1995 PLP 1402 (MLD)

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Scope‑‑‑Factual controversy‑‑‑Where evidence is required to be led on facts, High Court cannot exercise its Constitutional jurisdiction ‑‑‑Question raised by petitioner being determinable only after recording of evidence, which exercise could not be undertaken in Constitutional jurisdiction, Constitutional petition was dismissed. Punjab Agricultural Development and Supplies Corporation Employees Welfare Union v. The Registrar, Trade Unions, Bahawalpur Region 1991 PLC 38 ref. Zia Ahmed Awan for Petitioner. Irfan Ahmed Usmani for Respondents. This Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan has been filed by Mst. Saboohi, the wife of the respondent No. 1 Ghulam Dastagir, challenging the validity and legality of the order dated 14‑5‑1994 passed by VIIth Senior Civil/Guardian Judge, Karachi (South). An application was moved by the petitioner Mst. Saboohi in a Guardian and Wards Case No. 10/90 for reopening of her side of evidence, contending that due to heavy traffic she was not able to produce her witnesses in time and that the order, which was passed closing the side of her evidence, may be recalled. A counter‑affidavit was filed by the respondent Ghulam Dastagir vehemently opposing the contention of the petitioner and stating that the petitioner had failed to produce her evidence since 4‑12‑1993 and that previously on two occasions the side of the evidence of the petitioner was closed but on both those occasions on her application for reopening of the side she was given chances by the learned Judge to produce her witnesses, still she failed to produce her evidence and that this was the third time that her side of evidence was closed and that she has not shown any sufficient ,cause for reopening of her side of evidence. The dispute between the petitioner and the respondent is in respect of the custody of minor Adeel, who is their son. Respondent Ghulam Dastagir, the father, is the applicant before the Guardian Court while the petitioner Mst. Saboohi is the respondent. The case was filed in the year 1990. Issues were settled in the year 1990. The evidence of the respondent Ghulam Dastagir was completed on 27‑2‑1993. The petitioner was given chances to lead the evidence on the next hearing that was 20‑3‑1993 and since thereafter the case was being adjourned from time to time for the evidence of the petitioner's side. However, on 20‑11‑1993 the petitioner Mst. Saboohi was examined in the Court and she was given chance to give further evidence for which the date was fixed as 4‑12‑1993. Thereafter she has failed to produce the witnesses in the Court in spite of the fact that sufficient opportunities were given to her. On 19‑2‑1994 the side of evidence of the petitioner was closed on account of her own fault. However, an application was moved to recall this order which was allowed on 7‑3‑1994. On 19‑3‑1994 she was given final chance to produce her evidence on 28‑3‑1994 but she remained absent on the said date, as a result of which her side was again closed and the case was fixed for final arguments on 9‑4‑1994. Only two days earlier i.e. on 7‑4‑1994 again an application for reopening of the side of the evidence of the petitioner was moved, which was contested by the respondent and finally the order dated 14‑5‑1994 was passed by the VIIth Senior Civil Judge, Karachi (South), refusing the request of the petitioner for another chance to lead the evidence. The case is at the final stage. This petition has been filed on 12‑7‑1994 with a prayer to declare the order dated 14‑5‑1994 passed by VIIth Senior Civil Judge as illegal and ultra vires and also prayed for a direction to the respondent No. 2 to allow the petitioner to produce her witnesses. The learned counsel for the petitioner Mr. Zia Ahmed Awan, while arguing this matter, has stated that since no other adequate and efficacious remedy was available with the petitioner, she had filed the present petition. The learned counsel for the petitioner, however, pressed that the petitioner be permitted to lead her evidence as it will be in the interest of justice to get the case decided on merits rather than ex parte. The learned counsel for the respondent Mr. Irfan Ahmed, while arguing, pointed out that the negligence on the part of the petitioner has resulted in the passing of the order dated 14‑5‑1994 and that it is not only negligence but a deliberate attempt on the part of the petitioner to see that the guardian and wards proceedings are not decided at an earlier date and in fact it is an act of procrastination on the part of the petitioner. The jurisdiction of this Court under Article 199 is well‑defined. In this case, the matter is sub judice in a Court of law, where both the parties have got opportunities to seek remedy. In case the petitioner has, on account of reasonable cause, failed to adduce her evidence and the Guardian Court has erroneously refused her request for the reopening of the side, still the remedy is available with the petitioner to agitate this question in the appeal and if the petitioner is able to satisfy the appellate Court that the Guardian Court had passed erroneous or an illegal order, the appellate Court will definitely provide a remedy to the petitioner. Thus, in this case it cannot be said that the petitioner has got no other adequate or efficacious remedy available. Consequently, this Court does not appear to have jurisdiction to entertain this petition. For this Court to arrive at the conclusion that the petitioner had a reasonable cause not to produce her evidence on the relevant date when her side of evidence was closed, will require evidence. In case where evidence is required to be led on facts, this Court will not exercise the jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan. Besides, the order dated 14‑5‑1994 has been examined carefully and it is not found that it is illegal in any way. This being the case, I do not find any reasonable ground to treat this order as exceptional. The questions raised by the petitioner are determinable only after recording of evidence, which exercise cannot be undertaken in Constitutional jurisdiction of this Court. On this point I am supported by the case of Punjab Agricultural Development and Supplies Corporation Employees Welfare Union v. The Registrar, Trade Unions, Bahawalpur Region reported in 1991 PLC

38. Under these circumstances, this petition is dismissed in limine. H.B.T./S‑1136/K Petition dismissed.