1991 PLP 745 (MLD)

(2) The Judge of a District Court may, by order in writing, transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section (1). (3) The Judge of a District Court may at any stage transfer to his own Court or to any officer subordinate to him empowered under subsection (1) any proceeding under this Act pending in the Court of any other such officer. (4) When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purposes of this Act, be deemed to be the Court which appointed or declared the guardian." Therefore, under the Guardians and Wards Act, jurisdiction to decide guardianship matters was conferred upon "the Court" as defined in it. Obviously, it meant the Court of a District Judge or a subordinate Court empowered under section 4-A of the Act by the High Court. This position prevailed till the West Pakistan Family Courts Act, 1964 (Act XXXV of 1964) was enforced on July, 18, 1964. As the preamble to the Act would show, it created special forums for expeditious decision of certain matters specified in the schedule to the Act and conferred exclusive jurisdiction in the new forums regarding matters which initially consisted of six items namely, (1) dissolution of marriage; (2) dower; (3) maintenance; (4) restitution of conjugal rights; (5) custody of children; (6) guardianship. In 1969, jactitation of marriage was also included in the schedule. Section 3 of the Act provided for establishment of Family Courts, section 4 laid down the qualifications for the appointment of the Judge of a Family Court and stated that no person shall be appointed as a Judge of a Family Court unless he is or has been a District Judge, or has been a Senior Civil Judge or Civil Judge, Ist Class, section 5 conferred exclusive jurisdiction on Family Courts to entertain, hear, and adjudicate upon the scheduled matters, section 6 provided for the place of sittings of the Family Courts, section 7 about the manner of institution of suits in the Family Courts. Rest of the sections of the Act except sections 14 and 26 which in the context shall be referred to later, are not material for the purposes of the present case. Section 14 provided for a forum of appeal and section 26 empowered the Government to frame rules under the Act. By Ordinance X of 1966--West Pakistan Family Courts (Amendment) Ordinance, 1966 enforced on 4th April, 1966, section 4 was substituted to read as "No person shall be appointed as a Judge of a Family Court unless he is or has been a District Judge, an Additional District Judge or a Civil Judge". By W.P. Act (1 of 1969), for the words "or a Civil Judge", words "a Civil Judge or a Qazi appointed under the Dastur-ul-Amal Diwani, Riasat Kalat" were substituted. Under section 26 of the Act, Rules commonly known as West Pakistan Family Courts Rules, 1965 were framed by the Government which came in force on November 2, 1965. There are provisions in these Rules, altered from time to time, which throw light and assist for discovering of the forum for trial of guardianship disputes and hearing of appeals from them. Rule 6 provided, that the Court which shall have jurisdiction to try a suit which included an application for the custody of children or guardianship under the Guardians and Wards Act, 1890, in terms of rule 2 (e), will be that within the local limits of which the cause of action wholly or in part arose or where the parties reside or last resided: Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall have also jurisdiction. Rule 7 as originally enacted was as follows:-- "7.--(1) Suits relating to custody of children and guardianship shall be instituted in, and be heard and tried by the Court of the District Judge, but such Court may transfer any such suit to the Court of the Additional District Judge, the Senior Civil Judge, the Civil Judge, First Class or the Civil Judge, First Class (Additional), having jurisdiction as provided in rule 6, and thereupon the Court to which such suit is so transferred shall have jurisdiction to hear and try the same. (2) Suits relating to the custody of children and guardianship shall be instituted, heard and tried in the Court of the Senior Civil Judge, the Civil Judge, First Class, or the Civil Judge, First Class (Additional), having jurisdiction as provided in rule 6 and where in any District there is no such Court, such suits shall be instituted in, and heard and tried by the Court of District Judge. (3) Notwithstanding anything contained in sub-rules (1) and (2), the Court of District Judge may-- (a) recall any suit made over by it for trial under sub-rule (1) to an Additional District Judge, Senior Civil Judge, Civil Judge, First Class or Civil Judge, First Class (Additional) and either try such suit himself or refer it for trial to any other Court within the District; (b) send for the record and proceedings of any suit pending for trial in the Court of Additional District Judge, Senior Civil Judge, Civil Judge, First Class, or the Civil Judge, First Class (Additional) and hear and try the suit itself or refer it for trial to any other Court within the District and thereupon the District Judge or the Court to which such suit is so transferred, as the case may be, shall have jurisdiction to hear and try the suit:' Interpreting the rule in the form then existing, in case of Mst. Hayat Khatoon versus Allah Dino and another 1985 CLC 1343, Nasir Aslam Zahid, J. in para. 5 of the judgment observed:-- "In my view, the provisions of law are reasonably clear and there appears to be no ambiguity. As observed earlier, the power was with the Government to establish the Family Courts. In accordance with this power, by rule 3 of the West Pakistan Family Courts Rules, 1965, it was provided that Courts of District Judge, Additional District Judge and Civil Judge, shall be the Family Courts for the purposes of the Act but subject to the provisions of rule

