PARVEEN Versus MUHAMMAD ASHAR
1. The present revisional proceedings and the impugned order against which they have been filed arose out of an application under section 25 of the Guardians and Wards Act submitted by the petitioner for the custody of three minor daughters of the parties who are said to have been removed from the petitioner's custody on the 20th October 1973, by use of force by the respondent and some other persons who for this purpose are said to have brandished revolver and rifles at the Airport when the children came to Lahore from Murree.
2. The three minors are Shirin Ashar born on 7-2-1962, Zareen Ashar born on 4-8-1963 and Aisha Ashar born on 20-5-1966. They were studying in Class VII, V and II respectively in St. Denny's High Schoal, Murree. The parties are spouses and are parents of the minors. On the 10th Novem ber 1973, a petition under section 25 of the Guardians and Wards Act was filed by the petitioner in the Court of the District Judge, Lahore, for the custody of these minors. She alleged that she was married to the respondent in the year 1961 according to Muslim Law. Within the first few years of the marriage, it had become obvious to the petitioner that she will have to earn income for the family since the respondent had no ostensible source of income and did not do any work. She started a boutique shop by the name of `Fantasia' in the year 1967-68 which has flourished into a prosperous firm. She has been paying the rent of the house in which the parties were living i.e. 1-Race View, Jail Road, Lahore. She further entered into a partnership with Messrs Salimur Rahman and others and opened a corner for jewellery under the name 'Fantasia Enterprises' in the Liberty Market, Gulberg. The respondent started getting money from her for some of his activities which were not liked by the petitioner. When she refused to satisfy these demands, there started some bickerings which resulted in a headlong clash in September 1973, when the respondent indicated that he intended to leave for abroad after the Eid Holidays. He demanded Rs. 30,000 which was not possible for the petitioner to pay. On this the respondent became furious and asked her to pay a sum of Rs. 10,000 which he had gifted to her in the year 1962-63 and also to return a sum of Rs. 6,000 which was in the name of Shirin Ashar, the eldest daughter. He also raised a row on the 3rd September, in the commercial establishment of the petitioner at Liberty Market and asked the partners of the petitioners to dissolve the: partnership. After returning home he started thrashing and beating the petitioner. He, apparently, was drunk at that time. On the 10th October 1973, he left the house and went away to 91-Jail Road, Lahore. The three minors came to Lahore for Eid Holidays by P. I. A. on the 20th October 1973. The petitioner went to receive them at the Airport. The children came out of the Airport, handed over their tickets to the petitioner, which are in her possession, and while the luggage was being collected the respondent along with some of his companions forcibly removed the three. minors from the petitioner and took them away. At that time the respondent was accompanied by his brother and a few other persons who brandished revolvers and rifles and pushed the petitioner aside, threatened the Security Officer who tried to intervene and also pushed aside the constable at the Airport. The petitioner gave F. I. R No. 12 in the Police Station. But the respondent got himself and his other colleagues bailed out from the Sessions Court and filed some other proceedings even against the police. He also filed a suit to get a relief about the minors from the Courts other than the Guardians Court and has levelled false allegations against the petitioner.
2. The petition is based on the petitioner's right of hizanat of the minor children.
3. Along with this petition an application under section 12 of the Guardians and Wards Act was submitted praying that the children may be allowed to go and stay with the petitioner for a fortnight as not only she was keen to meet them but also according to the reports received from some friends the children "are lost. bewildered and appear depressed." The learned counsel for the petitioner has explained that the petitioner had made this application because she knew that the children will have to go back to their school at Murree and she wished to have an opportunity of keeping them with her for a fortnight.
4. Before dealing with the later developments it would be fair to give a resume of the written statement of the respondent filed against the petitioner under section 25. He denied that the respondent is without an ostensible source of income. He gave particulars of his family in order to demonstrate that the family is not only respectable but also prosperous. He is one of the three partners of the most modern flour mills and has been in business independently. He has a strong liking for horses and his cherished hobby is racing. In the year 1958 he was registered as an owner with the Jockey Club of Pakistan. He had allowed to the petitioner to carry on business in deference to her wishes and had advanced a sum of Rs. 10,000 for this purpose. Again he advanced a sum of Rs. 20,000 for the jewellery business. He admitted that he lived with the petitioner in her tenanted house 1-Race View, Jail Road, Lahore but he had been paying rent of this house and all the other expenses. He had also been supporting the petitioner's mother. Till December 1972 he had no grievance against the petitioner but at the end of December 1972 she started neglecting the domestic affairs and lost interest in the welfare of the minors. The respon dent entertained suspicion about her fidelity and started having a close watch. He was also informed that the petitioner had developed association with one Tasnim Mirza and many a time he himself saw the petitioner with that man. He was convinced that she had immoral association with Mr. Tasnim. In Summer season of 1973 the petitioner alongwith three minor daughters who had come for vacations, went to Murree contrary to the wishes of the respondent and the respondent received information that Mr. Tasnim Mirza also managed to follow her. Both of them visited Bhurban a holiday resort which is at a distance of about 7 miles from Murree where they had gone in the company of the minors. The eldest daughter detected this unholy relationship and informed the respondent and after that she exhibited deep hatred towards her mother. They had also refused to see the mother when during the pendency of these proceedings they had gone to Murree, in order to appear in their promotion examination.
3. It was denied that the respondent ever demanded money but all the same' admitted that she issued cheques amounting to Rs. 16,000 in his favour which were dishonoured. He also admitted having given a thrashing and beating to her in the first week of September 1973, since there was a quarrel which originated from the attempt of the respondent to persuade the petitioner to refrain from her immoral and unholy activities. The allegation about the episode at the Airport was also denied. It was averred that the children came with the respondent because they did not like to go with their mother. It was admitted that a case under section 363/506, P. P. C. was. registered against the respondent, his brother K. M. Mazhar and his paternal cousin but they were granted bail before arrest. Later on this case was dropped after the respondent filed a writ petition before the High Court.
4. It was also averred that the respondent had made "the extreme sacrifice by picking up the applicant-a film artist and dancer who was on the decline of her career and gave her the status of a wife, ignoring his great family honour and prestige well-known in the sub-continent of India even prior to Partition of 1947." Regarding the mother of the petitioner it was averred that she is still a Christian and has got a shop at the premises of Convent of Jesus and Mary School.
5. Reply to the petition under section 12 was not filed nor was any order passed on it till the petitioner submitted an application on the 14th December 1973, for disposal of her application which was ultimately disposed of by the impugned order on the 20th February 1974.
6. Before dealing with the matter in hand it is necessary to give some other facts also in order to highlight certain intervening proceedings.
7. On the 17th November 1973 the petitioner submitted an application praying that the children may be sent back to St. Denny's High School for appearing in their promotion examination. Curiously enough this applica tion was contested by the respondent who came with the plea that they .could be admitted to Queen Mary College. He also stated that the children were not willing to go back to Murree. The learned District Judge, however, .passed an order on the same day directing the respondent to take the children to Murree and hand them over to the Principal who was further directed chat she shall not permit any outsider other than the father to contact the .children during this period. The children were then taken to Murree and handed over to the Principal on the 18th November 1973.
