MRS. NASIRA IQBAL, J.- Petitioner has assailed the judgment dated 13.9.2001 passed by respondent No. 1 learned Additional District Judge, Lahore whereby he had dismissed the appeal of the petitioner against the judgment of the learned Guardian Judge, respondent No. 2, dated 11.5.2000 on the ground that it was time-barred. Respondent No. 2 had dismissed the application of petitioner under Section 25 of the Guardians and Wards Act for custody of his three minor children namely lbrar, Bushrah and Maryam.
2. Learned counsel for the petitioner has argued that the appeal of the petitioner was illegally dismissed by respondent No. 1. Since the petitioner had spent .The time while pursuing his remedy before the wrong forum, he had filed the appeal before the High Court which was dismissed on 28.7.2000. Copy of the order of the High Court had been given to him on 20.8.2000 and he had filed the appeal on 5.9.2000 and it was within time and respondent No. 1 had, not considered his application for condonation of delay, therefore, he had been condemned unheard by respondent No. 1. Learned counsel has relied upon reported judgment 1995 SCM R 584 (Sherin, etc. v. Fazal Muhammad, etc.) to argue that when time has been spent while pursuing case before the wrong forum the Court should entertain his appeal and should have decided the same on merits.
3. On merits it is argued that there are three children from the marriage between petitioner and respondent No. 3 Ghazala Naseem. Divorce took place in the year 1997 which was on the basis of Khula, respondent No. 3 retained the custody of all three minors and when the petitioner filed application for custody it was dismissed illegally 'by respondent No. 2 without taking into consideration the fact that petitioner belonging to Fiqah Jafria, this case was to be governed by Shia Law and he was entitled to the custody of all the minors. That Ibrar, minor has crossed the age of 10 years and two female minors have crossed the age of seven and presently all the three minors have crossed the age where under all schools of Muslim Jurisprudence the father is entitled to their custody; further argued that respondent No. 3, mother of the minors has contracted second marriage with a stranger and has thus become disentitled to the custody of the minors particularly the female children and that her brother is implicated in several cases of dacoity, therefore, the atmosphere in the house where respondent No. 3 resides with the minors is not conducive to the welfare of the minors; that respondent No. 3 has no means to give the minors proper upbringing.
Her brother is ASI and he has his own family to support and according to petitioner's statement he is a man of considerable means having worked 22 years abroad as banker and having not cash assets of more than five million and an average monthly income of about Rs.1,75,000/-; it is further argued that he has employed two male and two female servants, therefore, he can well-look after the minors, particularly since he does not leave the house and is conducting the business in his own house and mother of the minors does not possess good moral character and for this reason the custody of the minors should not remain with her.
4. Learned counsel for respondent No. 3 has raised preliminary objections that this writ petition is not maintainable and respondent No. 1 had rightly dismissed the appeal of the petitioner as being time-barred. Since the High Court had not even entertained his appeal against the judgment of respondent No. 2, dated 11.5.2000 and the appeal had been returned to him on 28.7.2000. Petitioner had not applied for a copy till 18.8.2000; copy was ready on 19.8.2000 and petitioner did not collect the copy. Till 5.9.2000. Thereafter he filed an appeal before respondent No. 1 on 20.9.2000, therefore, the appeal was patently time-barred. Petitioner never filed any application for condonation of delay at the time of filing of the appeal; when objection was raised by learned counsel for respondent No. 3, he filed an application under Section 14 of the Limitation Act taking the ground that the time he has spent was consumed in perusing his remedy before the wrong forum. Learned counsel has placed reliance on judgments reported as' 1995 SCM R 584 (Sherin etc. v. Fazal Muhammad, etc)- 1992 SCM R 424 (Masud Ahmed, etc. v. United Bank Limited) and 2000 SCM R 1889 (Idris Ahmed Rizwani v. Federal P.S.C. Etc.) to argue that Section 14 of The Limitation Act cannot be pressed into service in the circumstances of the petitioner's case and he should have filed an application under Section 5 of the Limitation Act but he never filed such an application before the District Judge and therefore, his appeal was rightly dismissed as time-barred and that it had been held in judgment supra 2000 SCM R 1889 that a party is not entitled to any indulgence in respect of condonation of delay, if he does not file the appeal within time on wrong advice since ignorance of law is no defence.
5. On merits it is argued that petitioner has never maintained the minors, therefore, his claim that welfare of the minors lies with him is not substantiated by his conduct. There is no mis-reading of the evidence. Petitioner has not been able to establish that he is in better post to look after the minors, that learned Guardian Judge had directed that minors may be handed over to petitioner on second and fourth Saturday of every month in order that they may spend weekend with him and they should spend 1/3 of Summer Vacations and Winter vacations with their father but petitioner never made any efforts to avail of this opportunity and the minors are well-looked after by their mother and their welfare is also lies in remaining with her.
6. I have heard learned counsel for both the parties and have also gone through the evidence with the able assistance of learned counsel for the petitioner and I have also examined the impugned judgment and the minors are also present in the Court. They have also given their statements.
7. The petitioner has levelled serious allegations of immorality against respondent No. 3 but they are not substantiated in any way. She has allegedly remarried with behalf. It is established that he never paid maintenance to the minors and they had been brought-up by respondent No. 3 and are regularly attending school. All three minors are studying in Lahore City School. Ibrar is in Class V Bushrah is in class IV and Maryam is in class II. Respondent No. 3 has stated that school fee of all three minors is about Rs.1000/- per month besides other expenses which she has been bearing throughout the period that minors, have been in her custody. The minors are well-mannered and appeared to be in good health. Father himself admitted that he himself lives alone in his house but servants will attend to the minors. There is no substitute for the affection of a mother and servants certainly cannot attend to the minors in the same way as their mother can. She is not doing anything other than looking after the minors. Two of the minors are girls, therefore, they need care and attention of their mother. Ibrar is aged 10 years. He is also extremely attached to his mother and two sisters and is not inclined to go with his father, due to this attitude, he does not appear to reconcile his father. It is also to be noted that mother is about less than 10 years of age but father is in advance age and is involved in business and could not have the ability or time to attend to the upbringing and welfare of the minors.
8. In view of above discussion the appeal of the petitioner had been rightly dismissed on the basis of limitation by respondent No. 1. Even otherwise petitioner has not been able to make out a case on merits regarding his entitlement for custody of the minors. This petition is dismissed. .