7. And, as seen earlier, rule 7 specifically provides that suits relating to custody of children and for guardianship shall be instituted in and to be heard and tried by the Court of the District Judge but the District Judge may transfer any such suit to a Family Court presided over by an Additional District Judge or a Civil Judge. Reading rules 3 and 7 together with section 2 (1) (b) and section 3 it follows that a family suit for custody of children must be instituted in the Court of District Judge who can then transfer the case to an Additional District Judge or Civil Judge having Jurisdiction under rule 5 (it should be rule 6). Mr. A.A. Dareshani is, therefore, correct in his contention that the family suit under section 25 of the Guardians and Wards Act was wrongly instituted by respondent No.1 in the Court of Civil Judge, Kandiaro. It should have been instituted in the Court of District Judge, Nawabshah who could then transfer the case to a Court having jurisdiction under rule 5 of the West Pakistan Family Courts Rules, 1965." In 1969, rule 7 of the Family Courts Rules, 1965 was substituted in a new form to read as follows:-- "7 (1) Suits triable under the Act shall be instituted in, and be heard and tried by the Court of the Civil Judge having jurisdiction as provided in rule 6, and where in any District there is no such Court, such suits shall be instituted in, and be heard and tried by the Court of the District Judge or the Additional District Judge. (2) Notwithstanding anything contained in sub-rule (1), the Court of the District Judge may send for the record and proceedings of any suit pending for trial in any Court in the District and hear and try the suit itself or refer it for trial to any other Court within the District, and thereupon the Court of District Judge or the Court to which such suit is so transferred, as the case may be, shall have jurisdiction to hear and try the suit." In Janat Bibi v. Ramzan & another NLR 1980 Civil BJ 100, Muhammad Amin Butt, J., interpreted the amended rule to hold that a Civil Judge was competent to try the guardianship case. After quoting the substituted rule, it was observed in that judgment:-- "A bare reading of the above rule would show that the Civil Judge Minchinabad had the jurisdiction to try the present case as the petition was instituted on 4-2-1978.

6. Section 25 of the West Pakistan Family Courts Act, 1964 provides that a Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890. The section further provides that in dealing with the matters specified in the Guardians and Wards Act the Family Court shall follow the procedure prescribed in that Act. Thus the powers and functions of the District Court under the Guardians and Wards Act ought .to be performed by the Family Court which by fiction of law is to be deemed to be the District Court.

7. Faced with this situation the learned counsel for the petitioner was unable to advance any argument in support of his attack on the powers of the learned Civil Judge, Minchinabad who was entitled to exercise jurisdiction of the Family Court under `the provisions of rule 7 as amended." By Gazette of Punjab, Extraordinary 7th April 1972, sub-rule (2) of rule 7 was deleted and sub-rule (1) of rule 7 was re-numbered as rule

