1. ' SYED DEEDAR HUSSAIN SHAH, J.--- On 14-5-1998 after hearing, learned counsel for the parties, we by short order have allowed the petition, set aside the order passed by the learned VIIth Additional District Judge (South) Karachi, dated 26-5-1990 and remanded the case to the learned VIIth Senior Civil Judge at Karachi for holding inquiry as per the order, dated 7-11-1989.
2. ' We now hereby assign reasons for the short order. Brief facts of the matter are as follows:-- ' Mst. Nasreen Begum widow of Abdul Baqi, respondent No,1, filed application for appointment of Guardian for the property and minors before the VIIth Additional District Judge, South Karachi being Application No,79 of 1989. The applicant averred that she married with late Abdul Baqi son of Mian Khan according to Muslim Law and out of the above wedlock 7 children were born. The names and ages of the children are as follows:--
(i) Huma Daughter of Abdul Baqi aged 17 years
(ii) Humera -do- aged 16 years
(iii) Abdul Jabbar Son of Abdul Baqi aged 14 years
(iv) Mehnaz Daughter of Abdul Baqi aged 13 years
(v) Mian Khan Son of Abdul Baqi aged both are twins and aged about 11 years
(vi) Nawab Khan Son of Abdul Baqi
(vii) Essa. Son of Abdul Baqi aged 6 years ' That husband of the applicant and father of the minors late Abdul Baqi died at Karachi on 14-2- 1983 due to Cardiac failure. Prayer of the application was as follows:-- "It is, therefore, prayed that the applicant be appointed as guardian of said minors as stated in para. 1 herein and of their property i,e, their legal share in Plot No,57/1, Garden West, Karachi, inherited by them from their deceased father.
3. ' Any other relief/relieves which this Honourable Court may deem fit and proper under the circumstances of this case."
4. ' In pursuance to the above application learned VIIth Senior Civil Judge at Karachi while hearing the Guardians and Wards Application No,170 of 1989 was pleased to appoint the petitioner as guardian of the property of the minors vide order, dated 11-7-1989.
5. ' Mst. Nasreen Begum approached the learned VIIth Senior Civil Judge, Karachi for seeking permission for sale of the property of the minors. Learned VIIth Senior Civil Judge allowed the application vide order, dated 9-9-1989. On 17-9-1989 one Afzal son of Musti Khan one of the parties of Intervenors of Messrs Crown Construction Services submitted application under Order 1, Rule 10 read with section 151, C.P.C. Requesting therein to be impleaded as party to the proceedings. The, application was supported by affidavit sworn by Afzal Khan. Another application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Was filed on behalf of the Intervenor praying therein that the petitioner/Guardian of the minors and Nazir of the Court may please be prohibited and restrained from entering into sale of executing the sale-deed for the share of the minors in respect of the property. This application was also supported by affidavit sworn by Afzal S. Masti Khan.
6. ' There is a report of Nazir, dated 18-9-1989 stating therein that in compliance of the order, dated 9- 9-1989 passed by the Court, on 17-9-1989 the Nazir executed the sale-deed on behalf of the minors before the Sub-Registrar. Thereafter, on 24-9-1989 application under section 151 read with section 12(2), C.P.C. Was filed with the prayer, to recall/set aside the order of sale of the property of minors bearing Property No,57/1, Garden West, Karachi to Khuda Bux Chandio on the ground that the orders have been obtained by playing fraud upon the Court, against the interest of the minors by suppression of facts and misrepresentation and to revoke the said sale after holding inquiry and further to restrain the Sub-Registrar, "T" Division VI, Lyari, Karachi from further proceeding with the Registration or creating any encumbrance on the said property and from handing over the document/sale-deed to purchaser Khuda Bux Chandio in the interest of justice. The application was supported by affidavit of Afzal Khan. Counter-affidavit to this application was filed by Mst.
7. Nasreen, mother of the minors and the respondent No,1.
8. ' After hearing the learned counsel for the parties learned VIIth Senior Civil Judge vide order, dated 7-11-1989 allowed the application with the following observation:- "The point which requires further inquiry in this case is that the applicant through Nazir has sold out the share of the minors at the rate of Rs,960 per sq. Yard whereas clause (4) of Annexure 1/2 show that Rs,1,200 per Sq. Yard. Was the consideration in the year 1980. It is alleged that the applicant even after the death of her husband has taken some amount in lieu of the share consideration executed during life time of her husband Abdul Baqi. The interest of the minors is involved in the property in question which requires further inquiry. Accordingly this application is allowed let this case be kept for further proceedings."
9. ' Being aggrieved and dissatisfied with the above order Mst. Nasreen Begum, respondent No,1, filed Civil Revision No,79 of 1989 before the learned VIIth Additional District and Sessions Judge, Karachi South. The learned VIIth Additional Sessions Judge by order, dated 26-5-1990 allowed the revision application observing as follows:-- "Hence I find that intervenor's application is not proper and the order does not appear to be lawful and as such order, dated 7-11-1989 is hereby set aside. Proper remedy for the intervenor is to invoke appropriate jurisdiction of the Civil Court for getting the redress, if he had any privacy of the contract. With these direction appeal is allowed with no order as to costs."
