2019 PLP 66 (CLCN)

MUZAMIL AKHTAR SHABIR, J.

Through this constitutional petition, the petitioner has called in question the order of appellate court dated 24.01.2019, dismissing his appeal as time barred, which had been filed against the order dated 03.11.2018 passed by trial court, whereby application filed by the petitioner for interim custody of the minor has been dismissed.

2. Learned counsel for the petitioner has argued that the appellate court instead of deciding the matter on technicalities should have determined the question of welfare of minor before deciding the application for condonation of delay and the appeal against dismissal of application for interim custody.

3. On the other hand, learned counsel for the respondent has defended the impugned order and states that the application for permanent custody of the minor is still pending and the petitioner instead of challenging the dismissal of application for interim custody of minor should wait for the final decision of the matter.

4. Heard. Record perused.

5. The appellate court has dismissed the appeal filed by the petitioner as time barred on the ground that the order dated 03.11.2018 had been challenged by filing appeal on 18.12.2018 which is after more than one month and 15 days of the announcement of said order and only one day i.e. 17.12.2018 was required to obtain certified copy of the impugned order. Besides the reason mentioned in the application under Section 5 of the Limitation Act, 1908 for condonation of delay was not found plausible by the appellate court as each and every day of delay had not been explained. Although delay of each and every day has to be explained in the matters relating to adversarial proceedings but in the cases of guardianship or custody of the minor, such technicalities cannot be strictly adhered to because in such like matters the court is exercising a parental jurisdiction as if it was a loco parentis to the minor whose welfare is the paramount consideration. Reliance in this regard is placed on the judgment reported as Malik Khizer Hayat Khan Tiwana v. Mst. Zainab Begum (PLD 1967 Supreme Court 402), relevant portion of which is reproduced below: "We are also of the view that in a proceeding under the Act, the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. The Court in such cases is really exercising a paternal jurisdiction as if it were in loco parentis to the minor. This is not a jurisdiction, therefore, in which there can, by its very nature be any scope for any undue adherence to the technicalities." In the same case, the High Court had, in the judgment reported as Zainab Tiwana v. Aziz Ahmad Warraich and others (PLD 1967 Lahore 977), earlier observed that guardianship proceedings are held in exercise of parental jurisdiction and the court has to act with object of promoting interest of minor by avoiding technicalities, in the following terms: "Guardianship 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. The guardianship courts are to keep the welfare of the minors consistently in mind and act with the object of promoting their interest. The Courts, may, in suitable circumstances, any time change or modify their orders for purposes of better supervision of wards, 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 to do so when it is essentially for the welfare of the minors themselves." Moreover, same principle has been adopted in the judgment reported as Naveed Munir v. Additional District and Sessions Judge, Lahore and another (2011 MLD 1938), wherein in a guardianship matter, this Court set-aside the order of dismissal of application under Order IX, Rule 13, C.P.C. which had been dismissed as time barred with observations that the matter should be decided on merits in the welfare of the minor.

6. In the impugned order although the appeal has been dismissed as barred by time but the aspect of welfare of minor does not appear to have been considered by the appellate court before dismissing the same, therefore, the jurisdiction does not appear to have been properly exercised and, consequently, without commenting upon the merits of the case, it would be appropriate to remand the matter to the appellate court for decision afresh.

7. For what has been discussed above, this constitutional petition is allowed and by setting aside the impugned orders, the matter is remanded to the appellate court for decision a fresh where appeal as well as application for condonation of delay filed by the petitioner shall be deemed to be pending for rehearing and re-deciding the same keeping in view the aspect of welfare of the minor. SA/A-54/L Case remanded.