MUHAMMAD SAEED Versus SAKINA BIBI
ORDER
An ex parte order with regard to guardianship of two minor daughters of the parties bearing the names Mst. Rahila Kausar and Mst. Shakila Kausar respectively aged 6 and 4, was passed on 11‑5‑1985 by the learned Judge Family Court, Faisalabad against the respondent Mst. Sakina Bibi, the mother of the minors; who applied for its being set aside for the reason that she had not in fact been served with any summones and only fictitious proceedings had been drawn up to show her service. The application was contested by the petitioner and was set down to be tried on the issues relating to sufficiency of cause and limitation. The parties led evidence of their choice, upon the consideration whereof learned Family Judge rejected the application by his order, dated 31‑1‑1987 with the conclusion that she had not been able to substantiate her pleas.
2. In an appeal thereagainst filed by the respondent, a learned Additional District Judge reconsidered the evidence existing on the record and reached a different conclusion to the effect that she had not been served and the ex parte proceedings were taken on the basis of a clandestinely drawn up report. He consequently accepted the appeal by his judgment, dated 14‑10‑1987 to set aside the trial Court's ex parte decree, dated 11‑5‑1985 and remanded the case for its being decided after providing opportunity to her to contest. He also ordered the minors to be placed in the same custody in which they were at the time of the institution of the application under section 25 of the Guardians and Wards Act.
3. The applicant father of the two minors has now maintained this Civil Revision against the judgment thus passed in the appeal below and learned counsel contends that the grievance is confined only to the direction contained with regard to the minors being placed in the same custody as before. I do not see why the learned Additional District Judge may not have passed this order which was really a rational consequence of the reversal of the order passed by the trial Court. This principle of restitution is inherent in the exercise of judicial authority so that status quo ante can be required to be restored. This precise principle is contained in the provisions of section 144 of the C . P. C . and even section 151 thereof avails for such a purpose. Though the provisions of the C.P.C. do not as such apply to the Family cases, the principles thereof, to the extent that they are based on equity and good conscience, would apply. Dissenting view taken in the appeal below on the basis of record is in lawful exercise of appellate power and the same is amply supported thereby so that there cannot be said to have; been made any error of jurisdiction in the passing of such an order.
4. Learned counsel has conceded before me that despite a periods of more than two months having elapsed eversince, the petitioner has not submitted to the direction contained in the appellate order. Apart from the fact that he has thereby exposed himself to the liability of being proceeded against for disobedience of a lawful order passed by the appellate Court, he has also rendered himself disentitled to the exercise of discretion in his favour by a Court of law.
5. In the above view of the matter, I do not find any substance in this civil revision which, even otherwise, is not maintainable in law and reference may in this behalf be made to Mst. Tehseeri Akhtar v. Mahmood‑ul‑Hassan P L D 1971 Lah. 875, Mst. Zaibun Nisa v. Muhammad Mozammil P L D 1972 Kar. 410 (F . B .) and Sakhawat Ali and another v. Mst. Shui Khelay P L D 1981 SC 454, as re‑affirmed in Ihsan‑ur‑Rehman v. Mst. Najma Parveen P L D 1986 SC 14. It is deplorable that the counsel has not considered it necessary to consult the case‑law on the subject which is consistent and has been constantly pouring in since almost two decades now.
6. For all the foregoing reasons, this civil revision is dismissed in limine.
M . B . A . / M‑578/ L Revision dismissed.