8. The petitioner took objection to this embargo placed in the order dated 17-11-1973, that no outsider except the father will be allowed to contact the children during the period of their stay at Murree. She stated -that she was not a stranger but had the right to Hizanat and prayed that she may be allowed to see the children at Murree at least for a day or even for some hours as may be determined by the Court. This petition was .again opposed by the respondent mainly on the ground that this will amount to review of the order dated 17-11-1973. The learned District Judge did not agree with this contention and allowed the petitioner to meet the children under the supervision of the Principal before the 30th November 1973 for two hours but he hinged this with a condition "provided the children also like to meet her." It may be stated that up to that date there is nothing .on record to indicate that the children did not want or were averse to see or meet their mother. I inquired from the learned counsel for the respondent from where did the learned District Judge get this indication but he could not point out anything on the record to this effect. He, therefore, stated that the learned District Judge might have gathered this from the proceedings of another suit filed by the respondent before a civil Court in regard to the custody of these children.
5. The petitioner went to Murree but admittedly she could not see the children who refused to meet her.
9. On the 20th November, 1973 an application was made by the res pondent for permission to get the school leaving certificates of these children from Murree School with a view to get them admitted in Queen Mary ,College and also to collect their bedding and winter clothing. This was ,opposed by the petitioner. At the time of arguments on the 26th November, 1973 prayer for securing the school leaving certificates was dropped but the respondent was allowed to bring the children and this bedding from the school.
10. Again an application was submitted on the 5th March 1974 by the petitioner for sending the children back to Murree School. This application, as ever, was opposed by the respondent who repeated his earlier stand that the children can be admitted in the Queen Mary College. The learned District Judge rejected this application on 19th March, 1974 and allowed the respon dent to secure the school leaving certificate. This order was also challenged by a revision petition but since the children had been admitted to the Queen Mary College and I had passed an order in this case on 4-4-74. I dismissed that petition as infructuous.
11. During the course of hearing of this petition for revision I suggested to the parties that the children may be admitted to a hostel. The learned counsel for the parties agreed to the suggestion. Mr. S. M. War appearing for the petitioner however stated the preference of the petitioner to be in favour of the hostel of St. Denny's High School. He further stated that even the hostel of Queen Mary College would be acceptable to the petitioner provid ed both the parents may have equal access to the minors according to the rules of the institution. Mr. D. M. Awan, learned counsel for the respondent insisted that the custody of the children should remain with the father. He further stated that since I had given an indication that the children would be sent to the hostel, the respondent had seen the Principal but she said that there was no seat in the hostel for accommodating the children.
6. I made an inquiry from the Principal, Queen Mary College through the Deputy Registrar but she showed her readiness to admit the children in the hostel. Faced with this situation the learned counsel came out with the plea that his client has no objection to keep the children in the hostel but the mother should not be allowed to see them.
7. In view of the agreement of the parties to send the children to a hostel, the only question that remained for consideration was whether this was a fit case for stopping the mother from having an access to the children. After hearing the learned counsel for the parties at length, I passed the following order on 4-4-1974:-
8. "For reasons to be recorded later, I allow this petition to this extent that the three children will be admitted preferably to the hostel of Queen Mary College by the respondent who will be responsible for bearing their expenses. If it is found that there are no seats in the hostel to accommodate them, they will have to be accommodated and readmit ted in St. Denny's High School at Murree. The parents will be equally entitled to visit and take the children to their respective homes in accordance with the following arrangement:
9. `After the admission of the children to the hostel on the first Sunday, the mother can take the children to her home; on the next Sunday it will be the turn of the father to take them to his house. This arrangement will continue on other succeeding Sundays. In the long vacations the mother will be entitled to keep the children with her for the first half of the vacations and then the children will be sent to the father for the next half of the vacations. In respect of other holidays also the mother and father will be entitled to the custody of the children alternatively. If there is one holiday the custody will be given according to arrangements made regarding Sundays. If there are more than one holiday, the turn of custody will be equally distributed in the manner of arrangement for long. vacations.
10. If any difficulty arises in the implementation of this order, a clarifica tion can be sought from this Court."
11. I now proceed to give my reasons in support of the direction to treat the parents equally in regard to the custody of the children and to allow both of them to have equal access to them.
12. The only disqualification in this connection which has been alleged by the respondent is that the petitioner is a woman of immoral character. In support of this it has been urged in the written statement that even children. entertained great disliking and hatred towards their mother since they have seen her alleged relations with Mr. Tasnim Mirza at Bhurban, at a distance of 7 miles from Murree. The case of the petitioner on the other hand is that this is a patent lie on the face of it. Her counsel insists that on account of the domestic disputes between the spouses the respondent forcibly took the custody of the children and since then has been keeping them under a state of terror and is also trying to poison their minds towards their mother and if the children are not allowed to meet the mother within a very short time, the children may be totally estranged towards her. The counsel emphasised that in view of this conduct of the respondent to try to create estrangement between the mother and the children, it is a matter of urgency that some action may be taken to frustrate this design in the interest of the welfare of the children.
13. The learned District Judge has dismissed the petition for temporary custody on the ground that there were serious allegations of immorality against the petitioner by the respondent and this matter cannot be decided without evidence and it was not in the interest of the children to allow them to be given into the temporary custody of tfie petitioner in view of these allegations of immorality against her. He further held that there was no urgency. He also considered the conduct of the children ire refusing to meet their mother at Murree. He called the three children to Court and gave opportunity to the petitioner to meet them. They did meet in Court but on the first occasion the eldest daughter said that they did not want to meet their mother.
12. In my view, the learned District Judge has acted illegally and with material irregularity in the exercise of his jurisdiction by holding that mere allegation of immorality is sufficient to refuse to allow the mother to have interim custody. He should have at least found out whether the allegation of the petitioner in regard to the forcible removal or the counter-allegations of the respondent in regard to the immorality of the petitioner were primal facie established on record of this case. There were certain allegations that the daughters had also witnessed the immoral connection between the, petitioner and Mr. Tasnim Mirza. He should have at least inquired from the minors about this. If he had made a probe in this matter in the manner suggested to which he was entitled as Guardian Judge-I would be adverting to this legal position when I come to deal with the questions of law involved in this case-he would have found out the truth or at least the proximate truth fulness of the case of either party. He called the children to Court, noticed the refusal of the eldest daughter but did not pursue this matter further. He also did not make a reference to so many documents on record, in order to~ judge the truthfulness of the parties' case.
13. There is on record of the Guardian Judge a copy of the report given by Mr. Muhammad Akram, Security Operator of the P I A dated 20th October 1973 which reads as follows:-
14. "On 20-10-73 1 was on duty from 0800 to 1400 L. T. in the V. I. P. en closure. At about 0815 I heard a noise coming from the Terminal Building. I rushed towards that place and saw that six or seven persons armed with semi-automatic weapons were standing there. One of them was heard saying, "Be away, this is the matter of wife and husband, we will not be responsible if something happens." After this they boarded their cars and went away. I enquired from few persons standing there and got this information that few persons came in their cars and took three children by force from Mst. Rakhshi the film dancer, who arrived from Rawalpindi by PK-611."
15. -On the 23rd October 1973 a copy of this report was sent by the Regional Controller of Civil Aviation and Airport Manager, Lahore Airport to the D. I.-G. Police, Lahore. He wrote that the matter is very serious and any repetition of such incident at Lahore Airport is liable to disturb the peace and tranquillity of this area. He requested for adequate protective measures to ensure that such untoward happenings at the Lahore Airport are nipped in the bud. Mirza Tahir Beg M. P. A. sent a letter to the Airport Manager on the 1st November 1973. He stated that he had read a news item about this incident in the local dailies of 21st October 1973. A copy of the F. L R. is also placed on the record. Prima facie these reports, particularly the report of the Security Operator and the Airport Manager make out a case of the removal of the children by force from the Airport.
