ihsan-ur-Rehman 1988 CLC 2196;
(7) Mst. Sahib Bibi v. Guardian Judge, Jhang and 2 others 1987 CLC 807;
(8) Sultana Begum v. Mir Afzal and others PLD 1988 Karachi 252;
(9) Zulfiqzar Ahmed v. Mst. Qaisra Sattar and 2 others 1988 CLC (Lah.) 1741;
(10) Muhammad Ashraf v. Mst. Sakina and 2 others 1989 SCMR 1277
(11) Ghulam Shabbir and others v. Addl. Commissioner, D.I. Khan and 3 others 1990 SCMR 2294;
(12) Din Muhammad and 2 others v. Abdul Rehman Khan 1992 SCMR 127;
(13) Abdul Razak v. Ijaz Mahmood and another 1992 CLC 5;
(14) Walayat A.I v. Mst. Khalida Bibi and others 1992 CLC 812.
8. Learned .Counsel for the respondent No. l submitted that after the concurrent findings of the lower Courts this petition is misconceived and is not maintainable in law.
9. I have given anxious consideration to the above submission and have perused the record. It would be relevant to take note of the fact that the learned trial Court allowed the Guardianship Application No.80/1986 and dismissed the Guardianship Application No. 169/1986 under order dated 13-2-1990 which being the main order was not challenged by the petitioner. Instead he submitted application under Order 9, rule 13, C.P.C. Which was dismissed on 10-3-1991. It is by now legally settled that except sections 10 and 11 the provisions of C.P.C. Are not applicable to Family Court vide section 17 of the Family Courts Act, 1964. Therefore, the course adopted by the petitioner was ill-advised and misconceived.
10. It would also be relevant to note that this Court had granted stay of the proceedings on 28-2-1988 in Petition No.S-3 of 1988 which was however, dismissed for non-prosecution and thereafter the proceeding commenced by the learned trial Court were valid and no exception could be taken to them.
11. Constitutional jurisdiction under Article 199 is intended to foster justice and strike down order which are found to be in excess of or without lawful authority or patently in contravention of express provision of law. This power is to be exercised subject to the Constitution and its object is to curb excess of jurisdiction and to keep the inferior Courts and Tribunals within their bounds. A's such recourse to such remedy is appropriate in cases involving invasion of rights of an applicant as a result of transgression of its authority of action contrary to law by the execution, Court or tribunal.
12. But where substantial justice has been done the High Court will be reluctant to interfere even if there are some irregularities in the proceedings. In the instant case the learned trial Courthas passed the order dated 13-2-1990 in proper exercise of its jurisdiction and it has been rightly maintained by the learned Appellate Court. It would not meet ends of justice if the relief prayed for the petitioner is allowed in exercise of Constitutional jurisdiction especially when the impugned judgments are in accord with the equity of the case. I also find no force in the prayer made by the learned counsel for the petitioner that the matter may be remanded for leading the evidence of the petitioner and final disposal of guardianship application afresh. The principle that the Court should lean in favour of adjudication of causes on merits appears to be available for invocation only when equitable consideration lie in favour of the person who comes to the Court for such relief. The petitioner was given ample opportunity to contest the matter before the learned lower Court and now in these proceedings the main order dated 13-2-1990 which has attained finality cannot be allowed to be set aside. The authorities cited by the learned counsel for the petitioner are not relevant to the point involved in this petition.
13. Accordingly it is held that this petition is without merit and is dismissed. However, in the interest of justice it is observed that since miner Hira had remained for a long time in the custody of the petitioner it is ordered that the respondent No. l should make suitable arrangement for her meeting once a month with the petitioner. In case if it is not possible to arrange such a meeting due to personal or any other reason the learned trial Court on an application made by the petitioner should pass suitable orders for meeting of minor Hira with the petitioner after her custody is handed over to the respondent.