2019 PLP 2692 (YLR)

MUZAMIL AKHTAR SHABIR, J.

Through this Constitutional petition, petitioner has called in question order dated 23.05.2018 passed by Guardian Judge-VI, Lahore in a petition under Section 25 of the Guardians and Wards Act, 1890 through which the said petition has been dismissed for non-production of evidence and has also called in question order dated 09.08.2018 passed by respondent No.1/Additional District Judge, Lahore who dismissed the appeal filed there-against by the petitioner as barred by time along with application for condonation of delay in filing the same as not disclosing sufficient reasons.

2. The learned counsel for petitioner has argued that the welfare of the minor was required to be seen by both the courts below instead of deciding the matter on technicalities, therefore, both the above referred orders are liable to be set aside and petitioner be allowed to lead her evidence.

3. On the other hand, learned counsel for respondent No.3 has defended the afore-referred orders passed by the courts below by stating that the delay on the part of the petitioner was contumacious as each and every day to file appeal has not been explained.

4. Heard, record perused.

5. The petitioner's right to lead evidence was closed and her plaint was dismissed; the appeal filed there-against has also been dismissed as barred by time. The only ground for this Court to decide is whether the order passed by the appellate court in the given circumstances is in accordance with law or not.

6. The appellate Court has dismissed the appeal as barred by time as each and every day of delay has not been explained. Although reference has been made to judgment reported as Shaukat Masih v. Mst. Farhat Parkash and others (2015 SCMR 731) wherein the Supreme Court had passed certain orders for the welfare of the minor despite the said remedy not having been availed within time, the learned appellate court disregarded the said judgment in a slipshod manner by not taking its principles into consideration in juxtaposition with the facts of the present case and decided the same on the basis of another judgment of the Hon'ble Supreme Court of Pakistan reported as Mst. Nadira Shahzad v. Mubashir Ahmad and others (1995 SCMR 1419) requiring the parties to explain each and every day of delay. The superior courts have always in the cases relating to minors given paramount importance to their welfare instead of deciding the matters on technicalities as right to custody of minor gives recurring cause of action to the parties to raise the said dispute again and again in the minor's welfare unless it is finally settled and there is no change in circumstances as is evident from the judgment reported as Malik Khizar Hayat Khan Tiwana and another v. Mst. Zainab Begum and another (PLD 1967 SC 402) wherein despite dismissal of earlier application for default, second application under Order IX rule 9 read with Section 141, C.P.C. was entertained by the court by holding that in guardianship matters, the overriding consideration is always welfare of the minors. The court in such cases is really exercising a parental jurisdiction as if it were in loco parentis to the minor. This is not a jurisdiction, therefore, in which there can, by its very nature be any scope for any undue adherence to the technicalities. The same principle has been followed in various judgments thereafter i.e. Mst. Hameed Mai v. Irshad Hussain (PLD 2002 SC 267), Mst. Rubia Jilani v. Zahoor Akhtar Raja and 2 others (1999 SCMR 1834). Following the afore referred dictum, this Court in judgment reported as Naveed Munir v. Additonal District and Sessions Judge, Lahore and another (2011 MLD 1938) entertained a time barred application under Order IX, Rule 13 of the C.P.C. for setting aside decree for appointment of guardian of minor when in the given circumstances of the case the welfare of the minor so required.

7. Keeping in view the principles laid down in the afore referred judgments, it is held that even an application for condonation of delay in filing appeal in guardianship matters is to be decided keeping in view welfare of the minor even if the said ground has been raised by a party or not.

8. As the impugned order passed by the appellate court is silent as to whether it has considered aspect of welfare of the minor or not, it would be appropriate to set-aside the impugned order dated 09.08.2018 and remand the matter to the learned Appellate Court for rehearing and re-deciding the same afresh keeping in view the said aspect of the matter. Disposed of accordingly. SA/S-45/L Case remanded.