16. The case of the respondent is that he entertained doubt about the fidelity and morality of the petitioner in December 1972 and thereafter had received information about her close relations with Mr. Tasmm Mirza. Eight days before this occurrence, on the 12th October 1973 he wrote a letter to the petitioner which read as follows:-
17. "Dear Erica,
18. I got your message through Pervaze at the Airport this afternoon. I was neither shocked nor surprised to learn about your decision because I knew all along that this marriage was headed this way. You are holding in trust little money for me i.e. Ten thousand and about six thousand (you know the exact amount). I intend leaving for abroad for about six weeks after the children have come and gone after their Eid holidays and we have come to some amicable settle ment about them.
19. I would have never bothered you for this but you know my financial position and I have to make all the arrangements for my trip in a hurry.
20. Kindly send the amount in shape of a cheque or cash if possible to Jail Road along with my passport."
21. It only signifies that the relations between the parties were estranged and the respondent had asked for a sum of Rs. 16,000 which were in trust with the petitioner since he was intending to leave for abroad. He had also given a hint about amicable settlement about the children. This is also there that his financial position is not up to the mark. In this letter there is absolutely no kind of immorality although it was written when the parties had separated. On the other hand it does support the petitioner.
22. I myself saw the children in my Chamber on the 27th March 1974. They told me that they had come from Murree on 20th October 1973 to see their parents. They found their mother at the Airport standing near the aircrafts. She was accompanied by Lehri (a well-known film artist) and a driver. Their mother received them. Their baggage cards were taken from them. When they came out from the Airport building they found their father and uncle standing there. Pausing for a moment it may be stated that it was clear from the story given by the children that they were not averse to going with their mother nor is there the slightest hint that they disliked their mother. Continuing the children's talk they then stated that they sat in the car without the father or the uncle using any force or intimidation and drove away with them. When I made a probe regarding their information about the moral character of their mother, the eldest child said that in the month of June, before they came to Lahore on holidays, they had seen their mother walking with one Mirza near their school which is situated at Kashmir Point. When I asked them what objection could one have if a lady who did not observe Parda, walks with a family friend, she first stated that she had been told by her teachers that girls should not meet boys but later on she changed this statement and said that this advice was not given to her by her teachers; she had heard her class-mates making this remark. None of those girls gave the slightest hint or indication that they had seen the petitioner or that gentleman doing anything which could be objectionable. I then asked the eldest girl whether they had complained about this matter to their father. She stated that she had complained about this to him after the 20th October, 1973. According to her, the reason why she did not intimate her father about this in the month of June was that their father was not there at Lahore when she and her sisters came on 10 days' vacations. I inquired from her why they had refused to meet their mother in the Court of the District Judge. She merely stated that they did not want to meet her. When I asked whether she or her sisters had any objection to go with the mother from Airport to her home on the 20th October 1973 she answered in the negative.
23. During arguments, the learned counsel for the respondent had stated that the children did not like to go back to attend school at Murree. I asked for the reasons for this. They told me that they were ordered to go to sleep at specified hours and were not allowed even to see the television them after. After quite a long time the eldest daughter said that they were not allowed even to offer their prayer (Namaz) after the time that they were expected to go to sleep.
14. It will appear from this that the story given by the children is very different from the one given by the respondent about the immorality of the petitioner or about their disliking to see her for this reason. It is apparent that whatever alleged disliking the children have entertained towards their mother is after the episode of 20th October 1973. They had come in the exclusive custody of the respondent who admittedly is on inimical terms with the petitioner. It is not difficult from this to conclude that their refusal to meet their mother in the school at Murree or before the District Judge is only on account of either some instructions given by the respondent, which they consider incumbent upon them to follow, or the respondent had been feeding them with the stories which might estrange them towards their mother. It was no doubt stated by the eldest daughter that finding that their uncle and father were present outside the Airport, they sat in their car of their own volition but it is quite possible that this testimony may also be a result of some directive from the respondent.
15. My impression is that the respondent is making the children a party to the dispute between him and his wife although this is something in which the children, in the interest of their own mental and psychological development, should not be involved. For all these reasons, I am of the view that the best course would be to keep the children away from this type of influence and by allowing equal access of the parents to them they should be saved from the ugly gossip of one against the other and to allow them to make up their own mind about the real facts. The estrangement between one parent and the children is necessary to be avoided at all costs. It is with this view that I have passed the order by which I have tried to ensure that both the parents should have equal opportunity of meeting their children, and of living with them temporarily during the period when their school is closed. This itself is a matter of great urgency.
24. I had an occasion to consider this aspect of the case in Nemat Ullah Qureshi and another v. Mst. Balqis Sitara P L D 1973 Lah. 442 as is clear from the following paragraph at pages 447 and 448 of the report:
25. "The question of welfare of the minor has been considered in his detailed order by the learned Guardian Judge and the discretion has been rightly and judiciously exercised by him. The provisions of section 1.15 of the Code of Civil Procedure are, therefore, not attracted to the facts of the case. Otherwise also there could be no doubt that the minors should not be deprived of the love and affection of the mother. In my view, it was, in fact, the duty of the petitioners them selves to make proper arrangement for meeting between the mother and the minors and this application under section 12 appears to have been given because the object of the petitioners has been to deprive the minors of their right to see and meet their mother. Before me also some indication was given by the learned counsel for the petitioners that the minors themselves are not willing to go to their mother. This shows that the petitioners are trying to bring up the two minors in a way that they may start either hating their mother or they may have no love and affection for her. In this view of the matter also it was in the best interest of the minors themselves that they should be given opportunity of meeting their mother at least at intervals."
16. There remains to be considered a preliminary objection raised by the learned counsel for the respondent about the maintainability of this revision petition. I will also like to support by authorities and precedents the right of the Court to act on the information furnished by the minors in an interview in camera in the absence of the parties although this right was conceded by the learned counsel for the respondent.
26. The objection about the maintainability of a revision petition is based on the observation in a Full Bench authority of the High Court of Sind & Baluchistan in Mst. Zaibun Nisa v. Muhammad Mozammil P L D 1972 Kar. 410. It was held in that case that "as section 17 of the said Act (West Pakistan Family Courts Act XXXV of 1964) has prescribed that the provisions of the Civil Procedure Code, except sections 10 and 11 shall not apply to Family Court, the litigant cannot invoke section 115 of the Civil Procedure Code, and that was also the view of my learned brother Muhammad Haleem, J. in Mst 11. Farida Parveen v. Qadeeruddin Siddiqui PLD 1971 Kar.118.
27. Section 25 of the West Pakistan Family Courts Act provides that "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 was held that the right of appeal or revision is not a matter of procedure and as such even in cases under the ..Guardians and Wards Act, section 14 of the Family Courts Act would govern -the provisions of appeal and since revision is a remedy under the Civil Procedure Code, it is not obtainable in view of the provisions of section 17 which do not apply section 115, C. P. C. to matters before the Family Court. The Full Bench dissented from the judgment of the High Court of West Pakistan in Muhammad Ismail v. Fazal Ahmad P L D 1969 Lah. 834, where it was held that the word `procedure' in section 25 of the Family Courts Act includes the provision of appeal and an appeal in guardianship matters is governed by the provisions of section 47 of the Guardians and Wards Act.
28. The judgment of the Full Bench is entitled to the greatest respect but I find myself unable to agree with the dictum that a remedy by revision can be equated with the remedy of appeal, or the word `procedure' in section 25 of the Family Courts Act cannot be interpreted to include `Appeal' or `revision'. Appeal is a matter of substantive right though the right may be a creation of an adjective law but this cannot be said of a revision under section 115, .C. P. C. which vests the Courts with discretion to interfere or refuse to inter fere with the order of the subordinate Court and can be exercised suo Motu without any application by the party aggrieved against any order of the subordinate Court.