7. By the same gazette notification, rules 8 and 9 of 1965 Rules were deleted: In Asif Mowjee versus Mst. Fatema A. Mowjee and another PLD 1987 Karachi 239, Mr. Justice Abdul Qadeer Chaudhry, now an Honourable Judge of the Supreme Court, on comparison of the provisions in the related Acts observed:-- "In order to appreciate the respective contentions of the parties it is necessary to refer; to the various provisions of the two relevant laws. Section 5 of the Act of 1.964 provides that the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in the Schedule. Item numbers 5 and 6 of the Schedule relate to the custody of children and guardianship respectively. Section 25 of the same Act stipulates that a Family Court shall be deemed to be a District Court for the purposes of the Act of 1890 and notwithstanding anything contained in this Act (Act of 1890) shall in dealing with the matters specified in that Act, follow the procedure prescribed in that Act. The Court has been defined in section 4 (5) (b) (ii) of the Act of 1890 as under: "In any matter relating to the person of the ward, the District Court having jurisdiction in the place where the ward for the time being ordinarily resides." Under section 7 of Act of 1890 the welfare of the minor would be the paramount consideration in appointing a guardian of his person or property. Under section 17 of the same Act the Court would consider certain facts in appointing a guardian. According to section 19 the Court would not appoint guardian in certain cases. Under section 25 if a ward leaves or is removed from the custody of a guardian of his person the Court may return the ward to the custody of his guardian if it is of the opinion that it may be in the welfare of the minor. Schedule to Act of 1964 has mentioned custody of minor and guardianship of minor distinctly. There are two different items. Every expression or word of a statute has to be interpreted in its ordinary sense and no word of the statute shall be considered as superfluous. Rule 6 has to be interpreted in a sense which is in consonance with the provisions of the Act. In my view in the matter of the custody of the minor an application is maintainable at a place where cause of action has arisen. Such an application can also be moved in a place where the minor ordinarily resides. As regards guardianship application, an application would be maintainable only in a Court where the minor ordinarily resides. By means of section 25 of the Act of 1964 residence of the minor would give the Court jurisdiction to adjudicate upon the matter:' I have quoted this judgment merely to show that a distinction about the forum for the trial in matters relating to the appointment of a guardian for the person and property has been drawn in it. Otherwise, rule 6 of 1965 Rules looked to be all pervasive and did not ex facie admit of such a distinction. The position as it emerges from the survey of the related provisions of the two Acts; Guardians and Wards Act 1890, Family Courts Act 1964 and Family Courts Rules 1965 as amended up to date, was that the application under section 25 of the Guardians and Wards Act, 1890 was rightly instituted in the Court of Senior Civil Judge and correctly transferred by him to the Civil Judge who heard and finally decided it. Unfortunately, and I speak with immense respects, Family Courts Rules which governed the forum had not been taken into account in the judgment of my esteemed brother which proceeded on sole consideration of section 4-A of the Guardians and Wards Act. In my opinion, rules 6 and 7 of the Family Courts Rules 1965 made all the difference which escaped notice in the aforesaid judgment. It is in this view that I respectfully differ from my learned brother and hold that as Civil Judge, Ist Class, the trial Court was competent to try the application under section 25 of the Guardians and Wards Act 1890 and its decision did not suffer from defect of jurisdiction. On merits, I have already said that it is a correct decision. Reverting to the objection about the competence of Additional District Judge to hear the appeal, there is no ambiguity about his jurisdiction because section 14 of the Family Courts Act is absolutely clear on this point. For facility of reference, it is reproduced:- "

14. Appeal. (1,) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable-- (a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge, or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge, and (b) to the District Court, in any other case. (2) No appeal shall lie from a decree passed by a Family Court-- (a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section (2) of the Dissolution of Muslim Marriages Act, 1939. (b) for dower not exceeding rupees one thousand; (c) for maintenance of rupees twenty-five or less per month." In terms of section 14 of the Family Courts Act, in case of a decision or a decree passed by a Family Court presided over by a Civil Judge, appeal lies to the 'District Court'. Section 2 (21) of the Punjab General Clauses Act 1956 says that "District Court" shall mean the principal Civil Court of original civil jurisdiction of a district; but shall not include the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. Section 2 (2) defines "District Judge" to mean "the Judge of a principal Civil Court of original jurisdiction, but shall not include the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction". Under section 2 (4) Civil P.C., a District Court is defined as the principal Civil Court of original jurisdiction in the District. Section 5 of the Civil Courts Ordinance 1962 empowered the Government in consultation with the High Court to appoint as many persons as it thinks necessary to be the District Judges and post a District Judge to each District. Section 6 of the Ordinance deals with the appointment of Additional District Judges and in subsection (2) says that an Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him and in discharge of those functions he shall exercise the same powers as the District Judge. From this, it is clear that a District Judge can transfer any case pending before him to an Additional District Judge who shall then have the same powers in regard to it as the District Judge. According to definitions in section 2 of the Family Courts Act, expression `District Court' as defined in section 2 (4) of Civil Procedure Code has been adopted for purposes of the Act. It is not correct to state that learned District Judge had no jurisdiction to assign the appeal to learned Additional District Judge and the latter had no power to hear and decide it. Therefore, his decision, did not suffer from want of jurisdiction. Having regard to the above, writ petition fails and is dismissed in limine. At the end, I must observe that ordinarily judgment of a single Judge must be taken as binding by a brother Judge sitting singly so as to avoid conflict of opinion in the High Court and confusion in the subordinate Courts whose duty is to follow what is said and observed by the High Court. In course of hearing of the writ petition, as I was differing with my learned brother, on a point of law decided by him, I thought, I should refer the case to a larger Bench for an authoritative pronouncement on it, but since my learned brother had not taken into account rules 6 and 7 of the Family Courts Rules, 1965 in deciding on the powers of a Civil Judge, Ist Class to hear guardianship matters, which in my opinion made all the difference, upon reflection, I dropped the idea for a reference to a larger Bench and opted to decide the point myself. M.B.A./S-839/L. Petition dismissed.