' SARDAR MUHAMMAD IQBAL, C. J.-Writ Petition No. 2189 of 1973, F. A.
0. No. 186 of 1973 and F. A.
0. No. 52 of 1975 have been referred to a Division Bench for a decision on the question whether an appeal against a decision of a Family Court in a matter relating to guardianship or custody of a minor lies to the High Court or is competent before a District Judge.
2. The facts in Writ Petition No. 2189 of 1973 are that Mr. Muhammad Ant, Judge, Family Court (Guardian Judge), Multan, dismissed an application of Mst. Azmat respondent submitted by her under section 25 of the Guardians and Wards Act for the custody of the minor daughter Mst.
Sughran. Mst. Azmat filed an appeal against this order before the learned District Judge, Multan, who allowed the same and directed the petitioner to hand over the custody of the minor to Mst.
Azmat respondent. This order was challenged by the above writ petition on the ground that the District Judge had no jurisdiction to entertain the appeal. Reliance was placed for this proposition on Muhammad Ismail v. Fa:al Ahmad (1) and Jumma Khan v. Gui Ferosha (2). In both these cases it was held that notwithstanding section 14 of the Family Courts . Act, an appeal against the order of the Guardian Judge was competent before the High. Court since such appeal was governed by the provisions of the Guardians and Wards Act. A contrary view was taken by a Full Bench of the Sind & Baluchistan High Court in Zatbun Nun v. Muhammad Muzammal (3). It was held there that 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 the High Court. The following question was, therefore, formulated by the learned Single Judge who was seized of the writ petition, for reference to a larger Bench "Whether the appeal against the order of a Guardian Judge, functioning under the Family Courts Act, who is not a District Judge, or one of equivalent rank, would lie to the High Court or to the District Court ?"
3. F. A.
0. No. 186 of 1973 was sent to my Lord the Chief Justice with a query for passing orders whether it should be heard along with the appeal which had been referred to a larger Bench. Reference in Writ Petition No. 2189 of 1973 and F. A.
0. No. 52 of 1975 is to a Full Bench but this Bench has been constituted to consider the question.
4. It may be stated in the beginning that out of the four counsel who put in appearance before us, namely, Mr. Riaz Anwar for the petitioner and Mr. Muhammad Akhtar for the respondent in the writ petition, Mr. Zamir Hussain who appeared in F. A.
0. No. 186 of 1973 for the appellant and Mian Nazir Aktitar who put in appearence in F. A.
0. No. 52 of 1975 for the appellant, three learned counsel, namely, Mian Nazir Akhtar, Sh. Zamir Hussain and Mr. Riaz Anwar as well as Ghulam Hussain respondent in F. A.
0. No. 186 of 1973, supported the proposition that appeal in such a case is competent before the High Court. Only Mr. Muhammad Akhtar opposed this proposition.
5. One of us (Aftab Hursain, J.) had an occasion to consider a similar question in Mrs. Parreen v. Kh.
Muhammad Ashar (4). The question in that case was whether revision petition against an order of the District Court in
(1) PLD 1969 Lah. 834 (2) PLD 1972 Pesh. I
(3) PLD 1972 Kar. 410 (4) PLD 1975 Lab.. 334 matters governed by Guardians and Wards Act was competent in view of the bar of section 17 of the West Pakistan Family Courts Act, which provides that the provisions of the Code of Civil Procedure except sections 10 and 11 shall not apply to proceedings before any Family Court. It was argued that this provision excluded the applicability of section 115, C. P. C. To matters within the exclusive jurisdiction of a Family Court. Reference was made to support this proposition to the Full Bench Authority of the Sind & Baluchistan High Court in Zaibun Nisa v. Muhammad Muzammal. It was held by the Full Bench in.The above ease that section 25 of the Family Courts Act which recognises the Family Court to be a District Court for the purposes of the Guardians and Wards Act, 1890, and which provides that notwithstanding anything contained in this Act such Court shall follow in dealing with the matters specified in the Guardians and Wards Act, the procedure prescribed in that Act, was not applicable to appeal and revision. It was held by the Full Bench that appeal and revision petition was not a matter of procedure and as such the provisions of appeal and revision in the Guardians and Wards Act stood substituted by the provision of section 14 of the Family Courts Act which makes the decision of a Family Court appealable