17. In Luxmandas v. Chunilal A I R 1931 Nag. 17 it was held that there is a clear distinction between an appeal and an application for revision. Right of appeal is a substantive right created by statute and the powers of the Court of appeal are co terminus with those exercised by the Court of original jurisdiction. Such revisional jurisdiction is discretionary and when an application for revision is rejected, the subsisting order is that of the lower Court and not the order passed in revision. In the case of Akhtar Aksi v. Aftab Ahmad Khan and another P L D 1960 Lah. 57 a Division Bench of the High Court of West Pakistan consi dered the distinction between an appeal and a revision. It was observed as follows:--
29. "There is a fundamental distinction between appeals and revisions whether preferred before a civil Court or before the Rehabilitation Commissioner and that is, that an appeal is the right of a party, whereas interference in revision is a matter for the discretion of the authority invested with revisional powers.
30. In that case the Rehabilitation Commissioner while exercising the revisional power had referred to the proceedings before him as an appeal. After drawing the distinction between the two types of proceedings it was held that it is the right of a party that the tribunal that determines his case should be conscious of the bound of jurisdiction that it has to exercise. Since the tribunal bad preferred the proceedings before him as an appeal although in fact be was hearing a revision petition, the order was set aside and fresh bearing of the revision petition was ordered.
18. There is a category of cases where it has been held that in an appeal the tribunal must give an opportunity of being heard to the petitioner in a revision petition. But this category forms a group by itself. In all these cases, in the circumstances, envisaged by particular law before their Lord ships, in which the revision was provided, it was held that the revisional jurisdiction was akin to the appellate jurisdiction in those laws. In Ali Abid Zaldi v. Deputy Settlement and Rehabilitation Commissioner P L D 1967 Lah. 836 this view was taken in regard to nature of the revision petition under section 19 (1) of the Displaced Persons (Land Settlement) Act, 1958. It was held that "no doubt on the one hand this section authorised the Chief Settlement Commissioner to invoke his revisional jurisdiction but at the same time granted a right to a party concerned as well to move in the matter." The right of a party, however, was circumscribed by two conditions-
(a) that the application should be filed within sixty days, and
(b) that the petitioner should have obtained a certificate from the Settlement Commissioner concerned that the case involved is a question of law.
31. After these two conditions were fulfilled it became incumbent upon the Chief Settlement Commissioner to decide and give his own views on the point of law involved or its attending circumstances. The remedy though called a revision, turned into a sort of substantive or a vested right of a statutory appeal. The provisions of revision in the above section were, however, distinguished from the revisional jurisdiction conferred by section 115, C. P. C. It held that unlike section 115, C. P. C. the revision in section 19 (1) of the Displaced Persons (Land Settlement) Act, 1958 is competent in cases where an appeal may lie and since the Chief Settlement Commissioner cannot dismiss a revision, a substantive order will be that of the Chief Settlement Com. missioner and not of the subordinate authority.
32. There are at least two Supreme Court cases which have come to my notice which are also in this group. One of them has been referred to in the case of Ali Ahmad Zaidi. It is Tahir Ali and others v. Chief Judge, Karachi, Small Cause Court and another P L D 1963 5 C 147. The question in that case was whether sec tion 12(2) of the Limitation Act applied to a revision under the Karachi Rent Restriction Act. It was held that it does apply. The reason advanced for this was that the revisional power under that Act is more akin to an appeal and on this point the provisions of that Act were different from the pro. visions of section 115, C. P. C. It is necessary to reproduce the discussion at pages 149 to 151 of the report, which reads as under:
33. "It was contended on behalf of the appellants that in view of the provisions of section 12(2) of the Limitation Act, the time during which they were procuring a copy of the order of Rent Controller was not to be reckoned as part of the period of 30 days which was prescribed by subsection (1) of section IS of the Act. To this, it was answered on behalf of the respondents that section 12 (2) was not attracted to revision.
34. Hence the short question for consideration in this appeal is whether the expression `appeal' in section 12 (2) has been used in a restrictive sense so as to exclude a revision petition.
35. Upon construction of the word `appeal' used in section 12 (2) there has been divergence of judicial opinion. Some of the Courts in India adopted a restricted construction of the word `appeal' and laid down emphatically that it does not include revision. On the other hand some of the Courts construed the expression in a broader sense. There is, however, plainly no such preponderance in either direction so as to render it clear that there is any settled course of decisions on this question.
36. The word `appeal' has not been defined in the Code of Civil Procedure. In Wharton's Law Lexicon `appeal' has been defined as 'The judicial examination of the decision by a higher Court of the decision of an inferior Court'. In the Attorney-General v. N. J. Sillem and others (11 ERXHLC 703) Lord Westbury described an appeal in these terms:
37. 'An appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below.'
38. Story in his work on the Constitution (Volume II) has pointed out that the characteristic of an appeal is a revision of a judicial proceeding of an inferior Court so that the mode in which the power is exercised is wholly immaterial.
39. In the case of Nagendar Nath De v. Suresh Chandra De (59 I A 283) the question as to what amounted to 'an appeal' under Article 182 (2) of the Limitation Act arose. The following observations of their Lord ships of the Judicial Committee in that case are both suggestive and significant
40. There is no definition of `appeal' in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court asking it to set aside or revise a decision of a subordinate Court, is an `appeal' within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.'
41. This view also finds support from the observation of the Judicial Committee in Raja of Ramnad v. Kamid Rowthan and others 53 I A 74. Their Lordships while referring to civil revision petition observed:
42. `From the judgment an appeal in the form appropriate to such a case from the Munsif's Court, I.e., a Civil Revision Petition was, preferred to the High Court of Madras.'
43. From the above it is clear that the remedy which has been given to the aggrieved party by way of revision does not differ in essence from a. right of appeal.
44. It is true that under the Code of Civil Procedure a distinction has been made between a `revision petition' and `an appeal'. Under section 115 of the Code of Civil Procedure a revision petition only lies where an appeal does not lie. But here we are dealing with a revision petition which had been filed under a special Act, namely, Rent Restriction Act, 1953. It cannot be said that the special Act deals with revision petition in the same sense as it is used in the Code of Civil Procedure. In this Act, before the amendment of 1962, there was no provision for appeal. The only remedy available to an aggrieved party against the order of Rent Controller was to file a petition before the Chief Judge of the Small Causes Court, Karachi, to whom the power of revision had been delegated by the Central Government.'
45. At the relevant time subsection (1) of section 15 read as follows:
46. `The Central Government may on an application to be made within 30 days of any order made by the Rent Controller under this Act call for the record for the purpose of satisfying itself as to the legality or propriety of the order and as to the regularity of the proceedings, if any, in which the order was made, and may pass such order thereon as it deems fit, and may stay the order of eviction pending the hearing and disposal of the matter.'
47. Thus the revision provided in the above subsection has all the character istics of an appeal. In other wordy the revisional power under this Act is not subject to any specified restrictions like those mentioned to section 115, C. P. C. It is, therefore, clear that the word `revision' in this Act has not been used in the same sense as what is technically known as a revision under section 115 of the Code of Civil Procedure."
48. It will be seen from the portion of that judgment which I have underlined' above that it has been held that the power of revision under section 115, C. P. C. was not akin to an appeal.
