1988 PLP 2123 (CLC)

‑‑‑Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Petitioner having failed to show that orders concurrently passed by two Courts below were without lawful authority and without jurisdiction‑‑Constitutional petition against such orders being of no substance was dismissed by High Court. Syed Laqa Haider Zaidi with Syed Naghman Haider Zaidi for Petitioner. Khizar Abbas for Respondent No.l. Date of hearing: 17th January, 1988. The petitioner, Muhammad Khalil, has moved this Constitutional petition praying therein that the orders, dated 8‑4‑1986 and 15‑6‑1986 passed by the learned Guardian Judge and the Additional District Judge, Jhang, respectively, may be declared without lawful authority and of no legal consequence and further that the case may be remanded to the learned Additional District Judge for deciding his appeal on merits after hearing the parties.

2. Briefly stated the facts of the case are that the petitioner filed an application in the Court of the learned Guardian Judge, Jhang for his appointment as Guardian of the person as well as of property of the two minors, namely, Intizar Ahmad aged 14 years and Iftikhar Ahmad aged 12 years, residents of Mohallah Budheywala, Jhang. The petitioner is the cousin of the minors. Written statement was filed by the respondent No.1, Ibrahim in the case. The learned Guardian Judge vide his judgment dated 8‑4‑1986 appointed Ibrahim, respondent No.l, as guardian of the person as well as property of the minors. The petitioner having failed before the learned Guardian Judge went in appeal before the learned Additional District Judge who heard and dismissed the same vide his order, dated 15‑6‑1986 on the ground that process fee was not deposited. The petitioner filed an application for restoration of the appeal but the same was also dismissed vide judgment, dated 17‑6‑1986.

3. Learned counsel appearing on behalf of the petitioner has contended that the General Public was not a necessary party in the case and as such there was no necessity to have issued process to them through press as required by the provisions contained in section 11(b) of the Guardians and Wards Act. Learned counsel argued that this omission on the part of the petitioner in not complying with the order of the Court is not fatal. Learned counsel stated that the appeal of the petitioner has not been disposed of on merits and as such a substantial injustice has been done to him. Learned counsel for the respondent forcefully contended that respondent No. 1 is the real paternal‑uncle of the minors and that the petitioner is alleged to be the cousin of the minors and that too is not established on record. It is stated that both the minors are in the custody of the respondent and are very happy with him. It is urged by the learned counsel that despite the fact that the petitioner was served, he did not appear before the learned trial Court. It is submitted that in the appellate Court too the petitioner was so negligent that he did not deposit process fee. The cost of the publication of notice in the press was to be paid by him. He stated that the order passed by the learned appellate Court was wholly justified in law and facts of the case. Learned counsel vehemently submitted that the petitioner has no case whatsoever on merits. He stated that the petitioner cannot compete with respondent No. l because admittedly the respondent is the paternal‑uncle of the minors and that the relationship of the petitioner with the minors is not established on record beyond doubt. This being so the learned counsel stated that the welfare of the minors is properly and effectively being looked after by respondent No. 1.

4. I have heard the learned counsel for the parties and have perused the record very carefully. I find that respondent No.l is the real paternal‑uncle of the two minors. He has correctly been appointed as Guardian of the person as well as, property of the minors. It is in the evidence that the Guardian is looking after the interest of the minors very well and learned counsel for the petitioner has not been able to say anything contrary to the welfare of the minors. Learned counsel for the petitioner contended that the appeal has not been disposed of on merits but when confronted with the situation as to what prejudice has been caused to him, frankly hei was not able to make out his case. Learned counsel for the petitioner could not point out any evidence on record to show that he was in any way connected with the minors. However, he conceded that respondent No.l is the real paternal‑uncle of the minors. Learned counsel for the petitioner was not able to say anything that the welfare of the minors is not being looked after properly by respondent No .l. This is the writ jurisdiction in which the petitioner was not able to show that the impugned orders passed by the respondents H Nos. 2 and 3 are without lawful authority and without jurisdiction.

5. The upshot of the above discussion is that there is no substance in the petition which is accordingly dismissed leaving the parties to bear their own costs. H . B . T . / M‑689 / L Petition dismissed.