ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Constitution Petition No. 57 of 2013
Petitioner: NasirWaseem s/o. Muhammad Shakeel,
through Mr. NasirMahmood, advocate.
Respondents No. 1 & 2: Mst. ZilleHuma& Master ShaharyarHasan
Nasir, through Mr. Khawaja Muhammad
Azeem, advocate.
Date of hearing: 09.02.2017
Date of order: 09.02.2017
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O R D E R
Zafar Ahmed Rajput, J:- This Constitution Petition is directed against the order dated 03.12.2012, whereby the learned 2nd Additional District Judge, Karachi-East, while allowing Family Appeal No. 51 of 2012 (re: ZileHuma v. NasirWaseem), set aside the order dated 07.03.2012, thereby the learned XXth Civil & Family Judge, Karachi-East while allowing application under Order VII Rule 11 C.P.C.& Section 11 C.P.C. read with Section 17 of the Family Court Act, 1964 (hereinafter referred to as “Application”), dismissed the Guardian & Wards Application No. 1380 of 2011.
2. Brief facts of the case are that the respondent No. 1 filed aforementioned Guardian & Wards Application, under sections 7 and 10 of the Guardian & Wards Act, 1890 for the appointment of guardian of the person of the minor, namely, ShaharyarHasanNasiragainst the petitioner/ respondent, alleging therein that after marriage spouses were settled in Toronto, Canada and the said minor was also born there on 23.10.2003, who is by birth Canadian. The petitioner/ respondent No. 1 filed Application, which was allowed by the learned trial Court, vide order dated 07.03.2012by observing that “the applicant took the minor from Toronto-Canada after getting permission from the Court of 393 University Avenue, 10thFloor, Toronto, Ontario Canada, in this respect respondent has filed the judgment dated 30.09.2010 passed by the Court of Toronto Canada, which shows that the applicant got permission from the Court for short visit to Pakistan and after arrival here she has filed the present application for appointment of guardian of the minor as per law of land which shows the malafide intention of the applicant further minor was born in Canada, he is Canadian National and Court of Toronto Canada has already appointed the respondent (wrongly typed applicant in order) as guardian of the minor and such fact has also not been denied by the applicant.”
3. The aforementioned order was impugned by the respondent No. 1/ applicant in Family Appeal No. 51 of 2012, which was heard and allowed by the learned 3rd Additional District Judge, Karachi-East, setting aside the order dated 03.12.2012, while observing that “according to the section 17 of Family Court, Code of Civil Procedure is not applicable under the proceeding of Family procedure, as such, the order is not sustainable.”
4. Heard the learned counsel for the petitioner and respondent No. 1 and perused the material available on record.
5. The learned counsel for the petitioner has mainly contended that the impugned order is arbitrary, capricious as well as perverse, hence the same is liable to be set aside; that it is settled principle of law that though provisions of Civil Procedure Code, 1908 (hereinafter referred to as “C.P.C”) are not directly applicable to the suits covered by Schedule to Muslim Family Courts Act, 1964, (hereinafter referred to as “the Act of 1964”) in view of section 17, the principles thereof are being adopted and applied to those proceedings. In support of his contention, the learned counsel has relied upon the cases ofHUDAYBIA TEXTILE MILLS LTD and others v. ALLIED BANK OF PAKISTAN and others (PLD 1987 SC 512) andMEHTAB RAZA V. ADDITIONAL DISTRICT JUDGE, JHANG and 2 others (2006 YLR 2589).
6. On the other hand, learned counsel for respondents No. 1 and 2 has fully supported the impugned order. He has maintained that in view of section 17 of the Act of 1964, C.P.C. is not applicable on the proceedings under Muslim Family Courts Act, 1964, hence the learned Appellate Court has rightly set aside the order of learned trial Court remanding the case for disposal on merit in accordance with law.
7. The only question for determination before this Court is that whether in view of section 17 of Muslim Family Courts Act, 1964, the provisions of C.P.C. are applicable in the proceedings under the Act of 1964. There is no cavil to the proposition that the Family Court seized of proceedings of a civil nature and it is now well settled principles of law that even if the C.P.C. is not attracted by its own force in any procedural matter before a Court seized of proceedings of a civil nature, the equitable principles underlying the provisions of C.P.C. can be invoked in such proceedings. Hence, on this premises though the provisions of C.P.C. are not directly applicable to the suits covered by Schedule of the Act, 1964, yet principles thereof are being adopted and applied to those proceedings.
8. The learned trial Court while allowing Application has rightly observed that the respondent No. 1 took the minor from Toronto, Canada after getting permission from the Court of Toronto, Canada. Further,minor was born in Canada, he is Canadian National and Court of Toronto Canada has already appointed the petitioner/ respondent as guardian of the minor and such fact has also not been denied by the respondent No. 1. Hence, the judgment of Canadian Court; which appears to be; otherwise not denied by the petitioner, having been pronounced by a Court of competent jurisdiction on merit, conclusive as to the matter directly adjudicated upon and it is not open to Pakistani Courts to sit in appeal over a foreign judgment unless it offends against rules under section 13 of the C.P.C.
9. For the foregoing facts and reasons, the impugned order dated 03.12.2012, passed by the learned 3rd Additional District Judge, Karachi-East in Family Appeal No. 51 of 2012 is hereby set aside, being contrary to law and facts and the order dated 07.03.2012, passed by the learned XXth Civil & Family Judge, Karachi-East is maintained.
JUDGE
HANIF