This Constitutional petition has been filed against the order of IInd Additional District Judge, Karachi (South), dated 21-11-1998 in Family Appeal No,45 of 1998 between the petitioner and respondent No,1, wherein the following reliefs have been prayed:-- "(a) Declare that the impugned, order passed by the learned respondent No,2 in respondent No, 1 's Family Appeal No,45 of 1998 is illegal, of no legal consequence and has been passed without lawful authority.
(b) Declare that the learned respondent No,2 is not competent to pass any order and/or interim order on respondent No, 1 's application for suspension of the Honourable Supreme Court's consent order, dated 18-6-1996.
(c) Restrain the learned respondent No,2 from passing any order whatsoever on respondent No,1's application for suspension of the Honourable Supreme Court's consent order, dated 18-6-1996 and/or from suspending, modifying, altering and/or varying the operation of the said consent order, dated 18-6-1996;
(d) Grant any other/further/additional relief(s) that this Honourable Court may deem fit and proper in facts and circumstances of this case;
(e) Grant costs of these proceedings."
2. The brief facts leading to filing of the above Constitutional petition are that the petitioner and respondent No,1 were married. One daughter and one son were born from the said marriage. Due to differences between the aforesaid parties the marriage was dissolved whereafter respondent No,1 started living with her parents. After dissolution of marriage, dispute arose between the parties regarding the custody of minor children and both of them indulged in litigation over the custody. The issue of custody, however, was finally decided by the Honourable Supreme Court by consent order, dated 18-6-1996 in terms of the agreement arrived at between the aforesaid parties. According to the order of the Honourable Supreme Court, dated 18-6-1996 the petitioner was allowed to have the custody of the children on every week end from 6-00 p.m. on Thursday to 4-00 a.m. on Saturday. The petitioner was also allowed to have the custody of children for the first two weeks and the last two weeks of the summer vacation and for one week during the winter vacation. The petitioner was also made responsible for providing medical cover to the children and was also to pay a sum of Rs,10,000 per month to respondent No,1 towards the maintenance of the children. After some time respondent No,1 did not observe the terms of the consent order and refused to hand over the custody of the minor children to the petitioner on two occasions on which the petitioner filed contempt application in the Supreme Court as well as Guardian and Wards Case No,146 of 1997. The Honourable Supreme Court vide its order, dated 22- 10-1997 directed the parties to continue to abide by the compromise deed, dated 18-6-1996 as no ground for varying the order regulating the arrangement was made out. Thereafter, respondent No,1 filed an application under Order XXXII, Rule 6 of the Supreme Court Rules, 1980 in the Supreme Court of Pakistan wherein she levelled serious allegations of sexual misbehaviour towards the children against the petitioner.
This application was dismissed by the Honourable Supreme Court in the following terms:-- "In our view, since the question as to whether the father has lost his right to the custody of the minors for the reasons inter alia mentioned in the aforesaid application, filed before the Family Court, is in issue before the Family Court, it will be appropriate for the mother to file the present application also before the Family Court if she is so advised. However, the Family Court will be free to pass such order as it may deem appropriate after hearing both the parties and providing them reasonable opportunity which may be warranted by law. With the above observation, this application is dismissed."
3. Subsequently, respondent No,1 took up the issue before the Family Court. Not being able to obtain favourable order from the Family Court, respondent No,1 filed an appeal before respondent No,2, who passed the aforesaid order, dated 21-11-1998 and another order on 27-11-1998. A bare perusal of the impugned order is sufficient to hold that the Appellate Court had not finally decided any issue between the aforesaid parties in the appeal pending before it under the West Pakistan Family Courts Act (hereinafter referred to as the said Act"), which deals with the filing of suits and appeals in the matters covered by the Schedule to the said Act. Section 14 of the said Act provides for an appeal against a decision given or a decree passed by a Family Court. No second appeal is provided by the said Act. However, an aggrieved party can challenge the decision or decree of the Appellate Court by way of Constitutional petition. There are two limitations on the filing of Constitutional petition in this Court. The Constitutional jurisdiction of this Court cannot be invoked for challenging: Firstly, an interlocutory order or orders which do not finally decide the subject- matter in dispute between the erring parties; and secondly, an order which does not suffer from any illegality, mala fides or is not in excess of the jurisdiction or in lack of exercise of jurisdiction vesting in the Appellate Court or is not based on misreading, misconstruing or discarding of the evidence and material on record. In support of the first ground reliance is place on the case of Syed Shaukat Abbas v. Mst. Bushra Rani and another PLD 1982 Lah. 281. In support of the second ground reliance is placed on the case of Muhammad Ishaque v. Chaudhry Ahsan Ahmed and another PLD 1975 Lah. 1118.
5. In the case of Rao Muhammad Awais Qanni v. Mst. Tauheed Aisha and others 1991 M LD 1097 it was held that the word "decision" used in section 14 of the said Act would not include every interlocutory order passed by Family Court but would cover only such orders as are based under same provision of the Act, thus, implying determination of a question or issue relating to the main dispute. It was further observed that a discretionary order of trial Court in respect of a matter falling within its jurisdiction, could not be challenged in Constitutional jurisdiction of High Court. These observations would apply on all fours for the purpose of invoking the Constitutional jurisdiction of this Court.
6. Regarding the challenge to the order, dated 27-11-1998, it is to be observed that the same was passed after filing of the aforesaid Constitutional petition, which was filed on 23-11-1998. The order, dated 21-11-1998 had ceased to exist and had merged in the order, dated 27-11-1998. This order was required to be challenged, if at all it could be challenged, by means of a fresh Constitutional petition. The order, dated 27-11-1998 could not be impugned or assailed by way of this Constitutional petition.
7. The order, dated 27-11-1998 cannot be said to be a final order or determination of the controversy in issue so as to be volatile of the order of this Court, dated 24-11-1998, whereby this Court had allowed the Appellate Court to proceed with the matter restraining it from passing any final order.
The submission that the trial Court committed contempt of Court by ignoring the order of this Court and passing a final order is without any substance as a bare perusal of the order dated 27- 11-1998 is sufficient to conclude that the same was an interlocutory order which is to remain in existence till a final order or decision is made by the Appellate Court in regard to the controversy or dispute in issue. The Appellate Court in making the order, dated 27-11-1998 neither committed any illegality or acted with mala fide intention nor the same was in, excess of the jurisdiction vesting in the Appellate Court or was contrary or in misconstruing the evidence on record.
8. Upon the above discussion I am satisfied that this Constitutional petition is without any substance, misconceived and is not maintainable. By a short order, dated 21-12-1998, it was dismissed in limine with all the miscellaneous application pending therein for reasons to be recorded later. These are the reasons for the order of dismissal.