10. ' The above order has been agitated through this Constitution petition. Mr. Akhtar Hussain, learned counsel for the petitioner, has contended that the order, dated 26-5-1990 passed by the learned VIIth Additional District Judge, South Karachi is illegal and without jurisdiction. That the provisions of Code of Civil Procedure in this matter are not applicable. According to section 14 of the Family Court Act, the decision and the decree passed by the Family Court shall be appealable:-- "(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge of any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and
(b) to the District Court, in any other case."
11. ' That the jurisdiction exercised by the learned VIIth Additional District Judge is unwarranted. That the orders of the sale of the property of minors were obtained by fraud and suppression of the material facts from the Court of the learned VIIth Senior Civil Judge and when it came to know that fraud has been committed and since the interest of the minors are involved in the property in question, therefore, the learned trial Court ordered inquiry in the matter and the case was kept for further proceedings.
12. ' Mr. Akhtar Hussain has cited PLD 1972 Kar.
13. 410.
14. ' Mrs. Surriya. Rahim learned counsel for the respondent has contended that out of the 7 minors six have attained majority and they have already compromised with the party to whom their mother sold away the property and only one Essa is minor as yet and after two years he will also attain majority. That the order of the learned Additional District Judge, South Karachi is liable to be maintained.
15. We have gone through the material placed with the case. Admittedly, the respondent No,1 was appointed as Guardian of the minors and their property being their real mother. She entered into sale agreement which according to the order of the learned Trial Court, prima facie, appears to be against the interest of the minors and as required under the law allowed inquiry in the matter and kept the case for further proceedings. By this order admittedly, interest of the respondent No,2 in any case was not adversely affected even then she approached the learned VIIth Additional District Judge, South Karachi, through civil revision application.
16. ' In view of the provisions of section 14 of the Family Court Act, referred to hereinabove, in any case even revision application against the above order is not permissible, however, the provisions of Code of Civil Procedure under the Family Court Act are not applicable. In PLD 1972 Kar. 401, a reference was placed before the learned Full Bench of this Court consisting of Mr. Justice Dorab Patel, Mr. Justice Muhammad Haleem (as their Lordships then were) and Mr. Justice Ghulam Rasool K. Shaikh, J. To this effect:-- "In a decision by the Family Court under the Guardians and Wards Act where the presiding Judge is not a District Judge or one of equivalent rank does an appeal lie at all and, if so, to which forum?
17. ' After hearing the learned counsel for the parties, Mr. Fakhruddin G. Ibrahim, Mr. A.K. Lakhani and Mr. Ajmal Mian as Amicus curiae and after perusal of palethora of case-law, learned Full Bench of this Court was pleased to observe as under:-- "An appeal against a decree or decision of a Family Court under the Guardians and Wards Act, when its presiding Judge is not a District Judge or a Judge of equivalent rank, lies to the District Court and not to this Court."
18. ' Their Lordships further observed:-- "As the Civil Procedure Code is not applicable to proceedings under the said Act, the revision is not maintainable. Further, as the case itself has been referred to us, the revision is dismissed with costs."
19. ' We would like to refer to a reported case decided by a learned D.B. Of this Court of which one of us was a member.
20. ' The pronouncement made in this case is that when an allegation of fraud or cheating is, made by any of the parties to a proceeding pending in a Court in obtaining an order from such Court then it becomes incumbent upon the Court to hold an inquiry into the allegation of fraud and cheating and set aside the order if it is found to have been obtained by playing fraud on Court as fraud and cheating renders the most solemn transactions as illegal and null void. It was further declared that a Court of Tribunal not vested with the power of revising, reviewing or recalling its order would become entitle to exercise the aforesaid powers for recalling, revising or setting aside an order obtained by fraud. It will be appropriate to reproduce the relevant portion from the aforecited authority, which is as under:-- "It has been generally held that fraud vitiates the most solemn of the transactions and renders the same as voidable and a nullity in the eye of law and it was necessary to examine the plea of fraud with a view to determine the possibility of commission of fraud by the above respondents and its effect on the alleged transfer of the common open passage in favour of the above three respondents."
21. Since the revision application against the order of the learned Family Court Judge is not permissible, the order of the Family Court Judge, dated 7-11-1989 allowing the inquiry in the matter was proper and within the four corners of the jurisdiction vested with the Court. The impugned order passed by the VIIth Additional District Judge appears to be without jurisdiction which is liable to be set aside. The case-law referred by Mr. Akhtar Hussain is relevant, applicable and helpful to the case of the petitioner whereas the decision of learned D.B. Of this Court referred to hereinabove is also applicable to this matter.
22. ' For the facts, circumstances and case-law, we allow the above petition, set aside the order of the learned VIIth Additional District Judge, South Karachi, dated 26-2-1990 and remand the same to VIIth Senior Civil Judge, Karachi South for holding inquiry as per the order, dated 7-11-1989.