19. Another case is the case of Commissioner of Income-tax, West Pakistan v. Fazlur Rahman PLD 1964 S C 410. The question in that case was whether an applicant for exercise of revisional jurisdiction under section 33-A of the Income-tax Act, 1922 is entitled to an opportunity of being heard. It was held that he is so entitled and if no such opportunity is given the order of the Commissioner, income-tax passed in such proceedings would be void and of no legal effect. At page 414 of the report it was observed as follows:
49. "The remedy under section 33-A is alternative to an appeal before the Appellate Assistant Commissioner or the Appellate 'Tribunal and should be similar in nature. In a case where the assessee acquires the right to file an application under section 33-A by waiving right of appeal it will not be reasonable that he should not get the same remedy from the Commissioner of Income-tax as he could have had from the appellate authority. By the amendment a right has been given to the assessee to file an application. He has to pay for this application a court-fee of Rs. 25 which would mean that he has a right to get a decision from the Income-tax Commissioner on the points which he has raised."
50. Again at page 416 it was observed as follows:
51. We do not think the mere absence of a provision as to notice can override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing to that party. A reference to provisions in other statutes will show that the existence of a provision of notice as to one proceeding has not been accepted as an argument against the need of notice in the case of a proceeding with respect to which there is no express provision of notice. Under the Criminal Procedure Code there is a distinct provision in the case of an appeal for notice of hearing to the appellant, but there is no such provision in the case of a revision petition in the High Court. It cannot be urged, however, that the right of hearing in a revision petition has thereby been excluded. In the Civil Procedure Code similarly there is a provision in Order XLI, rule 22 directing notice of the hearing of appeal to be given to the appellant and there is no such provision with respect to a proceeding under section 115, C. P. C. yet it cannot be said that it is not necessary to hear the parties affected in a proceeding under section 115, C. P. C. The fact that the proceedings are judicial or quasi judicial in nature is sufficient to entitle a party to a hearing in the absence of a specific provision to the contrary."
20. It maybe seen from these observations that unlike section 115, C. P. C. the provisions of section 33-A of the Income-tax Act could be invoked as an alternative to an appeal. The right has been given to the petitioner to file an application for which he has to pay court-fee. The main ground, however, for holding that the applicant had a right to be heard appears to be based on the principles of natural justice which entitle a party to a hearing in every judicial or quasi-judicial proceedings. From all the cases under this group, it is apparent that the provisions of section 115, C. P. C. have been distinguished from revisional power given in the Displaced Persons (Land Settlement) Act, Karachi Small Cause Court Act or the Income-tax Act. I am, therefore, of the view that the revisional jurisdiction under section 115, C. P. C. does not confer any substantive right on the petitioner. As held in Lala Bishambhar Nath v. Seth Achal Singh A I R. 1932 All, 651=140 I C 123 revision is really a matter between the high and the lower Courts. Since a party can move the higher Court in exercise of revisional jurisdiction, I will prefer to call it a privilege rather than a right.
52. Assuming for the sake of argument that revision is also a right, the next question is whether or not it is covered by the term 'procedure' in section 25 of the Family Courts Act. I have already stated that the word 'procedure' in the above section has been held in Muhammad Ismail v. Fazal Ahmad P L D 1959 Lah. 834 to include a provision of an appeal under the Guardians and Wards Act. I appeal is included in procedure, a fortiori revision must be included in it. What then is meant by 'procedure'.
53. Blackstone in his book 'Elements of Law' (1889 Edn.) at page 21 says
54. "Every Law consists of four parts:
55. 1st. The declaratory: whereby the rights to be observed and the wrongs to be eschewed are clearly defined and laid down.
56. 2nd. The directory: whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs.
57. 3rd. The remedial: whereby a method is pointed out to recover a man's private rights, or redress his private wrongs.
58. 4th. The sanction or vindicatory which signifies what punishment or penalty shall be incurred by such as commit wrongs."
59. Holland in his book `Jurisprudence' (Thirteenth Edition, 1924) at pages 358 and 359 explains the scope of remedial or adjective law as follows:
60. "A remedial right is in itself a mere potentiality, deriving all its value from the support which it can obtain from the power of the State. The mode in which that support 'may be secured, in order to the realisation of a remedial right, is prescribed by that department of law which has been called 'adjective', because it exists only for the sake of 'substantive law', but is probably better known as `procedure'. In the exceptional cases in which an injured party is allowed to redress his own wrong, adjective law points out the limits within which such self help is permissible. In all other cases it announces what steps must be taken in order duly to set in motion the machinery of the law-Courts for the benefit either of a plaintiff or a defendant."
61. The Law of Procedure is that the law which falls under the category of adjective law or remedial law as distinguished from substantive law.
62. In Wharton's Law Lexicon (Fourteenth Edition) the word 'procedure' is explained as a mode in which successive steps in litigation are taken. In A. K Gopulan v. The State of Madras A I R 1950 S C 174 the 'procedure' is defined as "the manner and form of enforcing the law." In State of Seraikella v. Union of India A I R 1951 S C 253 it was held that `procedure' means the mode in which successive steps in litigation are taken. In England the express on practice and procedure' is equivalent to the term `procedure' and it was held in the above case decided by the Supreme Court of India that:
63. "Practice in its larger sense like procedure, denotes the mode of proceed ing by which a legal right is enforced, as distinguished from the law that gives and defines the right."
64. The word 'practice' has been defined in Wharton's Law Lexicon (Fourteenth Edition) as follows: "the form and manner of conducting and carrying on suits. actions, or prosecutions at law or in equity, civil or criminal, through their various stages, from the commencement to final judgment and execu tion, according to principles and rules laid down by the several Courts."
65. In Hertha J. Sibbach v. Wilson Ltd. (312) 1 S. U. 85 L. Ed. 479 the following dictum was laid down:,
66. "The test must be whether a rule regulates procedure-the judicial process for enforcing rights and duties recognized by substantive law and for justly administering the remedy for redress for disregard or infraction of them."
67. At another place it is held in the same judgment:
68. "Is the phrase 'substantive right' confined to rights conferred by law to be protected and enforced in accordance with the adjective law of judicial procedure? It certainly embraces such rights. One of them is the right not to be injured in one's person by another's negligence to redress infraction of which the present section was brought"
69. In another American case Charles F. Kring v. State of Missouri 107 U. S. 221-227 L, Ed. 506 (510) it was held:
70. "The word 'procedure', as a law term, is not well understood, and is not found at all in Bourvier's Law Dictionary, the best work of the kind in this country. Fortunately a distinguished writer on criminal law in America has adopted it as the title to a work of two volumes. Bishop, Criminal Procedure. In his first chapter he undertakes to define what is meant by procedure. He says: "Section 2. The term procedure is as broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning what ever is embraced by the three technical terms, pleading, evidence and practice." And in defining practice, in this sense, he says, "The word means those legal rules which direct the course of proceeding to bring parties into the Court and the course of the Court after they are brought in" ; and evidence, he says as part of procedure. "Signifies those rules of law whereby we determine what testimony is to be admitted and what rejected in each case, and what is the weight to be given to the testimony admitted."
71. `Procedure' is not a term of art. It is quite broad in significance. It is what we call as remedial law or adjective law. `Substantive Law' is that portion of law which deals with rights conferred by law and those rights are 'protected and enforced in accordance with the adjective law of judicial procedure'. Procedure denotes the `mode of proceeding by which a legal right is enforced.' (See State of Seralkella v. Union of India A I R 1951 S C 253. It deals with the manner and form of enforcing the law. Holland describes rights not only as substantive but also as remedial. Procedure may include remedial rights. It will not, therefore, be correct to say that procedure is something which is distinguishable from or an antonym of right.
