2019 PLP 1516 (CLC)

CM No.05 of 2019 MUZAMIL AKHTAR SHABIR, J.

This is an application filed on behalf of the petitioner to amend the petition.

2. Learned counsel for respondent No.2 has no objection, if amendment is allowed. The application is allowed subject to all just and legal exceptions. Along with this application, an amended petition has been filed. The same shall be made part of this file. Office to place it at its appropriate place. CM No.06 of 2019

3. This is an application for placing certain documents on record. Allowed subject to all just and legal exceptions. CM stands disposed of. CM No.07 of 2019

4. Dispensation sought is allowed subject to all just and legal exceptions. CM stands disposed of. Main Case

5. The petitioner, who stood as surety on behalf of wife of respondent No.2/Ms. Mirjarn Aberras Landeaho, ("wife of respondent") in a petition under section 7 of the Guardians and Wards Act, 1890, for her appointment as guardian of her two sons subject to furnishing of surety bonds in the sum of Rs.10-million, has called in question orders dated 03.01.2019 and 14.01.2019 passed by Addl: District Judge, Lahore, whereby the said court, for non-compliance of its orders, initiated proceedings against the petitioner.

6. The learned counsel appearing on behalf of the petitioner has argued that it is an admitted fact that the petitioner stood as surety for wife of respondent, however, the learned trial court vide its order dated 01.06.2018 allowed the wife of the respondent to proceed to Canada along with the minors. The order dated 08.06.2018 passed by the appellate court, whereby the afore referred order was suspended, was conveyed neither to the petitioner nor wife of the respondent before she proceeded to Canada, who is now being represented in the appeal before the court through her counsel. It has been claimed that without service of notice relating to the afore referred order passed in the appeal and directing the wife of the respondent to produce the minors before the court, proceedings cannot be initiated against the petitioner who merely stood as surety for wife of the respondent as per the orders of the trial court, wherein they were permitted to proceed abroad. The petitioner raised said objection before the appellate court which without determining the same and other grounds raised by the petitioner has initiated proceedings against the petitioner, whereby through order dated 03.01.2019, bailable warrants of arrest of the petitioner were issued to appear in the court and submit his defence and subsequent order dated 14.01.2019 whereby the petitioner was released on personal surety of his friend and ordered the petitioner's property mentioned in the surety bond to be attached.

7. Conversely, the learned counsel for respondent states that the liability of a surety is coextensive with the principal, therefore, there was no need to pass an order to the wife of the respondent to produce minors in the court before proceedings against the petitioner.

8. Both the parties have been heard.

9. Inter alia, the main argument of the learned counsel for the petitioner is that as the trial court had itself permitted the wife of the respondent to proceed to Canada along with her children, therefore, he cannot be proceeded against without deciding the objections raised by the petitioner's counsel about maintainability of proceedings against him and determining the effect of the fact that he was neither previously served in the matter nor wife of the respondent, for whom he stood as surety, was conveyed the order for producing the minors in the appellate court. Consequently, prays that the impugned orders, whereby coercive measures have been adopted by the court are liable to be set-side. Although the learned counsel for the respondent has supported the impugned order on various grounds, he has not been able to satisfy this Court that any service of notice was effected upon the petitioner before adopting coercive measures or objections raised by the petitioner had been decided by the appellate court. It is an inalienable right of a party to be provided a right of hearing which includes his right to be available before the court, for which purpose the court is required to ensure that proper notice has been served to that party requiring him to appear before the court and present his case. The said party is entitled for decision of any legal objection if raised by the said party through a speaking order. The said procedure does not appear to have been properly followed by the court. It is not the case of the respondent that petitioner despite service of notice had not appeared before the appellate court and had waived his right to be heard. Consequently it appears that adverse order has been passed against the petitioner without providing him proper hearing and the decisions suffer from violation of fundamental principle of natural justice which is to be read as part of every statute. Reliance is placed on the judgment reported as Hazara (Hill Track) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others (2005 SCMR 678) wherein it has been held that violation of principle of natural justice enshrined in the maxim "Audi Alteram Partem" would be enough to vitiate even most solemn proceedings as the said principle originated from Islamic System of Justice and would be read/considered as part of every statute in the interest of justice.

10. I am not inclined to agree with the objection raised by the learned counsel for the respondent that constitutional petition is not competent against an interim order, because such bar is not absolute and where an interim order appears to suffer from some jurisdictional defect causing prejudice to the rights of a party (non-provision of right of hearing in the present case before passing adverse order against him) this Court under Article 199 of the Constitution is empowered to rectify the same. Reliance in this regard is placed on the judgments reported as Messrs Bashir Engineering Industries Limited and others v. Messrs Muslim Commercial Bank Limited and others (1998 CLC 2065), Irfan Ahmed v. II-Judicial Magistrate East, At Karachi and another (2006 MLD 135) and Jaffar Mehmood Malik v. Ch. Khalid Hussain and others (2006 YLR 1516).

11. Keeping in view the facts and circumstances of the case, this Court deems it appropriate to set-aside the impugned orders passed by the appellate court and remand the matter to the court of District Judge, Lahore for decision of the same afresh after providing opportunity of hearing to both the parties and also taking into consideration the grounds and objections raised by them preferably within a period of 60 days from receipt of the order of this Court. In order to regulate further proceedings, the parties are directed to appear in the Court of District Judge, Lahore on 11.03.2019.

12. In the foregoing terms, this petition is allowed. MH/W-4/L Case remanded.