P L D 1967 Lahore 977 (PLP)

QADEERUDDIN AHMED, J.‑The petitioner has questioned two orders. One of them is by the Guardian Judge First Class, Lahore, dated the 7th of June 1966, by which he dismissed the application made by her under sections 5 and 25 of the West Pakistan Family Courts Act, 1964, and the other is by the District Judge, Lahore, dated the 13th of July 1966 by which he dismissed her appeal. The facts of the case have created an impression on our minds that this is a fight between two unequal parties, and also that the impugned orders are far from being sound. We wish to be absolutely fair to the respondents, two of whom have made the orders in favour of the other two; therefore, would give the background mostly by quoting from the orders.

2. The facts, briefly stated, are that the petitioner was married to respondent No. 3 in 1956, and gave birth to four daughters whose ages were stated by her in her above‑mentioned application to be 9 years, 71/2 years, 5 years and 2 years. Further facts stated by her in that application can be narrated in the words of the Guardian Judge, as follows:‑ "Begum and Sir Khizar visited the States in 1964 where the youngest daughter was born. The petitioner, Begum Zainab Tiwana, was sent back to Pakistan with all the four children in advance, while Sir Khizar Hayat Khan himself arrived here in July 1964. However, the respondent, Sir Khizar Hayat Khan Tiwana took an indifferent attitude towards the petitioner and the children. He even took up separate residence. The petitioner felt that she and her children were not safe at Lahore so she removed herself and the children to Karachi. The respondent got a case registered through his Private Secretary, Malik Ghulam Muhammad, respondent No. 2 (i.e. respondent No. 4 in the petition) against the petitioner under section 363/380/406, P. P. C. The children were recovered by the police from her custody, produced before Cantonment Magistrate who gave their custody to the principal respondent, Malik Sir Khizar Hayat Khan Tiwana. The petitioner sought return of the custody of the minor daughters, till attainment of puberty, as their lawful guardian. The petitioner disclosed in the petition that she had brought a petition under section 491 of Criminal Procedure Code in the High Court which had been dismissed on 25‑6‑

65. It was further disclosed that the petitioner had earlier brought an application for custody of these minors in the Court of the Guardian Judge. However, she could not pursue that petition properly on account of threats and juicy promises held out by the respondent. That petition was dismissed in default in September 1965".

3. The defences taken by respondents Nos. 3 and 4 can also be summarised in the language of the learned Guardian Judge, as follows:‑ " Sir Khizar Hayat Khan Tiwana and his Secretary filed separate replies to the main petition as well as the application for temporary custody. These replies are well‑documented. In these written statements, the respondents have disclosed that petitioner had fallen on evil ways, had come to possess a disreputable character and was altogether unfit to have custody of the minors. The respondents have given hints of a number of faux pas committed by the petitioner and have supported these scandals by scores of documents."

4. Her application was not tried on merits, but was dealt with, in the language of the learned Guardian Judge, as follows: "It is unnecessary to make a detailed reference to these allegations and supporting evidence because this case is supposed to be short‑circuited on a technical ground. The respondents pleaded in the written statements that the present petition was barred by the principle of res judicata as a similar petition had been dismissed earlier on 9‑9‑1965. Formal issue on this point was framed on 5‑5‑66, which runs as follows: `Is this application barred by any previous application?"' The Guardian Judge found that it was barred by Order IX, rule 9, C. P. C., because he came to the following conclusion: "I find the framework of the old petition is identical with that of the present petition. According to both the petitions, the parties began to pull apart after their return from abroad in 1964. Both the petitions have reference to the complaint lodged by Sir Khizar Hayat Khan Tiwana; recovery of children by police and their restoration to the father. Thus the subject‑matter of both the petitions is same and co‑extensive. After the petition of 23‑6‑65, the parties were reunited and the children were never turned over to the mother. Thus nothing new happened after the dismissal of the old petition, which could give a new cause of action to the mother." He found support for this view in Sharaf Jahan Begum v. Yaqub Ali (A I R 1947 Lah. 409). Additionally he held that the West Pakistan Family Courts Act, 1964 did not create new rights because it merely prescribed a simplified procedure and introduced new forums for settlement of certain civil disputes. He held that it did "not revive dead causes".

