This petition under section 151 of the Code of Civil Procedure, 1908 has been filed seeking quashment of the proceedings of Guardian and Ward Suit No,880 of 1998 (Mst. Kulsoom Naqvi v.
Mst. Arfa Arif) pending in the Court of Vth Senior Civil Judge, Karachi Central.
2. On 15-5-1999, the Deputy Registrar (Judicial) of this Court raised two preliminary objections.
Firstly, to file certified copies of the impugned judgment/order and, secondly, to quote provision of law under which the main application has been filed which was not mentioned. At the request of learned counsel for the appellant, this matter was placed before this Court for consideration.
Admittedly, the instant petition is filed under section 151, C.P.C. Independent of any other main proceedings. In other words, neither any petition nor any revision is pending but the instant petition has been filed for quashment of the proceedings of the Guardian and Ward suit which has been filed by the respondent. I have also directed the learned counsel for the petitioners on the last date of hearing to satisfy me on the point of maintainability.
3. Brief facts of the case are that the petitioner is the widow of Lt.-Col. Arif Naqvi who was assassinated on 13-6-1995; that the said deceased was the son of respondent; that two daughters, namely, Rushna and Yamna were born as a result of wedlock between petitioner and deceases Arif Naqvi; that respondent being grandmother of the two minors filed a suit under section 25 of the Guardians and Wards Act, 1890 on 24-11-1998 (hereinafter referred to as the Act, 1890); that an interim order was passed by the learned Guardian and Ward Court on 30-1-1999 directing the petitioner to produce the said two minors in Court twice a month for the purpose of meeting with their grandmother. I am told that the said order has attained finality as neither any appeal under section 47 nor any revision was preferred against the said order.
4. I have heard Mr. Izhar Alam Faruqui, Advocate who has contended that a grandmother is not entitled to custody of a child in presence of his/her mother and, thus, the guardian and wards suit filed by the respondents being abuse of process of Court is liable to be quashed. It was further argued that section 151, C.P.C. Could be treated at par with section 561-A, Code of Criminal Procedure, 1898 and the High Court is competent to quash any civil proceedings which amount to abuse of process of law. He has placed reliance on the cases Mst. Amina Begum and others v. Mehr Ghulam Dastgir PLD 1978 SC 220 and Irshad Ahmad and others v. Muhammad Jamil and others PLD 1994 Lah.583.
5. In the case of Mst. Amina Begum (supra), the question before the Hon'ble Supreme Court was whether the Rent Controller is competent to take into consideration any subsequent development in order to avoid multiplicity of litigation. In that case, the protection of six years granted to a statutory tenant under section .30 of the Displaced Persons (Compensation and Rehabilitation)
Act, '1958 matured in favour of the respondent during proceedings before the Rent Controller.
Several case-law was cited before the Hon'ble Supreme Court whereafter it was held, "A discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, shorten litigation and to do complete justice between the parties and mould the relief according to the circumstances in the larger interest of justice." This rule was reiterated by a larger Bench of the Hon'ble Supreme Court in the case Muhammad Aslam v. Wazir Muhammad PLD 1985 SC 46. Before proceeding further, it would be advantageous to quote section 151, C.P.C. Although the same has been quoted time and again in other reported cases:-- "151. Saving inherent powers of Court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
6. Mr. Izhar Alam Faruqui has vehemently placed reliance on the case Irshad Ahmad, etc. v.
Muhammad Jamil and another PLD 1994 Lah. 583 and contended that a learned Judge of Lahore High Court has treated at par section 151, C.P.C. With section 561-A, Cr.P.C. And quashed a proceeding pending before the lower Court. In that case, an application under section 3/4 of the Contempt of Court Act, 1976 was pending before the Lahore High Court and during hearing of that application it was converted into a petition under section 151, C.P.C. And the proceedings pending before the Court of District Judge, Lahore against the petitioner were quashed. It was observed by the learned Single Judge of Lahore High Court that the High Court under section 151, C.P.C. Is equally competent to quash or undo the frivolous or vexatious proceedings pending in any Civil Court subordinate to it. It is settled law that the Courts are competent to treat or convert one proceedings into another kind of proceedings in order to do substantial justice provided the cause remains within the jurisdiction of such Court. There is no bar on the Courts to convert an appeal into a revision and vice versa as it is also equally settled that the wrong mentioning of a provision of law will not deprive a party if it is otherwise entitled to any relief. If any reference is needed, see The Thal Engineering Industries Ltd. v. The Bank of Bahawalpur and another 1979 SCMR 32, Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 and Capital Development Authority, Islamabad v. Khuda Bakhsh and 5 others 1994 SCMR 771.
