' The respondent No,2, Farman Hasan Khokhar, has filed the present application under section 3/4 of the Contempt of Court Act and section 561-A, Cr.t.C., read with section 151, C.P.C., whereby he has requested for taking legal action against Mrs. Shamim A. Saduzai, learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) for non-implementing the order, dated 15-11-1999, passed by this Court.
2. It is averred in the affidavit filed by respondent No,2, in support of the aforesaid application that applicant is in habit of making false application against him in the present matter. She filed application for recalling and modification of the order of this Court, dated 17-5-1999. The application was fixed before this Court on 15-11-1999 and it was disposed of with the direction to the learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) for passing appropriate order for the purpose of meeting by respondent No,2 with his minor son Asad Ali Khokhar. Copy of the order was communicated to the learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) by the respondent No,2 as well as it was communicated to her by office of the Court. It is further, averred that the counsel of respondent No,2 requested the learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) for hearing but the learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) directed counsel for the respondent No,2 that she will not hear the matter and without hearing returned the order for presenting it before the appropriate/ concerned Court of District South. The return of the order for presenting it before the competent Court by the said learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) was termed as contempt of Court and the present application was moved for action against the alleged contemnor.
3. This Court by order, dated 24-6-2000 directed the learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) to file its parawise comments. In obedience in this order, the alleged contemnor filed its comments wherein it is stated that the application for contempt was filed with mala fide intention and the respondent No,2 has filed the present application by suppressing the true facts, thus, he himself has committed the contempt. It is denied in the comments that the order of this Court, dated 15-11-1999 was not wilfully or deliberately complied with but in fact there was no order for implementation. The direction was to the effect to pass a suitable order regarding meeting of the respondent No,2 with the minor on the date of hearing i,e,, 17-11-1999.
4. The respondent No,2 filed an appeal against the order of the learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) before the District Judge, Karachi (East) through his counsel Mr. Gohar Iqbal, Advocate, and it was dismissed on 13-1-2000 as the same was withdrawn by the learned counsel for the respondent No,2. It is denied that Advocate for the respondent No,2 was not heard on 17-11-1999 and so also the applicant was present before the Court. So far the return of the order is concerned it is averred in the comments that the order was returned for want of territorial jurisdiction. She has further stated that being a Judge of lower judiciary she cannot imagine disobey/defy the order of Superior Courts. She has prayed that present application has been filed in order to making her.
5. I have heard Mr. Muhammad Ashraf Kazi, learned counsel for the applicant and Mr. Gohar Iqbal, for the respondent No,2/applicant. I have also perused the material placed on record.
6. It will be pertinent to reproduce hereinbelow the order of this Court passed on 15-11-1999:--- "Mr. M.A. Kazi, Advocate.
' Mr. Gohar Iqbal, Advocate.
' In this application the applicant has alleged serious allegations of causing violence while meeting with the child at the residence of the applicant. The allegation has been denied by the respondent in the counter-affidavit. Since application under section 25 of the Guardian and Wards Act filed by the respondent No,2 is pending before the learned Guardian Judge it would be appropriate if for future meetings the learned Guardian Judge may pass any suitable order after hearing both the parties. Accordingly, this application may be filed and till such time orders are passed by the learned Guardian Judge for meeting with the minor by the respondent, the order passed earlier may not be complied with. It is pointed out that the Guardianship, case before the learned Guardian Judge is fixed for hearing on 17-11-1999. The parties are directed to appear before the learned Guardian Judge on this date and the learned Guardian Judge is directed to pass suitable orders regarding meeting by the respondent with the minor on that date."
7. The perusal of the above quoted order shows that a direction was issued to the learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) for passing suitable orders regarding meeting of the respondent No,2 with his minor son Asad Ali Khokhar on that date. The learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) passed an order that the minor was not ordinarily residing within the territorial jurisdiction of the Vth Senior Civil Judge, Karachi (East), therefore, she returned the plaint and other applications for filing them before the Court having jurisdiction in the matter. The operative part of the order, dated 17-11-1999, passed by the learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) is reproduced herein below for ready reference:- "After hearing the learned counsel for the applicant I have gone through the case file carefully and contentiously from perusal of the case file it reveals that the custody was handed over to the respondent Sana Farman by the Hon'ble High Court vide order, dated 17-5-1999 in Criminal Miscellaneous Application No,213 of 1999, and since then minor is residing with her mother at, "House No,69-A, 28th Street, Phase VI, Khayaban-e-Badar Defence Housing Authority, Karachi.
' The applicant filed the present application under section 25 of the Guardian and Wards Act, 1890 before Hon'ble District and Sessions Judge East, Karachi, on the same date. The plaint was referred to this Court on 18-5-1999 and the case as registered on 18-5-1999. Admittedly, at the time of filing G&W case the minor was residing with her mother in the jurisdiction of District South and not in the jurisdiction of this Court.
' I have also gone through the relevant Provision of Law. Section 9 Guardian and Wards Act, provide as: ' Court having jurisdiction to entertain application 1-If the application is with respect to the Guardianship of the person of the minor it shall be made to the District Court having jurisdiction in the place where the minor ordinarily, resided.'
' It is pertinent to mention here that since the minor is not ordinarily residing' within the territorial jurisdiction of this court and if this Court will pass any judgment or order in the matter is nullity in the eyes of law. Reliance placed PLD 1959 Lahore page 75, Imtiaz Begum v. Azmatullah.
' The directions of Honorable High Court are binding upon the Lower Court to fulfil and in the instant case Honorable High Court has directed to pass the order for meeting of the minor but this Court is enable to pass any order for meeting due to lack of jurisdiction, hence the plaint and other application are hereby returned to the applicant for filing before the Court having jurisdiction.
Announced in open Court."
8. The respondent No,2/applicant being aggrieved' by the order preferred appeal before the learned District Judge, Karachi (East) and following order was passed on 13-1-2000: --- "Case called. Mr. Gohar Iqbal, learned counsel for the appellant is present. It is contended by him that at 'this juncture the appellant is not interested in pursuing the appeal because of the fact that guardian and wards application has been instituted before the proper forum. In this view of the fact, the learned counsel for the applicant does not press the appeal as such the same is hereby dismissed with no order as to costs."
9. Thus, it is crystal clear that neither the learned Guardian Judge/Vth Senior Civil Judge, Karachi
(East) had jurisdiction in the matter nor there was any such direction by this Court to the learned Guardian Judge/Vth Senior Civil Judge Karachi (East), for passing an order, therefore, the return of order for producing it before the competent Court was legal and it was not in violation of any direction of this Court or provisions of law. It appears that the learned Guardian Judge/Vth Sr. Civil Judge, Karachi (East) did not flout/disobey the order of this Court in any manner.
10. The applicant cannot play hot and cold. On the one hand he filed appeal before the District Judge against the order of learned Guardian Judge/Vth Senior Civil Judge, Karachi (East) and later on withdrew it. Subsequently, he filed the present application before this Court. It appears that the respondent No,2 has filed the present-application mala fidely.
11. Consequently, the listed application M.A. 61 of 2000 stands dismissed. The respondent No,2/applicant is warned to be careful in future while levelling false and frivolous allegations against the Presiding Officers of the Courts.
' Disposed of in above.