5. The learned District Judge has observed as the Appellate Court that: "The finding of the lower Court that the subsequent petition as well as the previous petition were substantially the same, has not been challenged in appeal before me, and the only point which has been urged before me is that the lower Court has erred in coming to a conclusion that the subsequent petition for the restoration of the minors to the lawful guardian is barred." He has noted the contentions raised on behalf of the present petitioner that section 17 of the West Pakistan Family Courts Act, 1964 has made Order IX, rule 9, C. P. C. inapplicable to the proceedings held before the Family Courts, and that proper custody of wards was a running cause of action; but has rejected them on the ground that they were advanced in disregard "of the provisions of section 25 of the West Pakistan Family Courts Act and section 25 of the Guardians and Wards Act, Section 25 of the Family Courts Act lays down that notwith standing anything contained in this Act the Family Court shall, in dealing with matters specified in the Guardians and Wards Act follow the procedure prescribed in that Act. Now in view of the above provisions as laid down in the Family Courts Act we have to refer to section 25 of the Guardians and Wards Act which deals with the title of the guardian to the custody of the ward. It lays down that if a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purposes of enforcing the order, may cause the ward to be arrested and to be delivered into the custody of the guardian. In view of the above provisions it is clear that a guardian has a cause of action to move the Court for the restoration of the custody of the minor only if a ward leaves or is removed from the custody of a guardian of his person. Thus the cause of action for maintaining an application under section 25 of the Guardians and Wards Act accrues to the guardian if a ward leaves or is removed from his custody and not otherwise." He has applied the above proposition to this case on the ground that here a cause of action had arisen when the minors were originally removed from the custody of the petitioner, that it was utilised by making an application for the restoration of their custody under the Guardians and Wards Act, 1890, but the application was dismissed for default, and no steps were taken to get it restored. The order of dismissal was, in these circum stances, to be treated as final under Order IX, rule 9, C. P. C. as long as it was not set aside. In this context, a fresh application made under the West Pakistan Family Courts Act, 1964, which is the succeeding Act, could "not in any way affect the finality of the order made under the law which was in existence before the commencement of the Family Courts Act . . . . . unless a fresh cause of action" accrued. Such a cause of action, according to him, for purposes of section 25 of the Guardians and Wards Act, 1890, could only be a fresh "removal of the ward from the custody of the guardian".

6. The petitioner has questioned the above‑mentioned two orders in this petition, under Article 98 of the Constitution. The grounds in support of her contention that they were made without lawful authority and are of no legal effect are set out in paragraph 7 of the petition. The sixth ground is noteworthy. It is as follows:‑ "That denial by respondent No. 3 to restore the custody to the present petitioner itself creates a new cause of action and there is no estoppel in the way of present petitioner to bring a fresh petition under the West Pakistan Family Courts Act."

7. The reply of respondents Nos. 3 and 4 to the entire paragraph consisting of ten grounds is as follows:‑ "That the reasoning embodied in this para. whereby it has been contended that the orders passed by the Family Court and the District Judge are without lawful authority, etc. is untenable. The impugned judicial orders passed by the respondent Courts are with lawful authority. These have been passed with jurisdiction. The conclusions on facts and law reached by the respondent Courts are correct and they did not suffer from any infirmity of the kind which might attract interference by the High Court under Article 98 of the Constitution."

8. We should point out here that neither the refusal of respondent No. 3 to restore the custody of the minors, nor the allegation that it constitutes a fresh cause of action has been questioned by the respondents. The reply reproduced above shows that the defence to all the ten grounds is that the orders were made in exercise of a vested jurisdiction and that they do not suffer from any such infirmity as might attract the provisions of Article 98 of the Constitution. We shall examine this argument presently, but before doing so would like to deal with the points of view which have prevailed in the impugned orders, because they have been pressed before us.

