P L D 2011 Lahore 534 (PLP)

MAMOON RASHID SHEIKH, J.

With the consent of the parties this petition is being treated as a Pacca matter and shall be decided on the basis of the available record which includes certified copies of the proceedings before the learned Guardian Judge No.1, Lahore, presented during the course of arguments by the learned counsel for respondent No.1.

2. The brief facts giving rise to this petition are to the effect that Nikah ceremony of the petitioner with respondent No.1 was held on 28-12-2003 whereas Rukhsati took place on 9-10-2004. Out of this wedlock a girl namely Mahnoor Fatima Wajid (hereinafter referred to as "the minor") was born to the parties on 9-8-2007. The relationship between the parties, however, turned sour which ensued in litigation. The petitioner filed a guardianship petition which was disposed of on the basis of the compromise arrived at between the parties. Subsequently, the petitioner filed a fresh petition under section 7 read with section 25 of the Guardians and Wards Act, 1890, for guardianship and custody of the person of the minor. During the pendency of the said petition a suit for recovery of maintenance was filed by respondent No.1 and the minor. In the said suit the petitioner was directed to pay Rs.10,000 per month as the interim maintenance of the minor. The said order was assailed by the petitioner through Writ Petition No.9852 of 2009. This petition was, however, disposed of on 4-6-2010 with the direction to the learned Judge Family Court to decide the suit within two months positively. The petitioner's guardianship petition and the said suit for recovery of maintenance were consolidated and after framing of consolidated issues trial of the suits ensued.

3. The petitioner led his evidence, whereafter respondent No.1 filed her own affidavit and the affidavits of her witnesses. The petitioner was, however, unable to cross-examine the said witnesses with the result that his right of cross-examination was closed by the learned Guardian Judge through the impugned order dated 5-4-2011.

4. The learned counsel for the petitioner submits that the proceedings before the learned Guardian Judge are adversarial in nature and the welfare of the minor is involved. In such like circumstances, the right of the petitioner to cross-examine respondent No.1's witnesses could not have been closed on technical grounds. Further submits that the petitioner had filed an application on 12-3-2011 for medical examination of respondent No.1 as she was incapable of appearing as a witness on grounds of mental incapacity. The learned Guardian Judge without deciding the said application proceeded to close the right of cross-examination of the petitioner through the impugned order.

5. Contends that the impugned order dated 5-4-2011 is illegal and militates against the norms of natural justice. Further contends that by being denied the right to cross-examine respondent No.1's witnesses the petitioner has been unable to establish his case as set up in the guardianship petition. Further submits that to meet the ends of justice one opportunity may be granted to the petitioner to cross-examine respondent No.1's witnesses.

6. The learned counsel for respondent No.1 has vehemently opposed the petition. He has called into question the maintainability of the petition by, inter alia, submitting that the impugned order dated 5-4-2011 is interlocutory in nature. Under the law such an order does not call for interference in the extraordinary constitutional jurisdiction of this Court. Relies on the judgments reported as Khalil Ahmad through Special Attorney v. Judge Family Court, Faisalabad and another (2010 YLR 336 (Lahore)), Mst. Shaheen Akhtar v. Muhammad Arif and others (2008 YLR 1693 (Lahore)), Sher Shah v. Mst. Rani Begun: and 5 others (2010 YLR 308 (Lahore)) and Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&JAD, Karachi and another (1996 SCMR 1165).

7. On merits the learned counsel for respondent No. 1 submits that the petitioner was given at least seven opportunities to cross-examine respondent No.1's witnesses. Costs were also imposed and the petitioner was informed that it was the absolute final opportunity for the petitioner to cross-examine respondent No.1's witnesses, the petitioner, however, failed to conduct cross-examination.

8. I have heard the arguments of the learned counsel for the parties and have also gone through the documents available on the file with their assistance.

9. There appears to be merit in the preliminary objection raised by the learned counsel for respondent No.1 as to the maintainability of the petition. This Court does not normally interfere with interlocutory orders in exercise of its writ jurisdiction, unless a case of grave miscarriage of justice is made out or where it is a case of lack of or excess of jurisdiction. Reliance is placed on the judgment reported as Mst. Shereen Masood v. Malik Nasim Hassan, Judge Family Court, Lahore and another 1985 CLC 2758.

10. In the instant case this Court cannot help but observe that this is a guardianship matter. The future of a minor is at stake. In such like cases the welfare of the minor is of paramount consideration. Guardianship proceedings are inquisitorial in nature. The Guardian Judge has to go through all the material available on the record or which can be brought on the record in order to determine the question of the welfare of the minor. Technicalities of procedure are, therefore, to be avoided.

11. A perusal of the order sheet of the learned Guardian Judge shows that seven (7) adjournments were granted by the learned Guardian Judge to the petitioner for cross-examination of respondent No.1's witnesses. However, on the two (2) dates immediately prior to passing of the impugned order, even though respondent No.1's witnesses and the learned counsel for the parties were present, the matter could not proceed as the learned Members of the Bar were on strike. The adjournments were, therefore, not granted at the request of the petitioner. In such circumstances closure of the petitioner's right of cross- examination was not called for. Moreover, on each occasion when the petitioner requested for adjournment or, indeed, on the dates when the learned Members of the Bar were on strike there was no objection on the part of respondent No.1 to the adjournment being granted. The absence of any objection to the petitioner's request or adjournment by respondent No.1 would, therefore, be deemed to be a routine adjournment not entailing penal action against the petitioner. Reliance in this regard is placed on the judgments reported as Mubashir Khan v. Javaid Kamran alias Javed Iqbal (2007 MLD 1072(Lahore) DB) and Muhammad Hussain and 5 others v. Akram Baig and 3 others (PLD 1988 Lahore 183).

12. On this view of the matter coupled with the fact that the rights of a minor are involved this Court is inclined to grant one opportunity to the petitioner to cross-examine respondent No. 1's witnesses albeit at the imposition of costs.

13. This petition is accordingly accepted with the result that the impugned order dated 5-4-2011 is set aside and it is directed that the parties shall appear before the Guardian Judge on 20-6-2011, whereafter one opportunity shall be given to the petitioner to cross-examine respondent No.1's witnesses subject to payment of Rs.20,000 as costs. It. is clarified that if on the date so fixed the petitioner i3 unable to cross-examine respondent No.1's witnesses due to reasons not attributable to the petitioner then the learned Guardian Judge shall adjourn the matter in accordance with the law.

14. It is further directed that the learned Guardian Judge shall endeavor to expeditiously finally adjudicate upon the matter but no later than 20-9-2011. M.H./W-11/L Petition allowed.