MUHAMMAD HAYAT vs ADDITIONAL DISTRICT JUDGE 1ST, OKARA and 2 others

ORDER

' Petitioner through this Constitutional petition has prayed for declaration that the orders dated 23- 5-1989 and 28-1-1990 passed by the respondents Nos. 1 and 2 respectively are without jurisdiction.

The relevant facts are that the respondent No, 3 filed a petition under section 25 of the Guardians and Wards Act for custody of minors. The same was tried and disposed of by respondent No,

2. The petitioner filed an appeal in the Court of District Judge, who entrusted the same to respondent No,

1. This appeal was dismissed. The petitioner has now impugned both the judgments through this constitutional petition. The petition was admitted to hearing and notices were issued to respondents.

2. The learned counsel for the petitioner has argued that respondent No, 2 had no jurisdiction to hear and decide the petition under Guardians and Wards Act as he was not a Senior Civil Judge.

On the other hand, the learned counsel for respondent No, 3 has argued that the petitioner never raised this question in any forum earlier, therefore, cannot take up this plea for the first time in the constitutional jurisdiction.

3. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record. The Deputy Registrar (J) was directed to submit report as to which Court is competent to adjudicate the matters under Guardians and Wards Act.

4. The report has been submitted, according to which only Senior Civil Judges in the Province are competent to hear and decide the guardian matters but Lahore is exception to this. The jurisdiction is conferred under section 4-A of the Guardians and Wards Act which reads as under:-- "Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.--(1) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a District Court, or authorise the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provision of this section."

' It is only Lahore, which has a permanent Court of Guardian Judge while elsewhere the Senior Civil Judges are authorised under subsection (1) of the section 4-A of the Guardians and Wards Act vide notifications issued by this Court from time to time. The latest notification is dated 14-3-1990 according to which S.C.J., Okara has been conferred powers under section 4-A of the Guardians and Wards Act to dispose of, from the date of taking over their charge, proceedings under said act.

5. The confusion seems to be on account of memo dated 28-1-1987 according to which family cases instituted with effect from 1-2-1987 were to be entrusted to and decided by the 1st Class Civil Judges. But this memo. Will not apply in view of the provisions of section 4-A of the Guardians and Wards Act reproduced above and notifications issued thereunder.

6. The admitted position is that Fazal Zada Khan was not a Senior Civil Judge, therefore, he had no jurisdiction in this matter. Since it is a case of total lack of jurisdiction and proceedings are coram non judice, therefore, objection can be raised at any stage.

7. The result is that this petition is allowed. The impugned orders dated 28-1-1990 and 23-5-1989 are set aside and the case is remanded to Mr. Allah Bakhsh Ranjha, Senior Civil Judge, Okara who was empowered to exercise powers of Guardian Judge, Okara vide notification dated 14-3-1990 for expeditious disposal and in any case the matter should be decided by 30-6-1990 even if has to conduct day-to-day proceedings. There is no order as to costs. The parties to appear before the learned Senior Civil Judge, Okara on 21-4-1990.