to a District Court except in cases where there are specific provisions in it for appeal to the High Court. This was a departure from the view taken by the Division Bench of the High Court of West Pakistan in Muhammad Ismail v. Fazal Ahmad where it was held that the word "procedure" in section 25 of the Family Courts Act includes the provisions of appeal and an appeal in the guardianship matters is governed by the provisions of section 47 of the Guardians and Wards Act. After considering the jurisprudential sense of the word "procedure" at length it was held in Mrs. Parreen v. Kh. Muhammad Ashar of the language of section 25 of the Family Courts Act the appeals and revisions under the Guardians and Wards Act are governed by sections 47 and 48 of that Act and as such a revision before the High Court against an order of the District Court section 17 of the Family Courts Act notwithstanding, was competent. After reproducing extracts from Blackstone's "Elements of Law"
(1889 Edn.) at page 21 and Holland's "Jurisprudence" (Thirteenth Edition, 1924), it was held that the law of procedure is the law which falls under the category of adjective law or remedial law as distinguished from substantive law. A number of cases were then referred to for the interpretation of the word "procedure" which in Wharton's Law Lexicon (Fourteenth Edition) is explained as a mode in which successive steps in litigation are taken. In A. K. Gopalan v. The State of Madras (1) the "procedure" is defined as "the manner and form of enforcing the law". It was then found out that the word "procedure" may include the remedial right and as such the right of appeal also belongs to the sphere of procedure. Reference was made to Salmond on Jurisprudence' (Twelfth Edition), page 461, where it is stated that there are many rights (in the wide sense) which belong to the sphere of procedure, for example, a right of appealthere are rights in the realm of procedure just as in that of substantive law............"
(1) AIR 1950 SC 27 ' Similarly in the "Jurisprudence" by Paton, III Edition, at page 535 it is stated that :- ' The following conclusion was drawn from the authorities and the boob on jurisprudence :- "In its wider sense a statute dealing with procedural law will include all the methods to recover a man's private rights or to redress private wrongs. It will include all the procedural laws by which remedy for the enforcement of right or redress of wrong is made available. It deals with the mode in which successive steps in litigation are taken from the time of starting the litigation in Court up to the stage of its final termination which includes the culmination of execution proceedings. It is for the reason that in books on jurisprudence 'appeal' is dealt with generally under the chapter of 'procedure'. It is in this wider sense that the word 'procedure' has been used in the preamble to the Code of Civil Procedure which, as stated there has been enacted to consolidate and amend the laws relating to the Courts of civil jurisdiction'. Evidently this Code includes the provisions about appeals and revisions in its sections 96, 97, 100, 104, 109, Order XLIII, rule 1 and section 115, C. P. C. The entire Code deals with the machinery provisions for the settlement or disposal of disputes. Again it is in that sense that the West Pakistan Family Courts Act is an Act dealing with procedure.. ...... ..."
' After dealing with the scheme of the Guardians and Wards Act, the following observation was made t- "It will be seen that this Act deals not only with the powers and procedure of appointment or declaration as guardian but also with the right to such appointment or declaration vested in certain parties. This Act can, therefore, be appropriately said to be the aggregation of substantive as well as procedural law on the subject of Guardianship. It not only provides certain rights but also machinery of enforcement of those rights. The machinery provisions are included in al the Chapters. It provides for the forum for making application, for appointment or declaration as guardian, for supervision of the persons appointed as guardian and for the removal of guardians. It makes provisions for power of transfer of cases, determination of the Court which should decide a particular matter where proceedings are filed before two different Courts, territorial jurisdiction of the Courts, supervisory jurisdiction of the superior Courts tender section 115, C. P. C. And the right of a party to challenge orders passed under this Act by way of appeal."