72. That a right of appeal may belong to the sphere of procedure is clear from Salmond on Jurisprudence (Twelfth Edition), page 461. In Chapter entitled The Law of Procedure, the author says:-
73. "It is no easy task to state with precision the exact nature of the distinction between substantive law and the law of procedure, and it will conduce to clearness if we first consider a plausible but erroneous explanation. In view of the facts that the administration of justice in its typical form consists in the application of remedies to the violation of rights, it may be suggested that substantive law is that which defines the rights, while procedural law determines the remedies. This application, however, of the distinction between jus and remedium is inadmissible. For, in the first place, there are many rights (in the wide sense) which belong to the sphere of procedure, for example, a right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party, and so on. In the second place, rules defining the remedy may be as much a part of the substantive law as are those which define the right itself . . .".
74. He further states:-
75. "What then, is the true nature of the distinction. The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions jus suod ad actiones pertinet using the term action in a wide sense include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purpose and subject-matter. Substantive law is concerned with the end which the administration of justice seeks, procedural law deals with the means and instruments by which these ends are to be attained. The latter regulates the conduct and relation of Courts and litigants in respect of the litigation itself ; the former determines their conduct and relation in respect of the matters litigated.
76. A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of the explanation. Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of administration of justice, but in what Court and within that terms
77. I must institute proceedings, are questions of procedural law for they relate merely to the modes in which the Courts fulfil their functions. What facts determine a wrong is determined by the substantive law."
78. He then says at page 462:-
79. "So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other."
80. This matter is dealt with as follows in Jurisprudence by Paton, III Edition, page 535
81. "English usage sometimes speaks of practice in a wide sense as including all the proceedings by which a cause is brought to judgment and execution ; sometimes it distinguishes practice, pleading and evidence. Procedure has been defined as `the body of rules that governs the process of litigation; practice as the rules, that make or guide the cursies, curiae and regulate the proceedings in a cause within the walls or limits of the Court itself.' On this usage procedure is a wider term than practice; the former covers everything from the issue of the writ to execution, the latter only the proceedings in an actual trial. A Victorian Court held that the phrase `practice and procedure' covered the manner in which a decree for the dissolution of marriage is made and the period to elapse before it is made absolute. To define procedure as Court process is really a description of it in terms of itself, but it is difficult to discover any purely logical test that will make a clear-cut division. Thus the rules of evidence regulate the process of the Court, but a power to make rules governing procedure has been held not to cover the rules of evidence."
82. Regarding the right of appeal the same author states at page 536:-
83. "Whether I possess a right of appeal or not is sometimes regarded as a question of substantive law, . . ."
84. I have underlined* the word 'sometimes' to show that it is not universally held that the right of appeal is a question of substantive law. The author discusses the jurisprudential division of rights into primary and remedial. At page 535 he states thus :- * Here in italics
85. "One of the orthodox classifications is that which distinguishes between substantive and procedural law, but it is difficult to draw a clear line between them. One suggested test is that substantive law determines rights, procedural law remedies; this, however, is inaccurate. Firstly, the whole law of remedies does not belong to procedure, and secondly. there are rights in the realm of procedure just as in that of substantive law. Thus, to take the first point, substantive law itself recognizes both antecedent and remedial rights, i.e., those which exist independent ly of wrong-doing and those that arise from the wrongful act or omission of another."
86. True that while illustrating this point that substantive law may also include remedial rights, the learned author does not describe appeal as an example. He, however, illustrates this point in the following manner:
87. "A power to recover damages is a remedial right, but it does not fall under the heading of `procedure'. If we adopt the view of those realists who deny that antecedent rights exist at all (since In effect the law consists only of remedies), then any definition of procedure which described it as covering all such actions would entail almost the total disappearance of substantive law. Secondly, the law of procedure creates rights-or more accurately claims, liberties, powers, and immunities-just as does the substantive law."
88. At page 538 he says:-
89. "Unfortunately no statute has drawn definite line to mark the boundaries of substance and procedure. The modern revolt against authority is leading many to reject the most useful classifications merely because they are difficult to formulate. The legal distinction between substance and procedure is not a priori one, but is pricked out by each system along the lines that appear expedient. Yet, although based on pragmatic tests, the division between substantive and procedural law is an essential one, as can be shown by a practical example. In a question concerning conflict of laws there is sometimes only one point of substance, but many problems in procedure. The convenience of leaving these questions to be determined according to lex fori shows the absurdity of rejecting the distinction between substance and procedure.
90. The practical problems which face a plaintiff are the choice of a Court, a decision as to the most appropriate form of action, the issue of a summons to get his opponent before the Court, and the most skilful use of the rules governing, pleading and proof in the hope that he may secure judgment and, if necessary, execution. Once judgment has been given the question of the possibility of appeal will arise. Yet not all these problems can be regarded as falling under the head of procedure. Whether an action lies in equity or at common law, in England, or in France, is determined by substantive law. The rules that mark the boundaries of contract and tort have in England been influenced by procedural requirements, but they can hardly be placed under the law of procedure. Forms of action are difficult to classify : the detailed rules belong to process, the broad distinction between trespass and case to substantive law. In the last analysis, it is a ques tion of convenience precisely where the line is drawn.
91. The functional test to which all procedural rules should be subjected is their practical efficiency in providing machinery for the prompt and reasonably cheap settlement of disputes on lines that do justice to both parties. Jurisprudence has often failed to realize the practical importance of procedural problems. The substantive law which defines our rights and duties is, of course, important to all of us, but unless the adjective law of procedure is a working machine, constantly translating these obligations in terms of Court orders and actual execution, the subtantive law might just as well not exist."
92. Salmond is more precise in this respect but Paton also concedes that the term `procedure' may have a wider or narrow significance and it is a question of convenience where precisely the line is drawn to distinguish between substantive law and procedural law. According to him `law of procedure creates rights.'
93. In its wider sense a statute dealing with procedural law will include all the methods to recover a man's private rights or to redress private rights or to redress private wrongs.
94. It will include all the procedural laws by which remedy for the enforcement of right or redress of wrong is made available. It deals with the mode in which successive steps in litigation are taken from the time of starting the litigation in Court up to the stage of its final termination which includes the culmination of execution proceedings. It is fur this reason that in books on jurisprudence `appeal' is dealt with generally under the chapter of `pro cedure.' It is is this wider sense that the word `procedure' has been used in the preamble to the Code of Civil Procedure which, as stated there "has been enacted to consolidate and amend the laws relating to the Courts of civil jurisdiction." Evidently this Code includes the provisions about appeals and revisions in its sections 96, 97, 100, 104, 109, Order XLIII, rule 1 and section 115, C. P. C. The entire Code deals with the machinery provisions for the settlement or disposal of disputes. Again it is in that sense that the West Pakistan Family Courts Act is an Act dealing with procedure. This will be clear not only from the scheme of that Act given above but also from its preamble which reads as follows:-
95. "Preamble.-Whereas it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters con nected therewith."
96. It is hereby enacted as follows:-
97. In Adnan Afzal v. Capt. Sher Afzal P L D 1969 S C 187, to which I will refer later, their Lordships of the Supreme Court also held that Family Courts Act brought about only procedural changes and not affected any substantial right. In these circumstances I find no reason to give a restricted meaning to the word `procedure' in section 25 of the Family Courts Act so as to exclude an appeal from its ambit.
98. The same result can be achieved by an analysis to section 25 of the Family Courts Act in the context of the scheme of that Act and the Guardians and Wards Act. It provides that the Court shall follow the procedure described in the Guardians and Wards Act "in dealing with matters specified in that Act."