9. The arguments on which the above‑mentioned two orders are based can be summarised as follows: (i) According to the Guardian Judge, the "framework" of the first and second applications of the petitioner for the custody of the minors is identical because there is no allegation that the husband and wife had reunited, or that the children had gone back to the custody of the petitioner ; therefore, mere repetition of the old story of loss of custody does not constitute a new cause of action. According to the Appellate Court, the finding of the Guardian Judge that the two applications were "substantially" the same was not challenged before him; therefore, the question as to whether a fresh cause of action was or was not disclosed in it did not arise. He held that the second application for the custody of minors was not maintainable because there was no allegation in it that a fresh cause of action had accrued to the petitioner by virtue of afresh removal of the wards from her custody. (ii) According to the Guardian Judge, the second application would have been "indisputably barred" under Order IX, rule 9, C. P. C., as held in Sharaf Jahan Begum v. Yaqub Ali A I R 1947 Lah. 409 if it was made at a time when the Guardians and Wards Act, 1890, was in force. This position did not change by virtue of the enactment of the West Pakistan Family Courts Act, 1964, because the latter Act has made no change in substantive law. The District Judge has agreed with the Guardian Judge that the second application was barred by Order IX rule 9, C. P. C., as held in the Lahore case; (iii) According to the District Judge, the inapplicability of the Evidence Act, 1872, and the Code of Civil Procedure, 1908, in terms of section 17 of the West Pakistan Family Courts Act, 1964 has made no difference to the bar that was created by Order IX, rule 9, C. P. C., because section 25 of the Guardians and Wards Act, 1890, and section 25 of the West Pakistan Family Courts Act, 1964, taken together leave no doubt that the procedure of the former Act is still to be followed. This, according to him, means that the cause of action for applying for the restoration of a ward accrues only when he leaves or is removed from the custody of a guardian of his person, and not otherwise. The cause of action which arose in this case having been utilised by the previous application which was dismissed, the new Act cannot affect the finality of that order so long as it remains in force.

10. Lot us make a note here that neither Court has paid any attention to the plea of the petitioner which, in the words; of the Guardian Judge, was that the petitioner "could not pursue" her previous petition "on account of threats and juicy promises held out by the respondent". It is not easy to understand as to why they could not envisage that if the plea amounted to allegations of coercion and fraud and was entertain-able as well as correct, then it meant more than a mere denial of her default in pursuing the former application and had the potentials of furnishing an independent answer to the defence of Order IX, rule 9, C. P. C. (See Grindlay's Bank Ltd. v. Murree Brewery Co. Ltd. (P L D 1954 Lah. 745), Copies of her application and the replies to it have been placed on this record by respondents Nos. 3 and

4. They show that there is no explicit denial of threats and promises. The omission of the two Courts in not dealing with this aspect is itself adequate for treating their orders as without legal authority and of no legal effect.

11. The three grounds on which the Guardian Judge and the appellate Court have declined to give relief to the petitioner are basically wrong. Firstly, a reunion of husband and wife or fresh removal of a ward from rightful custody is not necessary to attract the provisions of section 25 of the Guardians and Wards Act, 1890. All that is necessary for that purpose is that a ward should leave or be removed from the custody of a guardian in person; thereafter, his restoration to rightful custody is controlled by considerations of his welfare with an initial, or prima facie, preference for his custody with the guardian of his person. The cause of action continues to exist so long as his custody is not with somebody in conformity with considerations of his welfare. Illegal detention or refusal to hand over a ward and, in proper cases, even repudiation of the guardian's right to actual custody warrants action under section 25 of the Guardians and Wards Act, 1890. See: Mohideen Ibrahim v. Md. Ibrahim (A I R 1917 Mad. 612), Raghavaiya v. Lakshmiah (A I R 1925 Mad. 398), Mst. Ulfat Bibi v. Bafati (A I R 1927 All. 581), Kokara Tatamma v. Marina Veeraaya (A I R 1930 Mad. 19), Mst. Siddigun Nisa v. Nizamuddin (A I R 1932 All. 215) and Mst. Sheokumari v. Zathura Ram (A I R 1936 All. 267).

12. Secondly, ft is wrong that the application of the petitioner was "indisputably barred" under the Guardians and Wards Act, 1890 either on the ground that there was no reunion of the husband and wife or no fresh removal of the wards from the custody of the petitioner took place; or on the ground that the provisions of Order IX, rule 9, C. P. C. were to the way. As explained above, no reunion or fresh removal was necessary; nor was Order IX, rule 9, C. P. C. in the way because the detention of the children and denial of the petitioner's right to C the custody of the children combined with considerations of their welfare provided a recurring cause of action; and Order IX, rule 9, C. P. C., has no application when a running, recurring or continuing cause of action is created as, for instance, by continuous trespass: See Hing Raj v. Raja Bhagwati Bux (A I R 1952 All. 427) and by continuous joint ownership of property: See Madhura Gramani v. Thummala Sesha Reddi (A I R 1926 Mad. 1018 ) and T. C. Mukerji v. Afzal Beg and others (A I R 1915 All. 1(2)).