' After considering the scheme of the Family Courts Act, it was held that : "The entire Family Courts Act provides for the machinery by which certain matters in the Schedule of the Act can be disposed of. This machinery consists of not only the provisions of a forum in the form of Family Court where such disputes can be instituted for determination but also the right of aggrieved party to challenge the decisions of the Family Court before a higher forum specified in section 14. Section 5 read with Schedule to the Act, provides that even the matters relating to custody of children and guardianship matters have to be decided by a Family Court which has exclusive jurisdiction over them notwithstanding the provision of the Guardians and Wards Act. In section 25, however, it was clarified that for the purposes of Guardians and Wards Act, a Family Court shall be deemed to be a District Court. There is a non obmante clause which becomes necessary hi view of the fact that the provisions in the Family Courts Act were different in many particulars from the provisions of the Guardians and Wards Act. It was, therefore, provided that notwithstanding anything contained in the Family Courts Act, the Family Court (acting as a District Court) shall in dealing with matters specified in the Guardians and Wards Act, follow the procedure prescribed in that Act. By declaring that the Family Court is a District Court it has been made possible to apply the Guardians and Wards Mt in its entirety to cases of custody of children in guardianship matters.
' As stated above, the Guardians and Wards Act makes provisions for certain rights of appointment or declaration as guardian, right to apply for such appointment or declaration and the power of the Court to supervise the guardians and to remove them. All these matters are covered by the expression 'in dealing with matters specified in that Act'. The other provisions would, therefore, be covered by the term 'procedure'. They are all procedural provisions. Looked at from this point of view it will be evident that all those provisions of procedure which are given in the Guardians and Wards Act will apply to cases under that Act to which in the absence of the non obstante clause in section 25 the provisions of the Family Courts Act would have applied."
' After considering the case of Colonial Sugar Refining Co. Ltd. v. Irving (i) which was referred to with approval in State v. Muhammad Jamil (2) and in Muhammad Alam v. State (3) ; In re : Joseph Suche & Co. Ltd. (4) and several other cases it was held that the principles laid down in those cases do not go against the word "procedure" being inclusive of an appeal nor do they go to the extent of saying that a right of appeal is as such distinguishable from a procedural right. At the end was considered the case of Adnan Fazal v. Capt. Sher Afzal (e) in which the matters of procedure were dealt with at some length as is clear from the following paragraph "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes' the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."
(1) 1905 A C 369 (2) PLD 1967 SC 259
(3) PLD 1965 SC 681 (4) (1879) 1, Ch. D4
(5) PLD 1969S C 187 ' The finding in the above case that the Family Courts Act brought about only "procedural changes and not affected any substantive right" was also noticed. On this basis it was held that I ...... This judgment envisages that even in procedural statutes which deal with procedure only and not substantive rights, there may be rights which shall not be deemed to have been taken away retrospectively unless the law is clearly retroactive in character. A statute may, therefore, be procedural statute but may still confer certain rights which may be of the same character as substantive rights but it does not mean that to that extent it ceases to be a procedural statute."
6. We fully endorse the view taken in this case which is in accord with the view taken by the Division Bench of the High Court of West Pakistan in Muhammad Ismail v. Fazal Ahmad. No argument except whit was stated in the case of Zaibun Nisa v. Muhammad Muzammal were addressed to us to prove that this view was incorrect. This view is supported by two other considerations. In the present case no one questions the right of an aggrieved party to file an appeal, whether it lies under the provisions of the Family Courts Act or under section 47 of the Guardians and Wards Act.
What is being questioned is only the forum of appeal which certainly is not a matter of substantive right, but is a matter of procedure. The forum being a 6 matter of procedure, it will be govern, d by virtue of section 25 of the Family Courts Act by the provisions of section 47 of the Guardians and Wards Act.
7. If the forum of appeal is considered to be the District Court, that will create a serious anamoly. It has been seen that section 25 of the Family Courts Act equates the Court functioning under the Guardians and Wards Act with a District Court. It is unthinkable that an appeal from the District Court will lie to a Court of concurrent jurisdiction. In fact section 14 of the Family Courts Act also provides for an appeal to the. High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and status of District Judge or an Additional District Judge. The appeal to the District Court is made competent only from the orders and decrees only of those Courts which are not presided over by a District Judge or the Additional District Judge meaning thereby "which are not District Courts". On this principle also the forum of appeal cannot be the District Court. It can be a only the High Court.
' Our answer to the question is that the appeals in matters under the Guardians and Wards Act are governed by the provisions of that Act and lie under its section 47 to the High Court.
All these cases shall now go back to the Single Judge for decision on merits.