P L D 1984 Lahore 332 (PLP)

SAAD SAOOD JAN, J.‑This is a civil revision under section 115 of the Code of Civil Procedure calling in question the legality of an order made by the Guardian Judge, Lahore. It arises in the following circumstances.

2. On 1‑7‑1980 the petitioner initiated proceedings under section 25 of the Guardians and Wards Act against his wife, namely, the respondent, for the custody of their three children. On 29‑4‑19x1 he filed an application for the amendment of his pleadings in order to state some additional facts. This application was rejected by the learned Guardian Judge by his order dated 9‑7‑1981. It led the petitioner to move the present application for revision.

3. The revision petition was initially laid before a learned Single Judge. He found that there was a conflict in judicial decisions with regard to the maintainability of a revision petition in the High Court from the order of a Guardian Judge. In this context he took notice of two judgments reported as Parveen v. Muhammad Asghar (P L D 1975 Lab. 334) and Shamim Ahmad v. Riaz Fatima P L D 1975 Kar. 448). In Parveen's case Aftab Hussain, Judge sitting singly, held that a‑revision was competent. In Shamim Ahmad's case Tufail Ali A. Rahman, C. J. cattle to a contrary conclusion. In view of this conflict the learned Single Judge referred the matter to the learned Chief Justice for the constitution of a large Bench to resolve the conflict and clear the position of law. The learned Chief Justice has constituted the present Bench to consider the question and dispose of the civil revision.

4. Before we proceed to record our view on the question we wish to point out that the proceedings which have led to the present revision petition are still pending before the learned Guardian Judge.

5. For resolution of the controversy referred to us sections 3, 5, 17 and 25 of the West Pakistan Family Courts Act, 1964, seem to be relevant. Section 3 provides for the establishment of Family Courts in the Districts of the Province. Section 5, read with the Schedule to the Act, confers exclusive jurisdiction upon a Family Court to entertain, hear and adjudicate upon matters relating inter alia to custody of children and guardianship. Section 17(1) makes all the provisions of the Code of Civil Procedure, except sections 10 and 1.1, in applicable to proceedings before a Family Court. Section 25 lays down that a Family Court is to be deemed a District Court for the purpose of Guardians and Wards Act and in dealing with matters specified in that Act it should follow the procedure prescribed therein.

6. In view of the non‑applicability of the provisions of the Code of Civil Procedure to the proceedings before a Family Court on account of the express bar contained in section 17(P L D 1970 Lab. 641) of the West Pakistan Family Courts Act, there can be little doubt that interlocutory orders of a Family Court are not subject to the revisional jurisdiction of the High Court as set out in section 115 of the said Code. This was also the view of Nasim Hasan Shah, Judge in Wajahat Ali v. Ghazala (1). In this case his Lordship observed t‑ "The object of this Act is to provide a speedy method of settling family disputes and if orders of interlocutory character are to be brought to the High Court, this object would be defeated. Under the provisions, of the Act the Family Court is subordinate to the High Court if it is presided over by a person who is or has been District Judge or an Additional District Judge and to the District Court in any other case vide section 14 of the Family Courts Act. But merely because of this subordination to the High Court it does not automatically follow that the orders passed by such a Court become revisable by the High Court. The revisional power is contained in section 115, of the C. P. C. However, by virtue of section 17 of the Act, the application of the provisions of the Code of Civil Procedure are excluded, except for certain limited purposes which are specified id the Act. Moreover, the Civil Procedure Code does not, as provided in section 4 override any: special or local law.‑ The provisions of section 17 of the Family Courts Act must, therefore, be given their full effect with the result that even if the Family Court is regarded as a Court subordinate to the High Court, the effect of section 17 of the Act is to exclude the orders of, the Family Court from the operation of section 115, C. P. C. and the said provision of law is not available for obtaining revision of orders passed by the Family Courts." . It is true that the learned Judge was dealing with matters which did not arise out of proceedings under the Guardians and Wards Act but as we shall presently see this distinction does not alter the legal position.

7. Section 25 of the West Pakistan Family Courts Act reads as follows :‑‑ "A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act, shall, in dealing with matters specified in that Act, follow the procedure prescribed in that Act." It will be noticed that this section is in two parts. The first part creates a legal fiction inasmuch as it declares that a Family Court shall be deemed to be a District Court for the purpose of Guardians and Wards Act and the second part lays down that while dealing with matters specified under the Guardians and Wards Act it shall follow the procedure prescribed in that Act. It can hardly be argued that by merely following the procedure prescribed under the Guardians and Wards Apt a Family Court would lose its identity as such. We are also not persuaded to accept that on being deemed to be a District Court for the purpose of Guardians and Wards Act, the proceedings held by it are not proceedings of a Family Court but those of a District Court. Such an interpretation would come in conflict with the provisions of section 5 of the West Pakistan Family Courts Act which confer exclusive jurisdiction on a Family Court to deal with matters relating to custody of children and guardianship. On the other hand it seems more proper to hold that the deeming clause was intended only to enlarge the jurisdiction of the Family Court in order to enable it to take over the functions assigned to a District Court under the Guardians and Wards Act. We should, therefore, think that while exercising the jurisdiction created by the Guardians and Wards Act a Family Court continues to retain its identity as such and the proceedings before it are proceedings before a Family Court within the meaning of section 17(1) of the West Pakistan Family Courts Act. That being so orders made by it in the course of proceedings before it will not be amenable to the revisional jurisdiction of the High Court under section 115 of the Code of Civil Procedure.