13. The Guardian Judge and the District Judge have relied on Sharaf Jahan Begum's case in support of the pro position that an ex parte order in guardianship proceedings cannot be set aside except on the grounds set forth in Order IX, rule 13, C. P. C.; but they have omitted to note the caution embodied at the end of that judgment by the learned Judge, as follows: "It may perhaps be mentioned in passing that nothing herein contained shall be deemed to preclude the father from making a fresh application for the custody of his children if he considers that the interests of the children would be best served by his prayer being accepted."

14. The two Courts ought to have appreciated that guardian ship proceedings are held in exercise of parental jurisdiction which is not a proper branch of law for enforcement of technicalities of pleadings or strict formalities‑‑See Mst. Khundi Devi v. Chhotey Lall (A I R 1922 All. 338). The Guardianship Courts are to keep the welfare of the minors constantly in mind and to act with the object of promoting their interest: See Saraswati Bai v. Sharipad Ved (A I R 1941 Bom. 103) and Muhammad Sadfg v. Wafati (A I R 1948 Oudh 51). The Courts may, in suitable circumstances, at any time change or modify their orders for purposes of better supervision of wards: See Mazhar Ali v. Kulsum (A I R 1940 All. 315) and Nagardas v. Anandrao (I L R 31 Born. 590). Similarly, those who claim the custody of minors cannot do so for satisfying their vanity, nor even to soothe the craving of their love or affection, but ought to do so when it is essentially for the welfare of the minors themselves. This is clear from the trend and language of section 25 of the Guardians and Wards Act, 1890. The "right" of the father or mother or other relatives to the custody of minors when seen in this light is a euphemism for "duty" but is justified because owing to natural feelings of attachment of such relatives to the minors the performance of the duty is a gratifying experience. Moreover, the minors also need that care and affection; their custody with such relatives is a satisfaction of mutual rights and duties. When a guardian is appointed or the custody of a ward is entrusted by a Court to somebody, it is the Court, as the representative of the State, under whose care such a ward is placed: See Tula Ram Marwadi v. Emperor (A I R 1927 Nag. 184). It is the right and duty of the Court to take care of the ward's welfare.

15. Both the Courts have emphasised that there was no new cause of action in the second application, and the Appellate Court has additionally held that the finding of the Guardian Judge that the previous and the subsequent applications were "substantially the same" was not challenged before him, but counsel for the petitioner has drawn our attention to the copies of the two applications which have been produced by respondents Nos. 3 and

4. The previous application, dated 23‑6‑65, contains eight paragraphs, and the subsequent application dated 9‑3‑66, contains ten paragraphs. Paragraph 6 of the second application contains facts which happened after the dismissal of the previous application. It is as follows: "

6. Thereafter petitioner filed an application for custody of her four minor daughters in the Court of Guardian Judge. She, however, also filed an application for interim custody. During the course of trial petitioner was threatened by respondent No. 1 (i.e. respondent No. 3 in this petition) for dire consequence if she kept on pursuing her Guardian case for custody of minor daughters. The petitioner being a woman without any influence and support could not meet his threats. He further advances promises to her that on her giving up the case she could expect reasonable settlement including dropping of criminal case registered against her. She being a weaker sex, lonely deserted and penniless, could not sustain his threats and as such on his oral promises did not put up any defence in the lower Court. (Ultimately the interim application for custody was decided against the present petitioner and application under section 25 was dismissed in default in September 1965). The petitioner is now highly disappointed of the nasty conduct of respondent No. 1 who instead of entering into amicable settlement had further keeping criminal case hanging on her head like the sword of Democles. Now respondent No. 1 is keeping all the four children either at 47, Wellington Mall, Lahore, or get them confined in a village called Kalra, District Sargodha. It is also submitted that respondent No. 1 keeps on moving from one District to another District in connection with his work and ‑minors are left at the mercy of step‑mother who has always been on bad terms with the present petitioner while maltreating the minors even during the subsistence of marriage of the petitioner with respondent No.

1. It is also learnt that respondent No. 1 has contracted another marriage with some foreign lady and as such he has lost all interest in his minor daughters. Further the present petitioner is informed that he will be leaving Pakistan to enjoy his honeymoon abroad."