99. Before interpreting these words it would be necessary to survey the scheme of the two Acts in order to find out the scope of the term `procedure' and the expression in dealing with matters specified in that Act" (i.e. the Guardians and Wards Act).
100. Chapter II of the Guardians and Wards Act deals with appointment and declaration of guardians. Section 5 deals with the powers of the parents to appoint guardian of person or property or both by will or other instruments. According to section 6 this power shall have to be considered to take away or derogate in the case of a minor who is not an European British subject, from any power to appoint a guardian of person or property or both which is valid by law to which the minor is subject. Section 7 deals with the power of the Court to make order as to guardianship, whenever it is in the welfare of the minor that such an order should be made. The word `Court' is defined in section 3(5) as meaning a District Court which is explained in subsection (4) of the same section as having the meaning assigned to that expression in the Civil Procedure Code and including a High Court in the exercise of its ordinary original civil jurisdiction. Section 8 deals with the persons entitled to apply for order. Then follow a number of procedural provisions. Section 9 provides for the territorial jurisdiction of the Court which can hear the petition with respect to guardianship of person or property. Section 10 deals with the form of application. Section 11 makes provisions for procedure on admission of application including the manner of service of persons interested. Section 12 deals with the power to make interlocutory orders for production of minor and interim custody and protection of person and property. Section 13 provides for hearing of evidence before proceeding for appointment or declaration of guardian. Section 14 makes the necessary provisions for proper determination which Court shall hear it. At this stage reference may also be made to section 4(a) which empowers the transfer of cases pending in one Court to another. Section 15 provides that more than one person can be appointed or declared as a guardian. Section 16 is about appointment or declaration as guardian for property beyond jurisdiction of the Court. Under section 17 are detailed matters which are to be considered by the Court, before appointing a guardian. In certain cases guardian should not be appointed vide section 19.
101. The next chapter deals with the duties, rights and liabilities of the guardians who are always subject to the supervision of the Court. In this Chapter section 39 deals with the grounds on which a Court can pass orders of removal of the guardian. There are certain supplemental provisions in Chapter IV. Section 43 authorises the Court to make order regulating the conduct of proceedings of guardian and enforcement of those orders. Sections 44 and 45 are penal provisions which provide for sanction for the implementation of the order of the Court. Section 47 deals with the orders which are appealable and provides that an appeal shall lie to the High Court from an order made by a Court under the different provisions specified in clauses (a) to (j ) of that section. Section 48 deals with the finality of the orders but this has been made subject to section 115 of the Code of Civil Procedure.
102. It will be seen that this Act deals not only with the powers and procedure of appointment or declaration as guardian but also with the right to such appointment or declaration vested in certain parties. This Act can, there fore, be appropriately said to be the aggregation of substantive as well as procedural law on the subject of Guardianship. It not only provides certain rights but also machinery of enforcement of those rights. The machinery provisions are included in all the Chapters. It provides for the forum to making application for appointment or declaration as guardian, for supervision of the persons appointed as guardian and for the removal of guardians. It makes provisions for power of transfer of cases determination of the Court which should decide a particular matter where proceedings are filed before two different Courts, territorial jurisdiction of the Courts, supervisory jurisdiction of the superior Courts under section 115, C. P. C. and the right of a party to challenge orders passed under this Act by way of appeal.
103. As distinguished from this Act the West Pakistan Family Courts Act is a procedural Act which deals with the establishment of Family Courts Act (section 3), qualification of Judge, Family Court (section 4), exclusive jurisdic tion of Family Courts in matters specified in the schedule including the matters of custody of children and guardianship (which are the subject-matters of Guardians and Wards Act) (section 5), places of sitting of the Family Courts (section 6), the manner of institution of a suit (section 7), the procedure to be adopted by the Court after the institution of the suit (section 8), filing of the written statements (section 9), pre-trial proceedings (section 10), hearing of evidence (section 11), announcement of judgment and award or decree (section 12), manner of enforcement of that decree (section 13), the manner in which decrees and decisions can be challenged by way of appeal (section 14), power of Family Court to summon witnesses (section 15), power of the Court to take proceedings for Contempt of Family Court (section 16), applicability of some provisions of the Oaths Act (sections 8 and 11 of the Oaths Act) and declaration that the provisions of the Evidence Act and other provisions of the Civil Procedure Code shall not apply to the Family Courts (section 17), appearance of certain persons through duly authorised agents (section 18), provision of court-fee payable on plaints (section 19), power of Government to invest any Judge of a Family Court with powers of Magis trate Ist Class to make order for maintenance under section 488, Cr. P. C. (section 20), provisions that the Act shall not affect provisions of Muslim Family Laws Ordinance or rules made thereunder (section 21), bar on the power of the Family Court to issue an injunction or stay proceedings before a Chairman or Arbitration Council (section 22), bar on the power of Court to question validity of marriages registered under the Family Laws Ordinance (section 23), power of the Court to communicate certain illegalities to the Union Council (section 24), power of the High Court to ask the District Court to make orders of transfer of cases from one Court to another (section 25-A) and stay of proceedings by the High Court and the District Courts (section 25-B). Section 25 which has already been reproduced above provides that the Family Court shall be deemed to be a District Court for the purposes of Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act shall in dealing with matters specified in that Act follow the procedure described in that Act.
104. The entire Family Courts Act provides for the machinery by which certain matters specified in the schedule of the Act can be disposed of. This machinery consists of not only the provisions of a forum in the form of Family Court where such disputes can be instituted for determination but also the right of the aggrieved party to challenge the decisions of the Family Court before a higher forum specified in section 14. Section 5 read with Schedule to the Act, provides that even the matters relating to custody of children and guardianship matters have to be decided by a Family Court which has ex clusive jurisdiction over them notwithstanding the provisions of the Guardians and Wards Act. In section 25, however, it was clarified that for the purposes of Guardians and Wards Act, a Family Court shall be deemed to be a District Court. There is a non obstante clause which becomes necessary in view of the fact that the provisions in the Family Courts Act were different in many a particulars from the provisions of the Guardians and Wards Act.
105. It was, therefore, provided that notwithstanding anything contained in the Family Courts Act, the Family Court (acting as a District Court) shall in dealing with matters specified in the Guardians and Wards Act, follow the procedure prescribed in that Act. By declaring that the Family Court is a District Court it has been made possible to apply the Guardians and Wards Act in its entirety to cases of custody of children in guardianship matters.
106. As stated above, the Guardians and Wards Act makes provisions for certain rights of appointment or declaration as guardian, right to apply for such appointment or declaration and the power of the Court to supervise the guardians and to remove them. All these matters are covered by the expression "in dealing with matters specified in that Act." The other pro visions would, therefore be covered by term `procedure.' They are all procedural provisions would at from this point of view it will be evident that all those provisions of procedure which are given in the Guardians and Wards Act will apply to case in the absence of the non obstante clause in section 25 the provisions of the Family Courts Act, would have applied.
107. There are cases which have been relied upon by the learned counsel for the respondent, and which lay down that a right of appeal is distinguished from mere procedure, and a statute destroying an existing right of appeal or placing an onerous condition on it shall not be given retrospective effect unless the statute is clear on the point. On the other hand no person has any vested right in mere procedure and any change in procedural law will operate retrospectively. It is not necessity to refer to all the rulings in this con nection. It will be sufficient to refer to the case of Colonial Sugar Refining Co. Ltd. v. Irving 1905 A C 369 which has been relied upon in all the numerous cases. In this case the judgment was delivered by Lord Macnaghten, who stated:
108. "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that. in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judicature Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty-in-Council a right vested in the appellant at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in the pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case, there is an interference with existing rights contrary to the well-known general principle that statues are not to be held to act retrospectively unless a clear intention to that effect is manifested."
