1985 PLP 1648 (CLC)

Respondent No. 1 filed an application under section 25 of the Guardians and Wards Act in respect of his two children; a daughter and a son. He also filed an application under section 12 of the said Act for interim custody of the children. This was allowed by the learned Guardian Judge vide order dated 1-12-1984. The petitioner who claims to have married the girl on 20-1-1984, filed an appeal 'against the said order. The appellant had not given a notice to the respondent No. 1 as provided for under Order XLIII, rule 3, C.P.C. which was quoted by the learned Appellate Court, the Additional District Judge as follows:- (1) Where an appeal against an order is preferred during the pendency of a suit, the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his Advocate by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed against and obtain an acknowledgement of receipt thereof for the information of the Appellate Court. (2) On receipt of notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine." The learned Additional District Judge observed that "I am of the opinion that the appellant has not complied with the newly-amended law in Order X1.111, rule 3, sub-rules (1) and (2) of the C.P.C. I, therefore, find no force in the appeal, the same is hereby dismissed on this very technical ground." This is vide order dated 6-2-1985. Hence this Constitutional petition.

2. Learned counsel for the petitioner has submitted that the aforesaid provision was not applicable as the matter was governed by section 47 of the Guardians and Wards Act, 1890 read with section 17 of the West Pakistan Family Courts Act, 1964.

3. Learned counsel for respondent No. 1 has contended that the petitioner was not entitled to retain the custody of the minor even if he was her husband because the girl was minor at the time of the alleged Nikah.

4. Whether the petitioner was entitled to retain the custody of the girl on the plea of being her husband for the Custody granted by the respondent father by the learned guardian judge is to be given effect to, is a matter not germane to these proceedings. The question involved in this petition is weather the learned Additional District Judge was right to hold that the appeal has no force for the reason that notice under order XIII, rule 3, C.P.C. had not been given. The provisions relied upon the learned Additional District Judge quoted above, is apparently directory and not mandatory providing no penal consequences for non-compliance of the provisions. The learned Additional District Judge has dismissed the appeal in his own words "On very technical ground". This was not the type of a case in which technicalities were to have such a sway that the matter of custody of a minor is not determined. In view of the above, the order of the learned Additional District Judge, Jhang dated 6-2-1985 is set aside and is declared to be without lawful authority and of no legal effect. The matter is remitted to him for disposal of the petitioner's appeal on merits. In order to avoid delay the parties are directed to appear before the learned Additional District Judge, Jhang on 24-3-1985 for further disposal of the appeal. In the circumstances, the parties shall bear their own costs. A.A. Petition accepted.