16. The two learned Judges have failed to apply their minds to the above allegations to find out whether they constitute a different cause of action or not. Their observations in this respect are superficial. As pointed out in Udaram v. Gondu (A I R 1925 Nag. 366): "Where there is even a slight discrepancy arising out of a, single fact amongst the many other facts common to the two causes of action, that single fact alone makes them different. Compare Mahadeo v. Nago 121 C 357." The emphasis laid by the learned District Judge on "substantial" uniformity of the two applications does not indicate due application of his mind to the question of the existence of a fresh cause of action, but this omission was concealed from his view owing to the misdirection of his mind that a fresh removal of the children from the petitioner's custody was necessary.

17. Thirdly, the learned District Judge has held that, in spite of the inapplicability of the Evidence Act, 1872 and of C. P. C., 1908 to the Family Courts in terms of section 17 of the West Pakistan Family Courts Act, 1964, the provisions of C. P. C. should be taken to apply to the proceedings of those Courts because of section 25 of that Act read with section 25 of the Guardians and Wards Act, 1890. The futility of this argument will be clear from a reading of the three sections themselves. They are as follows:‑ Section 17, West Pakistan Family Courts Act, 1964. "(1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872, and of the Code of Civil Procedure, 1908, shall not apply to proceedings before any Family Court. (2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts." Section 25, West Pakistan Family Courts Act, 1964. "A Family Court shall be deemed to be a District Court for the purpose of the Guardians and Wards Act, 1890, and not withstanding anything contained in this Act, shall, in dealing with matters specified in that Act, follow the procedure prescribed in that Act." Section 25, Guardians and Wards Act, 1890. "(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882. (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship." Section 17 of the West Pakistan Family Courts Act, 1964 is obviously intended to implement the following recommendation of the Law Reform Commission of 1958‑59: "In order to provide a cheap and speedy remedy to married women, orphans, sisters and daughters, who are generally handicapped for lack of funds, it appears necessary to set up Special Family Laws Courts, which will not be hidebound by the technicalities of the Civil Procedure Code or the Evidence Act. They should, instead, follow a very much simplified procedure. We agree with the proposal made by the Commission on Marriage and Family Laws, to the effect that the Legislature should lay down a few fundamental principles for the guidance of such Courts and the remaining procedure should be regulated by simple rules to be framed by the High Courts. The object aimed at should be that substantial justice should be ensured to the parties who will have recourse to these Courts and, therefore, there should be a certain amount of flexibility in the procedural rules that shall govern these Courts."

18. Thus the application to the Family Courts of the Evidence Act and C. P. C. has been definitely excluded, but the procedure prescribed "in", not by or under, the Guardians and Wards Act, 1890 has been retained. This situation cannot be so interpreted as to bring C. P. C. again, through a back door, to take its old place in guardianship proceedings. This will, amount to repealing section 17.

19. Mr. Khurshid Ahmed in particular has supported the view that the bar of Order IX, rule 9, C. P. C. applies to this case. He contended, firstly, that an accepted principle of law, in this case applicability of C. P. C. to guardianship proceedings, should not be disturbed unless a contrary intention is unambigu ously and unmistakably expressed in the amending law; secondly, that section 17 is not retrospective, therefore it cannot affect a past and closed transaction and, thirdly that his clients should not be vexed again and again on the same ground. He has cited Subramania v. Namasivaya (A I R 1918 Mad. 162); Lemm v. Mitchell (1912 A C 400); Leach v. Rex (1912 A C 303), Secretary of State v. Bank of India Ltd. (A I R 1938 P C 191) and Craise on Interpretation of Statues, 1963 Ed. at p.

121. None of the three contentions are tenable because the language of section 17 unambiguous and unmistakable. There is no question of retrospective effect because section 17 is sought to be applied to an application which was made after the law was enforced and" there is no question of vexing anybody again and again on any one ground because the cause of action is recurring.

