P L D 1965 (W (PLP)

(a) Civil Procedure Code (V of 1908), Ss. 114 & 151 and O. XLVII, r. 1‑Review‑Substantive right‑Not available unless expressly conferred by statute‑No Court has inherent power to review its own order‑Constitution of Pakistan (1962), Art.

130. Jalal Din v. Major Muhammad Akram Khan P L D 1963 Lah. 596; In re: Prdhlad Krishana Kurne A I R 1951 Bom. 25 and Hajee Suleman v. custodian, Evacuee Property A I R 1955 M B 108 ref. (b) Guardians and Wards Act (VIII of 1890), S. 48 read with Civil Procedure Code (V of 1908), S. 141 and O. XLVII, r. 1‑Provisions of Civil Procedure Code creating certain substantive rights, e.g., right of appeal or review‑Not ipso facto applicable in similar proceedings in all civil Courts‑Proceedings before Guardian Judge‑Proceedings in Court of civil jurisdiction Guardian Judge, nevertheless, has no jurisdiction to review his own order. (c) Guardians and wards. Act (VIII of 1890), S. 48‑Review Not competent. Sonba v. Narayan A I R 1924 Nag. 260 and Sultan Singh v. Hashmat Ullah and others 109 P R 1915 distinguished. Farid v. Mitho 143 P R 1906; Ralla v. Mst. Manglan 116 P R 1912 and Mst. Sharfan v. Mst. Bholi and others A I R 1922 Lah. 395 ref. (d) Civil Procedure Code (V of 1908)‑

Provisions cannot override those of special enactment. (e) Civil Procedure Code (V of 1908), S. 141‑Provisions not applicable to substantive rights like right of appeal or review. (f) Guardians and Wards Act (VIII of 1890), S. 9 Application for guardianship of person and property of minor Minor, having immovable property within jurisdiction of Court but ordinarily residing outside its territorial limit‑Court cannot assume Jurisdiction, in such case, to deal with application as regards guardianship of person of minor. The respondent Mst. Bhano, is paternal grand‑mother of Mst. Zubeda Bibi the minor. She applied in the Court of Guardian Judge at Lyallpur for appointment of the guardian of the person and property of the minor. Khan Muhammad Siddiq Ahmad Khan, the learned Guardian Judge, ordered the return of the petition on the ground that he had no jurisdiction in the case by holding that the minor neither resided within his jurisdiction nor did she own any property there. The respondent moved a review petition against the order alleging that the minor, in fact, owned property within the jurisdiction of the Court. The review petition was accepted by an order, dated the 16th of December 1963, and the learned Guardian Judge assumed jurisdiction in the case. Mst. Maqsoodan, the mother of the minor, has applied to this Court invoking its revisional jurisdiction to have the order of the learned Guardian Judge quashed on the ground that he had no jurisdiction to review his earlier order.

2. The first question which falls for determination is whether an alder passed under the Guardians and Wards Act can be reviewed. The power of the High Court to interfere with the orders of the lower Court in its revisional jurisdiction is preserved in section 48, which reads as under:‑ "

48. Save as provided by the last foregoing section and by section 622 of the Code of Civil Procedure, an order made under this Act shall be final and shall not be liable to be contested by suit or otherwise:" This section attaches finality to orders made under this Act except when they can be challenged either by way of appeal under section 47 or by way of revision under section 115, C. P. C. This section is intended to indicate that once an order is made it shall not be contested by a substantive suitor by any other form or litigation, save as provided therein. The Legislature has expressed its intention without any ambiguity and it clearly meant to give finality to the orders passed under the Act 'except that they could be challenged in appeal or revision. The right of review is like a right of an appeal‑a substantive right, an it is not available unless it is expressly conferred by a statute No such right is conferred by the Guardians and Wards Act. I appears that the Legislature did not intend to give such a right because otherwise it would have been included in section

48. The absence of reference to review in the section leaves no doubt whatsoever that the power of the Courts to review their orders was excluded by necessary intendment. The learned counsel for the respondent, however, referred to Sonba v. Warayan (A I R 1924 Nag. 260), to contend that a Court under the Guardian and Wards Act could review its own order. This decision can be of no assistance to him for the reason that the relevant provisions of law were not considered and discussed in the case. No reference was made to section 48 of the Act which attached finality to orders under the Act, except when they can be challenged either by way of appeal or by way of revision under section 47 .of the Act or under section 115, C. P. C. Reliance was placed in this judgment on Sultan Singh v. Hashmat Ullah and others (109 P R 1915). The Guardian Judge in that case cancelled the sale of the property of the minor and it was held that even if the Guardian Judge had given the sanction under sections 29 and 31 (1) it was not beyond the power of that Court to intervene and stop the same if it found something detrimental to the ward's interest. The question whether the Court had the power of review under the Act was not at all considered.

3. Relying on section 141, C. P. C., it was next argued that the orders passed by a Guardian Judge can be reviewed under section 114, read with Order XLVII, rule 1, C. P. C. It is specifically provided in section 141, .C. P. C. that the procedure provided in this Code in regard to suits shall be followed, so far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. There can be no denying the fact that the Guardian Court is a Court of civil jurisdiction and a proceeding under the Guardians and Wards Act is a proceeding in the Curt of civil jurisdiction. The Code undoubtedly applies to the procedure of all Courts of civil jurisdiction. The provisions of the Code, therefore, will be applicable to regulate the procedure of a Guardian Court. This provision, however, cannot be pressed into service to say that where the Code has created certain substantive rights like the right of an appeal or review, the same also became applicable in similar proceedings in all Courts of civil jurisdiction. The right of an appeal or review is a substantive right and not a mere right of procedure. Thus section 141, P. P. C. is not applicable in this case, and the provisions of the Code providing for an appeal or review are not attracted to proceedings under the Guardians and Ward: Act.