8. The decision of Aftab Hussain, Judge in Parveen v. Muhammad Ashar proceeds on the interpretation of the second part ‑of section 25, West Pakistan Family Courts Act which states that notwithstanding anything contained in the Act a Family Court shall, dealing with matters specified in the Guardians and Wards Act, follow the procedure provided in the latter Act. He was seized of a revision petition to which an order refusing temporary custody of the minors to the mother had been passed. An objection with regard to the maintainability of the revision petition was taken. The learned Judge took the view that the word procedure as occurring in section 25, (ibid) includes all the provisions relating to appeal and revision as included in the Guardians and Wards Act and as such an order made in proceedings under the Guardians and Wards Act was revisable by the High Court. In taking this view he found support from another decision of this Court reported as Muhammad Ismail v. Fazal Ahmad (P L D 1969 Lab. 834) wherein a Division Bench had held An analysis of section 25 yields two inferences: ‑ (i) that a Family Court is equated with a District Court for the purposes of Guardians and Wards Act, (ii) While dealing with the matters specified in the Guardians and Wards Act, a Family Court shall follow the procedure prescribed in that Act. Ordinarily the word `procedure' connotes details of the mode of trial to be adopted in a particular Court and would not include the provisions relating to appeal, but in view of the expression `in dealing with the matters specified in that Act, follow the procedure prescribed in that Act' coupled with the inevitable consequence arrived by us earlier, to the effect that the order in question would not be governed by any of the provisions contained in section 14 so as to make it appealable, we are clearly of the view that the only proper interpretation that can be placed on sections 14 and 25 of the Act read together is that for the purposes of appeal, against an order of the category with which we are concerned section 47 of the Guardians and Wards Act would be applicable and accordingly an appeal would be competent to the High Court." Aftab Hussain, Judge also took notice of a Full Bench judgment of the Sind and Baluchistan High Court reported as Zaiburn Nisa v. Muhammad Mozammil (P L D 1972 Kar. 410) where a different view was taken and expressed his dissent with it.

9. The view taken by Aftab Hussain, Judge was considered and approved by a Division Bench of which he was also a member in Manzoor Hussain v. District Judge, Multan (P L .D 1977 Lah. 911) but then the Division Bench was dealing with an entirely different point, that is, whether the forum of appeal from the order of a Guardian Judge was the District Court or the High Court. In Niaz Ahmad v. Nasim Akhtar (1983 C L C 183) Irshad Hassan Khan, Judge also decided in favour of the competency of the civil revision but then his judgment does not contain any reason in support of his view.

10. On the other hand in Zaibun Nisa v. Muhammad Mozammil (ibid), the learned Judges, came to a contrary conclusion and held that no revision lay to the High Court from the order of the Guardian Judge. In arriving at this conclusion they placed a narrow interpretation on the words `follow the procedure' as occurring in section 25 of the West Pakistan Family Courts Act and thought that these words did not have the effect of introducing the provisions relating to appeal and revision as contained in the Guardians and Wards Act in proceedings before the Family Court. They dissented with the view expressed in Muhammad Ismail v. Fazal Ahmad (ibid), observing that the said words were intended merely to regulate the mode of trial before the Family Judge while exercising jurisdiction under the Guardians and Wards Act. In Shamim Ahmad v. Riaz Fatima (P L D 1975 Kar. 448) Tufail Ali A. Rahman, C. J. came to the same conclusion even though the revision petition before his Lordship had arisen out of an appellate order.

11. The conflict between the decisions of the Lahore and Sind and Baluchistan High Courts was resolved by the Supreme Court in Sakhawat Ali v. Shui Khelay (P L D 1981 S C 454). Their Lordships upheld the views expressed in Zaibun Nisa's case and disapproved of the views taken in Muhammad Ismail v. Fazal Ahmad, Parveen v. Muhammad Ashar and Manzoor Hussain v. District Judge, Multan and observed: ‑ "We are satisfied that section 25 has been enacted only in order to regulate the mode of the trial before the Family Judge, therefore, it would defeat the intention of the Legislature if we were to enlarge the ordinary meaning of the word procedure so as to include `the' provisions relating to appeal" We were informed at the bar that in Muhammad Deen Malik v. Second Addi tional District Judge (1982 S C M R 1223) the Supreme Court has decided to reconsider the rule laid down in Sakhawat Ali's case but then till it does so we are bound by it. Thus, in view of the decision of the Supreme Court in Sakhawat All's case we can no longer regard the views expressed by the Lahore High Court as valid.

12. For the reasons stated above we are of the view that this civil revision is not competent. We would accordingly dismiss it but make no order as to costs. M. Z. M. Revision dismissed.