20. Lastly, we advert to the contention of counsel fore respondents Nos. 3 and 4 that the impugned orders suffer from, no such infirmity as may attract the provisions of Article 98 of the Constitution. Mr. Khurshid Ahmed has in this connection cited Badrul Haque Khan v. Election Tribunal, Dacca (P L D 1963 S C 704), Jamal Shah v. Election Commission (P L D 1966 S C 1) and Venkatagiri v. H. R. H, Board (P L D 1949 P C 26). These authorities do not help learned counsel for respondents Nos. 3 and 4 because they have not referred to any "infirmity" or defect as inadequate for attracting the provision of Article 98 of the Constitution. Their stand in respect of that Article, on the contrary, has been that since both Courts have found as a matter of fact that the second application is substantially the same as previous one, their decision is final and cannot be reopened in these proceedings, particularly because no objection to this view was taken by the petitioner before the District Judge who has emphasised this omission in his order. No law was cited by learned counsel in support of this proposition. but we are prepared to accept that a party which has acquiesces: in an erroneous order or irregular proceeding or even defective jurisdiction is not entitled to question it subsequently by invoking a high prerogative jurisdiction. We can refer in support of this proposition to Shamsul Hasnain Haider v. Mir Ghulam Ali Khan Talpur (P L D 1963 Kar. 588); Rex v. Williams ((1914) 1 K B 608) and pages 763 to 769 of Volume 11 of Law of Writs and Fundamental Rights 1960 Ed. by ` A. S. Chaudhuri; but we do not find the proposition to be wide enough to cover this case. In this case, the District Judge has observed that‑ "the only point which has been urged before me is that the lower Court has erred in coming to a conclusion that the subsequent petition for the restoration of the minors to the lawful guardian is barred." and has stated that‑‑ "the finding of the lower Court that the subsequent petition as well as the previous petition were substantially the same has not been challenged in appeal before me"; yet he has discussed the meaning of fresh cause of action in terms of section 25 of the Guardians and Wards Act, 1890 and has held that after an application for the restoration of the custody of a ward is dismissed, another application cannot be made unless a fresh cause of action accrues. "which is, (according to him) for the purposes of section 25 of the Guardians and Wards Act, the (fresh) removal of the ward from the custody of the guardian." But the petitioner has not, and is not alleged to have, acquiesced in the above view of the law. Thus even according to respondents Nos. 3 and 4, she can contend that the cause of action is a recurring one which, in other words, means that the framework of the two applications may be the same, or the contents of the two applications may be substantially the same and yet the second application by virtue of the recurring nature of the cause of action may disclose a new or a different cause of action. This analysis reveals the futility of the emphasis laid by learned counsel for respondents Nos. 3 and 4 on the observation of the Appellate Court that no objection was taken to the view that there was substantial similarity between the former and the subsequent applications.

21. We would like to emphasise one more aspect of the case in support of the above‑mentioned futility. It is that respondents Nos. 3 and 4 have placed on the record of these proceedings copies of the previous and the subsequent applications of the petitioner presumably in order to enable us for ourselves to see their contents. Can they contend now that we should not look at their documents and proceed blindfolded? We do not think so. Moreover, as mentioned above, the petitioner has pointed out in paragraph 7 of her petition to this Court that denial by respondent No. 3 to restore to her the custody of the children creates a new cause of action. This assertion has not been denied by respondents Nos. 3 and 4 in the joint written statement submitted by them. In the absence of their denial, it is wrong to contend on their behalf that non‑existence of a fresh cause of action is a foregone conclusion of fact. We may add here that learned counsel for respondents Nos. 3 and 4 have neither argued nor even asserted that in law or in fact, the second application of the petitioner does not in reality or according to themselves disclose a fresh cause of action, but were content merely to assert that the petitioner had acquiesced in a finding of its non‑existence and that, therefore, we are now precluded from going into that question in these proceedings. We hope that the contents of this and the preceding paragraphs will remove this misunderstanding because there was no such acquiescence and because some of the pleadings of respondents Nos. 3 and 4 in this Court run counter to that assertion.

22. Before recording our final conclusion we would like to mention that our jurisdiction in regard to this petition has not been questioned before us in any respect by any counsel. Mr. Khurshid Ahmed desired us to place on record his explanation that he was not engaged to appear in these proceedings as an advocate on the 12th of December 1966, and that he was not responsible for the inconvenience that was caused to this Court on that date. We take notice of his explanation, and add that we have no material to contradict him. We notice further that the Bench had stated the facts in the Order of that date as they had happened.

23. In final conclusion we accept this petition, and hold that the order dated the 7th of June 1966 of the Guardian Judge First Class, Lahore and the order dated the 13th of July 1966 of the District Judge, Lahore, are without legal authority and of no legal effect. Thus the second application of the petitioner made by her under sections 5 and 25 of the West Pakistan Family Courts Act, 1964 is still pending and awaits disposal according to law. A. H. Petition accepted.