4. The case may be viewed from another angle as well The C. P. C. is a law of general application. It cannot override the express provisions of a special Act. The right of a party to seek review is clearly excluded by the Guardians and Wards Act The provisions of the Code have to be controlled by those in special enactments and in that view of the matter also the provisions of section 114 or Order XLVII, C. P. C. providing for review are not applicable to cases under the Act. The precise matter was considered in Farid v. Mitho (143 P R 1906) and it was held that an order made by a District Judge under section 7 of the Guardians and Wards Act refusing to appoint a guardian was not open to review, and that section 623 (it is like section 114, read with Order XLVII), C. P. C., which deals with reviews of judgments, had no application to the proceedings under the Guardians and Wards Act. Interpreting section 48 of the Guardians and Wards Act, it was observed in the judgment that the words of‑ the section are clear and unambiguous and in face of those specific provisions, the general provision of section 647 (it is like section 141) C. P. C., which only applies to proceedings other than suits and appeals, could not detract from the stringency of the rule laid down in section 48 of Act VIII of 1890. In this judgment it was not noticed that section 647 (which is: like section 141), C. P. C. in its very nature did not apply to substantive rights like the right of appeal or a review. In Ralla v. Mst. Manglan (116 P R 1912) it was held that section 114, C. P. C., providing power to review does not apply to the Guardians and Wards Act. In Mst. Sharfan v. Mst. Bholi and others (A I R 1922 Lah. 395), it was held that it was not competent for the Subordinate Judge to review his order of appointment of the guardian of the minor. It would thus be clear that no power of review existed in the learned Guardian Judge to have set aside his earlier order dated the 16th of November 1962.

4. It was next argued that the Guardian Judge could pass the impugned order in the exercise of his inherent jurisdiction. There is no provision in the Guardians and Wards Act enabling the Court to exercise an inherent jurisdiction. Under Article 13 of the Constitution a Court can exercise only a jurisdiction which is conferred on it either by Constitution or law. There being no such power conferred on the Guardian Court, it cannot exercise any inherent jurisdiction. The same question came up for consideration in Jalal Din v. Major Muhammad Akram Khan (P L D 1963 Lah. 596) where their Lordships of the Full Bench, repelling the contention that the power to review should be regarded as inherent in the Court held that this argument was no longer available in view of clear provisions of Article 130 of the Constitution which prohibits the Courts to exercise any jurisdiction which is not vested in them either by the Constitution or by law. Their Lordships therefore, observed that "unless it is provided that an order once made may be reviewed, it would not normally be capable of being reviewed". The case before the Full Bench was whether the High Court can review its order passed in the exercise of the writ jurisdiction. It was held that since the power was not specifically given to them in this behalf, they had no authority to review their own orders. Reference in this behalf may also be made to a foreign judgment, In re: Prahlad Krishana Kurne (A I R 1951 Bom. 25) where it was held: "Therefore, when Dixit and Shah, JJ. rejected the application of the applicant pn 12‑6‑1950, it was the decision of the High Court, and the question is whether it is open to the applicant to approach any other Judge of the High Court for a similar purpose notwithstanding the decision of the High Court to be contrary. When one analyses the situation, the effect of the argument of the applicant comes to this that the decision of the High Court on an application for a writ for the enforce ment of the fundamental rights under Article 226 is subject to review by the High Court. It is clear that no Court has an inherent power of review. A power of review' like a power of appeal must be conferred by statute. As far as the Criminal Procedure Code is concerned, no power of review is given to the High Court in criminal matters, and there is nothing in Article 226 which would induce us to hold that the Constitution has conferred a power upon the High Court of review in matters falling under that Article." The same view was taken in another foreign judgment, Hajee Suleman v. Custodian, Evacuee Property (A I R 1955 M B 108). 1 am, therefore, of the view that since there is no provision in the Guardians and Wards Act for the review of the orders passed under that Act, the Court after passing an order under the Act becomes functu officio. The order so passed assumes finality under section 48 of the Guardians and Wards Act and cannot be reviewed by the same Court.

5. There is another aspect of the case also. The parties admitted before me that the minor ordinarily resides within the jurisdiction of the Guardian Court at Sargodha and that she has immovable property within the jurisdiction of the Courts at Lyallpur. The respondent applied both for the guardianship of the person and property of the minor before the Guardian Judge at Lyallpur. Under section 9 of the Act the only Court competent to assume jurisdiction for the appointment of guardian of the reason of the minor was the Court at Sargodha. The Court at Lyallpur had no jurisdiction whatsoever in this behalf. So far as the guardianship of the property is concerned, an application could be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. Such an application, therefore, could be made both at Sargodha or at Lyallpur. The learned Guardian Judge accepted the review petition and assumed jurisdiction to deal with the application for the appointment of guardian both of the person and property o the minor. He, of course, could not do so. His order to the extent it related to the application of the‑ respondent for the appointment of guardian of the person of the minor is clear without jurisdiction. No action, however, is called for in this respect for the reason that I have already held that the order passed by the Guardian Judge reviewing his earlier order is without jurisdiction.

6. In the view of the matter I take, the order, dated the 16th of December, 1963, is set aside. It will be open for the respondent to take his petition back from the Guardian Judge at Lyallpur and present it to the Court of competent jurisdiction. The petition is accordingly accepted, but there shall be no order as to costs. K. B. A. Petition accepted.