7. In order to invoke the provision of section 151, C.P.C., It is to be shown that there is.No other provision in the Code and that it will meet the ends of justice. It is to be filed in a pending proceedings and an application under section 151, C.P.C. Cannot be maintained independent of any proceedings. It was held in the case of Mrs. Mehr Sultan Jung v. Qurban Hussain 1972 SCMR 73, "it is well-settled that where the Code has provided for a particular procedure, the provision of section 151 of the Code is not available." It cannot be invoked to defeat provisions of Civil Procedure Code, 1908. (See Messrs Conforce Ltd. v. Syed Ali Shah etc. PLD 1970 SC 599 at 601). In the Code there is a provision of filing appeal against decree and certain orders. There is also provision of filing revision. But no such provisions were availed of and through section 151, C.P.C., learned counsel for the applicant wants to create new powers of the Civil Court which is not permissible. In the case of Mohiuddin Molla v. The Province of East Pakistan and 2 others PLD 1962 SC 119, it was held, inter alia, by a Full Bench of the Hon'ble Supreme Court as follows:-- "The Civil Procedure Code, generally speaking, does not create new powers but regulates the exercise of power already possessed by the Court. Even before the Civil Procedure Code was enacted the Civil Court possessed powers of the kind mentioned in the Civil Procedure Code. It possessed these powers because the Civil Court has jurisdiction to determine and protect civil rights and for the protection of those rights the exercise of such powers is essential."
8. In the instant case, there is neither any appeal nor revision before this Court and the main petition has been filed. Under section 151, C.P.C. Mr. Faruqui in alternative contended that this may be treated a Constitutional petition under Article 199 of the Constitution, 1973. I am afraid this relief cannot be granted to him and the instant proceeding which is an application under section 151, C.P.C. Cannot be converted into a Constitutional petition for two reasons. Although this is permissible as held in the case Capital Development Authority v. Khuda Bukhsh (supra). In the instant case there is no impugned order passed by the subordinate Court and called in question through the instant proceedings and, secondly, the defendant is a private party. For these reasons, I am not inclined to convert this proceeding into Constitutional petition. For exercising powers under section 151, C.P.C., it is a precondition that the Court exercising such powers has jurisdiction.
Use of such powers cannot be resorted to independently as this exists only in aid of jurisdiction i,e, specified in the Code. Messrs Commerce Bank Ltd., Karachi v. Messrs Sarfraz Autos, Karachi and another PLD 1976 Kar. 973 at 977. I am further fortified in my view by a decision of a Division Bench of this Court in the case Messrs National Bank of Pakistan v. Mst. Parveen Akhtar PLD 1985 Kar. 60 where the phrase "for the ends of justice" was interpreted in the following manner:-- "While considering what is the ends of justice following are held to be in the ends of justice:--
(a) That injury should be remedied and needless expense and inconvenience of the parties should be avoided.
(b) Where a party has another remedy open and will not adopt or negligently fails to pursue it, it will not be 'necessary in the ends of justice, as a general rule, to grant him relief under the Court's inherent powers except in exceptional and peculiar circumstances.
(c) It will not be in the ends of justice to exercise inherent powers if it would interfere with the rights of third parties or cause mischief or injustice.
(d) It will not be in the ends of justice to assist a party guilty of laches in consequence of which new rights have arisen against him."
9. It is an admitted position that the present applicant has not challenged the maintainability of the suit before the trial Court. It was admitted by Mr. Faruqui that he has not filed any application under Order VII, Rule 11, C.P.C. Seeking rejection of the plaint but contended that the scope of the same being limited he has directly come before this Court. The jurisdiction of the Guardian and Wards Court has not been challenged nor any law has been cited to show that the suit is barred by such provision of law. There is no order impugned in the present proceedings. It is an independent proceedings filed under section 151, C.P.C. Which cannot be maintained as discussed hereinabove.
This being the situation, present proceedings must fail.
10. In view of the above discussion, the instant appeal is dismissed in limine alongwith C.M.A. No,890 of 1999 and C.M.A. No,891 of 1999.