P L D 1967 Karachi 645 (PLP)

Held, the fact that no particular conditions arc laid down in subsection (1) of section 12 does out dispense with the fundamental requirement of passing an interim order. When such an order is sought the party seeking the order has to show a certain element of urgency. Since nothing of the kind was done here nor was any evidence recorded nor was any allegation of the kind made as would be necessary to justify the passing of as interim under, an order under section 12 having regard to its nature cannot be passed without the Court applying its mind to the important question of urgency. (c) Civil Procedure Code (V of 1908 )

O. XL, r. 1 ‑‑‑No conditions laid down in O. XL, r. I for appointment of receiver Court to pass interlocutory order when satisfied that there it likelihood of waste, etc. of property and it is necessary, in interest of justice to pass order. There are no specific conditions laid down fur the appoint ment of a receiver under Order XL, rule

1. C. P. C. and yet before an interlocutory order under that provision is passed the Court has to go into the question whether the passing of interim Order pending the decision of the matter is in the interest of justice and if not passed there was danger to property or likelihood of waste, etc. A. Aziz for Applicant. Muhammad Ilyas for Respondent. Date of hearing : 14th February 1

900. This application in revision is directed against the order of the District Judge, Karachi, dated 27th March 1965, whereby he directed that the minors be delivered into the temporary custody of the mother. This order was passed upon an application under section 12 of the Guardians and Wards Act.

2. The facts which are material for the disposal of this revision application maybe very briefly stated. The parties were married to each other on 17th February 1957, at Lahore and out of this wedlock three children were born on 23‑5‑58, 12‑8‑60 and 26‑9‑61, of these the one who‑‑was born on 12‑8‑6() is a boy named Khalid Mahmud and the other two are girls Safi Naz and Naila Naz. At the time of the marriage the husband Muhammad Sadiq was employed as a technologist with M/s. Kohinoor Company at Rawalpindi and it is there that the parties resided until April 1964, when the husband left the job at Pindi and settled at Karachi. The course of married life of the parties had unfortunately not been smooth and there had been disagreement in the past finally on 26th September 1964, the wife Mst. Khalida Parveen travelled alone from Karachi to Lahore where her parents are and it is a matter of controversy between the parties as to the circumstances in which the lady left for Lahore. It is the case of the husband that she went away herself after a quarrel, whereas the wife's case is that she was sent away to Lahore by deceitful means. The husband on 22nd October 1964, communicated the fact to the wife that he had divorced her and this divorce had eventually been accepted under the Family Laws Ordinance. On 21st February 1961, a criminal complaint was filed with the Golimar Police Station, Karachi, on behalf of the mother alleging that the father and some of his relations had kidnapped the three minor children. This was followed by an application under section 10 of the Guardians and Wards Act by the father in the Court of the District Judge and in which it was claimed that the father, apart from being the natural guardian, was also in the circumstances of the case entitled to the custody of the three minor children. The mother Khalida Parveen promptly filed an application on the next day, that is 3rd March 1965, tinder section 25 of the Guardians and Wards Act claiming the custody of the minors. Along with this application a miscellaneous appli cation under section 12 was filed for an order of interim custody. It is upon the latter application that the impugned order had been passed. It may be added that in the criminal complaint which was made to the police a final report was filed and n.,) prosecution was launched.

3. The learned Judge disposed of the application under section 12 by a lengthy order on 27‑3‑65 whereby he directed that the minors he produced in Court by the father and handed over to the mother. In effect he also disallowed an application by the father that he should be allowed to continue with the custody of the minors.

4. Mr. A. Aziz, the learned counsel for the applicant before me had attempted to contend that neither an application under section 25 of the Guardians and Wards Act nor an application for interim custody under section 12 of the said Act was maintain able unless there was also an application by the mother to be appointed the guardian of the person of the minors. The argument was that in the absence of a prayer for appointment of guardian the application under section 25 by the mother was incompetent. I do not want to express myself finally upon this point because of the view that I have been with reference to the application of section 12 of the Act. However, as a matter of first impression I am inclined to think that in a case where the father is alive and has not been found to be a person unfit to he the guardian of his minor children he must bet regarded as the natural guardian and an application for the appointment of the guardian of the minors in such a case would be incompetent. But the fact that the father is the natural guardian doe: not, in my opinion, disentitle the mother or the mother's mother, as the case may be for claiming the custody of the minor children, which order of custody is not necessarily in disregard of the guardianship of the father which continues until an order of unfitness is passed in respect of him. The custody in such a case by the female relation of the minor is always considered to he under the supervision and control of the father. What the Courts decide upon an application under section 25 is the question of the custody of the minor children up to a certain age which differs in the case of male and female children. I do not propose to stay long at this point because after having carefully read the order of the learned District Judge and heard, Mr. Ilyas Ahmad for the Respondent before me, I am satisfied that the learned District Judge did not apply his mind to the main question which must arise when an application for temporary custody is made under section 12 of the Guardians and Wards Act. This was a case where the minors had been with the father for about 5 months before the applica tion under section 25 was made. They were not with any stranger nor was it alleged that the continuance of their custody with the father was likely to endanger the well being of the minors or that their lives or health was in jeopardy. Mr. Ilyas Ahmad contended that the language of subsection (1) of section 12 does nut lay down any condition for the staking of an interim order. But like that there are no specific conditions laid down for the appointment of a receiver under Order XL, rule 1 C. P. C. and yet before an interlocutory order under that provision is passed the Court has to go into the question whether, the passing of interim order pending the decision of the matter is in the interest of justice and if not passed there was danger to property or likelihood of waste, etc. The fact that no particular conditions are Lid down in subsection (l) of section 12 does not dispense with the fundamental requirement of passing an interim order. I have not the slightest doubt that when such an order is sought the party seeking the order has to show a certain element c of urgency. Nothing of the kind was done here nor was any evidence recorded nor was any allegation of the kind made as would be necessary to justify the passing of an interim order. The learned Judge has dealt with the matter as if he was deciding the question of custody under section 25 of the Guardians and Wards Act. But that application, I am informed, is still pending and there have been several dates though there is no progress in the case. I asked Mr. Ilyas Ahmad whether he was in a position to point out any portion from the judgment of the learned District Judge to indicate that he was of the opinion that unless an interim order of custody was passed there would be injury to the true interest of the minors and the learned counsel was not able to do so. I understand that the application under section 25 is now fixed for hearing on 26th of this month. I do not want to say anything upon the merits of the application one way or the other because that must be decided upon the evidence which may be led before the learned Court below. I am, however, clearly of the opinion that an order under section 12 having regard to its, nature cannot be passed without the Court applying its mind to the important question of urgency. As this has not been done in this case, I set aside the Order passed by the learned District Judge on 27‑3‑65 and I direct that the application under section 25 of the Guardians and Wards Act shall be disposed of expeditiously. K. M. A. Petition accepted.