1980 PLP 865 (CLC)

(4) Relief. Section 9 of the Guardians and Wards Act specifically provides that if the application is with respect to the guardianship of the person of the minor, it shall be 4nade to the District Court having jurisdiction in the place where the minor ordinarily resides. Section 25 of the West Pakistan Family Courts Act provide that a Family Court shall be deem ed to be a District Court for the purposes of the Guardians and Wards Act, 1890 and notwithstanding anything contained in this Act, shall in dealing with matters specified in that Act, follow the procedure prescrib ed in that Act. Section 25-A of the West Pakistan Family Courts Act deals with the transfer of cases and provides as under :- "1:-A.-(1) Notwithstanding anything contained in any law the High Court may, either on the application of any party or of its own accord, by an order in writing ; (a) transfer any suit or proceeding under this Act from one Family Court to another Family Court in the same district or from a Family Court of one district to a Family Court of another district ; and (b) transfer any appeal or proceeding under this Act from the District Court of one district to the District Court of another district. (2) ........................................ .................... (3) Any Court to which a suit, appeal or proceeding is transferred under the preceding subsections, shall, notwithstanding any thing contained in this Act, have the jurisdiction to dispose it of in the manner as if it were instituted or filed before it. The question therefore that arises is whether in view of the provisions of section 25 read with section 9 of the Guardians and Wards Act a case can be transferred from one Court to another where the question of jurisdiction to entertain the application is under adjudication.

3. The learned counsel for the petitioner has relied on Dr. Rauf Ahmad v. Mst. Razia Farhat (P L D 1971 Kar. 897). This was a reference from the Civil Judge, First Class, Quetta under section 14 of the Guardians and Wards Act pointing out that two cases relating to the guardianship of minors were pending in two different places i.e. Quetta and Karachi, and an order was sought from the High Court for choosing one of the places for the disposal of the applications. It was observed in this case that in so far as the trend of the Laws of Family Courts is concerned it favours the wife because she is entitled according to rule 6 to commence proceedings against the husband at the place where she resides with res pect to the recovery of dower and dissolution of marriage. As against the convenience of the mother rule 9 of the Guardians and Wards Act read with section 25 of the Family Courts Act was set up in order to show that it should be tried at a place where the minors are actually resid ing. Prima facie this contention was held to be sound but not followed as it was a reference under section

14. The relevant observations are quoted below :- "In reply to this Mr. Habibur Rehman has referred to section 9 of the Guardians and Wards Act and section 25 of the Family Courts Act. According to section 9, an application for the guardianship of the person of a minor is to be made to the District Court having jurisdiction in the place where the minor ordinarily resides and according to section 25 of the Family Courts Act a Family Court is to be deemed a District Court for purposes of Guardians and Wards Act, 1890, and notwith standing contained in the Family Courts Act is empowered to deal with the matters specified in the Guardians and Wards Act. It is unnecessary to discuss the question of jurisdiction in these proceedings because this is a reference under section 14 of the Guardians and Wards Act." The choice out of the two places in the above-referred case was made on the basis of convenience. This decision, therefore, is not a reply to the ques tion under examination. The learned counsel for the petitioner has also cited Mukhtaran v. Muhammad Alamgir (P L D 1970 Lah. 52). This case is also of no avail to the petitioner as this was a transfer application under section 24 of the Civil Procedure Code and convenience of the petitioner being a parda nashin lady was kept in view for transferring a suit for the grant of per petual injunction. The learned counsel also cited Mst. Irshad Bibi v. Bashir Ahmad (P L D 1978 Lah. 518). In this case the wording of section 25-A of the West Pakistan Family Courts Act. 1964 were compared with S. 24 of the Civil Procedure Code and the effect of the deliberate omission of word `pending' as appeared in section 24 of the Civil Procedure Code was exa mined. It was observed that subsection (3) of section 25-A confers powers on transfer the transferee Courts to try even cases where jurisdiction and competence of trial Court had been challenged. This was a case relating to the transfer of the suit for restitution of conjugal rights filed by husband and in view of convenience and apprehension expressed by the wife was transferred to a place where the wife had instituted her own case against the husband. The principle laid in Mst. Razia Shafi v. Major M. S. Malik (P L D 1971 $ C 247) that no case could be transferred unless it was validly pending before the Court from which it could be transferred was also taken into consideration in the light of the provisions of section 25-A of the West Pakistan Family Courts Act. The observations in Mst. Irshad Bibi's case are quoted below "The comparison of the two provisions would show that the Legislature, in its wisdom, while enacting - section 25-A of the Family Courts Act, has intentionally omitted to use the word, 'pending' in clauses (a) and (b) of the said section which otherwise is pari " materla with section 24, C. P. C. It can be legitimately presumed that the language of the two provisions being generally similar, it is quite possible that when enacting section 25-A, the language of section 24 of C. P. C. was kept in view. The Legislature can, in proper cause, be presumed to have known the latest position of the precedent law on the subject of a particular legislation. The question of lack of jurisdiction of a Court as a ground vii-a-vii the competency of the transferring Court, as already noted, has been the subject-matter of considerable case-law. If, despite what has been stated above, the Legislature those to omit the use of the word "pending" in enacting section 2`-A of the Family Courts Act it must be intentional and with the purpose, namely, of widening the scope of transfer proceedings. It is legitimate further to presume that it was in view of the interpretation in several rulings of the language used in section 24, C. P. C. that the Legislature though it fits not only to exclude the use of word "pending" but also to add subsection (3) a new provision in section 25-A. The clear purpose was to confer powers on the transferring and transferee Courts, in those cases as well where the jurisdiction and competency of the Court trying the matter (from which it is sought to be transferred) is challenged in the transfer application. Moreover the Legislature must have kept in view the incalculable harm which could be caused to family set-up in case of conflicting judgments on same issues by different Courts. It appears, a salutary remedial measure has been taken. Thus, in view of this distinguishing feature qua the language used in section 25-A of the Family Courts Act the cases under section 24 of the C. P. C. dealing with the question in issue, would not be appeal Accordingly I, with respect, would treat the ruling in the case of Mst. Razia Shah distinguishable and not attracted." The above judgment and the law as elaborated by Sir. Justice M. A. Zullah (as his Lordship then was) is also not applicable as section 9 of the Guardians and Wards Art and section 25 of the West Pakistan Family Courts Act were not under consideration in that case.

4. In view of the above discussion the provisions of section 9 of the; Guardians and Wards Act read with section 25 of the West Pakistan Family Courts Act will not have the effect of enlarging the scope of section 25-A so as to enable the High Court to transfer a case from one, Court to another and thereby conferring jurisdiction as against section 91 of the Guardians and Wards Act. Subsection (3) of .section 25 of the West Pakistan Family Courts Act calls upon the Judge Family Court to' follow the procedure as laid down in that Act.

5. In view of the above discussion this application cannot be allowed which is hereby dismissed with no order as to costs.

6. The learned counsel for both the parties however, made a request that directions be given to the learned Judge, Family Court to first decide the question of jurisdiction. The request seems to be reasonable. Let the Judge, Family Court, Sahiwal decide the issue No. 1, expeditiously before taking up other issues. Keeping in view the convenience of the petitioner the learned Judge, Family Court, Sahiwal shall fix the case on a day when the evidence of the petitioner is recorded and shall avoid any unnecessary adjournment. K. M. A. Application dismissed.