109. This view was adopted by the Supreme Court of Pakistan also in State v. Muhammad Jamil P L D 1965 S C 681 and Muhammad Alem v. State P L D 1967 S C 259. In re: Joseph Suche & Co. Ltd. (1879) 1 Ch. D 48. Jessel M. R. studied the rule as follows:-
110. "It is the general rule that when the Legislature alters the rights of the parties by taking away or conferring any right of action, its enactments, unless in express terms though applied to pending actions, do not affect them. But there is an exception to this rule, namely, where enactment merely affects of section."
111. As noticed in Craies on Statute Law (7th Edition), page 401, this rule was for the first time distinctly enunciated by the Court of Exchequer in Wright v. Hale (1860) 30 L J Ex. 40 (42). "I have always understood", said Pollock C. R., "that there is a considerable difference between laws which affect vested rights and those laws which merely affect the proceedings of Courts: as, for instance, declaring what shall be deemed good service, what shall be the critertion to the right to costs, how much costs shall be paid, the manner in which witnesses shall be paid, or what witnesses to party shall be entitled to, and so on . . . I do not think a matter of that sort can be called a right in any sense in which Lord Coke in his Institutes has spoken of rights." In Gardner v. Lucas (1878) 3 App. Cas. 582 (603) Lord Blackburn while dealing with the question of retrospectivity held that alterations in the form of procedure are always retrospective. The word "form of procedure" is to be marked.
112. But this principle does not go against the word `procedure' being inclu sive of an appeal. It does not really go to the extent of saying that a right of appeal is as such distinguishable from a procedural right. Mere distinction was made between a vested right of appeal and a mere matter of `procedure.' As rightly pointed out by Pandrang Row, J. in the case of S. Girdharilal Son & Co. v. B. Kappini Gowder and others A I R 1938 Mad. 688 "The real test, when deciding whether a particular provision of law is to be given retrospective effect or not, is not whether the law is a law of procedure or substantive law, but whether the law in question affects or impairs existing rights including rights of action which are substantive rights. There, existing rights would be adversely affected. Courts decline to give retrospective effect unless compelled thereto by the words of the statute. That a right of action is a substantive right is not disputed ; there is considerable authority in support of that position and it is not necessary to refer to the large number of cases which bear on the point. It is enough to mention (1876) 1 Ch. D 48, (1898) 2 Q B 547."
113. The case of Adnan Afzal v. Capt. Sher Afzal P L D 1969 S C 187 is the final word on the subject. In that case, an application under section 488, Cr. P. C. was sub mitted before a Magistrate on the 4th September 1964. The Family Courts Act was enforced in Sialkot District to which the case pertains from the 21st February 1967. After its enforcement an objection was taken on the basis of section 5 of the Family Courts Act that that Court had exclusive jurisdic tion over the matters under section 488, Cr. P. C. This objection was given effect to. The High Court agreed with this and dismissed the revision petition. The matter was then taken to the Supreme Court. A question was raised whether the Family Courts Act affected pending proceedings or will it have retrospective effect. After discussing the case of Colonial Sugar Refining Co. Ltd. and other cases it was observed:-
114. "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to pro cedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause incon venience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."
115. After comparing the provisions of section 488 with the provisions of the Family Courts Act, their Lordships held that the Family Courts Act had changed the forum, altered the method of the trial and empowered the Court to grant better remedies. In every sense of the term, therefore, it has brought about only procedural changes and not affected any substantive right. It was, therefore, held that the Act affected the pending proceedings also. In this case also a distinction was drawn between mere matter of procedure as such or form of procedure and any existing right. It was, however, held that the Family Courts Act brought about only `procedural changes and not affected any substantive rights.' A note of caution was, however, given that even in procedural statutes the Courts will not favour an interpretation giving retrospective effect to the statute if the result is not to promote justice but consequential embarrassment or detriment to the parties concerned.
116. Clearly, therefore, this judgment envisages that even in procedural statutes which deal with procedure only and not substantive rights, there may be rights which shall not be deemed to have been taken away retrospectively unless the law is clearly retroactive in character. A statute may, therefore, be pro cedural statute but may still confer certain rights which may be of the same character as substantive rights but it does not mean that to that extent it ceases to be a procedural statute.
117. The other question is whether it is open to a Court in cases under the Guardians and Wards Act to examine the minors in the absence of the parties to the proceedings. In the case of Malik Khizar Hayat Khan Tiwana v. Mst. Zainab Begum and others P L D 1967 S C 402, the nature of these proceedings was considered by their Lordships of the Supreme Court and it was held that the Courts should not lose sight of the fact that they exercise a parental jurisdic tion and it is not a jurisdiction in which there can by its very nature be any scope for undue adherence to the technicalities. At page 409 of the report it is observed:-
118. "This argument is not without force. Even if the procedure of the Code can be said to be attracted to proceedings under the Act where no specific provision has been made in the Act itself that must be under the terms of section 141 of the Code itself only "as far as it can be made applicable". This clearly indicates that there can be no rigid adherence if the nature of the cause or matter itself gives a contrary indication. Apart from the scheme of the Act itself to which the learned counsel for the respondent has with reason adverted we are also of the view that in a proceeding under the Act the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. The Court in such cases is really exercising a parental jurisdiction as if it were in loco parentis the minor. This is not a jurisdiction, therefore, in which there can, by its very nature, be any scope for any undue adherence to the technicalities."
119. In Juma Khan v. Mst. Gul Ferosha P L D 1972 Pesh. 1 there was no evidence on record of income of the applicant. It was held that evidence concerning his income given in proceedings under section 488, Cr. P. C. can be taken into account. Reliance was placed upon the case of Malik Khizar Hayat Khan Tiwana in support of this proposition. This matter came up for consideration before the House of Lords.
120. In official Solicitor v. K. and another (1963) All E R 191 (H L), certain confidential reports were not disclosed to the parties. The Court of appeal held that disclosure must be made even if it is harmful to the ward. This was dissented from by the House of Lords and it was held that interested parties to wardship pro ceedings, even parents of the children concerned have no absolute right to see confidential reports that have been lodged with the Chancery Division by the Official Solicitor as the guardian ad litem of the children, for, since the welfare of the infants (rather than arbitrament between interested parties) is the paramount consideration, and purpose of the jurisdiction, disclosure of such reports must remain a matter for the Court's discretion, although the occasions when a Judge will decide against disclosure on the ground that the welfare of the infant outweighs the principle that a case should be decided on information that a party has not seen and cannot challenge, will be rare. It was further observed that where the Judge decides that reports should not be disclosed to the parties themselves he may avail himself of the practice of allowing disclosure to their counsel. In this case the ward was described as `child in law' of the Court exercising the ancient prerogative and parental jurisdiction,
121. I am, therefore, of the view that in the interest of the welfare of the minor it is open to the Court to examine the minor without affording an opportunity to the parties to the case to be either present or to cross-examine him if facts justify this. I may, however, state that the departure from the age old principle of natural justice of giving full opportunity of being heard and of participating in the proceedings of the parties to the litigation should be made in cases of exceptional nature and should not generally be resorted to.
122. In the present case the children would not have been even as responsive as they proved to be, if they had been examined in the presence of the parties. It was for their welfare to adopt this method of examination.
123. For these reasons I had passed the order dated 4-4-1974 allowing the revision petition. Since no order about cost was announced on that date I leave the parties to bear their own costs.
124. K. B. A. Petition accepted.
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