P L D 2002 Karachi 122 (PLP)

"Declare that he impugned orders dated 8‑3‑2000 and 22‑3‑2000 passed by the respondent No.2 in G&W Application No.1149 of 1997 as well as subsequent judgment dated 24‑5‑2000 passed by the respondent No.3 in Family Appeal No.26 of 2000 are illegal, null and void, not in accordance with the law and are of no legal effect: (a) Remand the case to the Court of respondent No.2 or to some other Court of law to proceed with the matter afresh and decide the same on merits according to law after taking evidence from both the parties and hearing them in the interest of justice; (b) Cost of the proceedings. The brief facts as disclosed by the petitioner are that he was married to respondent No.1 Syeda Erum Shakeel on 17‑10‑1994. Out of wedlock, she gave birth to baby Muniba on 16‑8‑1995 After some time the respondent No.1 filed a suit for dissolution of marriage against the petitioner. The petitioner also tiled a suit of restitution of conjugal rights. The suit of respondent No. 1 was decreed and her marriage was dissolved whereas the suit of petitioner for conjugal rights was dismissed. The petitioner tiled Guardians and Wards Application No. 1149 of 1997 under section 25 of Guardians and Wards Act against the respondent No.1 for the custody of minor Muniba Waseem in the Court of District and Sessions Judge, Karachi‑East which was transferred to the Court of IVth Senior Civil Judge East, Karachi. Alongwith main application interlocutory application under section 12 of Guardians and Wards Act for interim custody of the minor was moved and the interim order thereon was passed by the trial Court in the matter, for meeting of baby with the petitioner/father. It is stated that the petitioner was sending Rs.1,000 per month to the respondent No.1 as maintenance of baby since October, 1997. The Guardianship application proceeded in the Court of Vth Senior Civil Judge, Karachi East. The case diary shows that on 15‑8‑1998, the learned Presiding Officer was on judicial training and resumed his duty on 12‑9‑1998. The case for the first time came up for evidence on 8‑10‑1998 and thereafter it was being adjourned from time to time. The petitioner was present on each and every date. The case diaries further indicated that either the Presiding Officer was on leave or the matter was adjourned by consent of the parties. The case diaries further show that on 8‑3‑2000, an adjournment application was moved by the learned counsel for applicant. The adjournment was declined by the learned trial Court and main application moved under the Guardians and Wards Act was dismissed. The petitioner thereafter moved an application for setting aside the said order and restoration of the application on 11‑3‑2000. The said application ,was dismissed by Family Judge on 22‑3‑2000. The, petitioner being aggrieved by that order filed an appeal before he District Judge, Karachi East, who maintained the order of trial Court and dismissed the appeal filed by the‑ petitioner. The said judgment is impugned in this Constitutional petition. It is contended by learned counsel for petitioner that his application has been dismissed due to the absence of witnesses. It is argued that the petitioner was not responsible to the delay in the matter. He only sought one adjournment on 20‑4‑1999 in the matter and the remaining dates were given by the Presiding Officer for various reasons. Some time the Presiding Officer was on casual leave and some time the case was adjourned by consent of the parties. Both the orders passed by the two Courts below do not demonstrate as to how many adjournments in all were sought by the petitioner. The issues were framed on 7‑3‑1998 and the adjournment application was moved on 8‑3‑2000. The perusal of case diaries show that the petitioner had only sought a single adjournment during that period. The case was earlier fixed on 26‑3‑2000 when the same was adjourned as Presiding Officer was on casual leave. On the next date of hearing, the main application was dismissed. It is submitted that the petitioner was not afforded proper opportunity to produce his evidence. Mr. Muhammad Irfan learned counsel appearing for the respondent No. l has stated that the petitioner had failed to produce his evidence for two years and therefore the application was rightly dismissed by the trial Court. He has supported the impugned judgments of two Courts below and has relied upon the same. He reiterated same facts mentioned in the impugned judgments. It is argued that the petitioner has contracted second marriage and further proceedings of Guardians and Wards Act would yield no fruitful result. The perusal of record. shows that the issues were framed on 7‑3‑1998 and thereafter the case came up for adducing evidence for the first time on 8‑10‑1998. In the impugned order it is not disclosed as to how many adjournments were sought by the petitioner for producing his evidence. The earlier date of hearing was fixed on 26‑2‑2000 and the case was adjourned to 8‑3‑2000 as Presiding Officer was on causal leave. The case on 26‑2‑2000 was not adjourned on the request of petitioner. The case diaries indicate that the petitioner sought only one adjournment on 20‑4‑1999. It appears that the petitioner had not been afforded proper opportunities to adduce his evidence. The matter was not decided on merits but it was thrown on technicality. The orders of .two Courts below are neither just nor proper. The orders dated 28‑3‑2000 and 24‑5‑2000 passed by the two Courts below are set aside and the case is remanded to the trial Court for recording the evidence of parties. The parties are directed to appear before the trial Court on 6‑10‑2001. Learned counsel for petitioner is directed to produce his witnesses on the said date and proceed with the case. On his failure to do so, the necessary orders shall be passed in accordance with law. The trial Court has to decide the case within four weeks. The petitioner shall pay cost of Rs.2,000 to the respondent No.1 on that date of hearing. Q.M.H./M.A.K./W‑21/K Petition allowed.