IN THE HIGH COURT OF SINDH, KARACHI

Const. Petition No. 765 of 2017

Ghulam Muhammad…………………………………………….……….…. Petitioner

Versus

District & Session Judge Karachi West and 02 others……………...Respondents

Date of Hearing: - 04.08.2017

Syed Abdut Tawwab, Advocate for the petitioner

None for the respondent

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: Through instant petition, the petitioner impugns the order dated 30.03.2016, passed by learned District Judge Karachi West in Family Appeal No.24/2014. Instant petition was admitted subject to maintainability on the point of Laches. Notice was issued to the respondent which was not served as she was not traceable on the given address.

2. Learned counsel for petitioner points out that aforesaid Family Appeal was heard and decided in absence of respondent as such instant petition may be heard. He submits that appeal filed by the petitioner was dismissed only on the ground that same was filed with a delay and without seeking of condonation. He further submits that the impugned judgment of trial Court was passed on 10.05.2014, the petitioner filed application for certified copy on 17.05.2014 but copy was supplied to the petitioner after considerable delay as on 19.07.2014. He contends that during this period, file remained in the Chamber of learned trial Judge as such this delay was unavoidable. He submits that appeal was filed on 09.08.2014 and if period from filing of application for certified copy upto supply of certified copy is deleted, then appeal was filed within time. According to him, as appeal was filed within time, therefore, there was no need to file any application for condonation of delay.

3. After hearing arguments, I have gone through the entire record. In fact the petitioner has challenged the order of Family Judge passed on an application under Section 10 read with Section 25 of Guardian and Wards Act. Matters of custody of minors are very delicate and touchy in nature and for deciding the same, utmost consideration is to be given to the welfare of minors. In my view, matter pertaining to custody of minor should be decided on merits only and same ought not to be decided merely on the basis of technicalities. As far as delay in filing appeal is concerned, learned counsel for the petitioner has properly explained the same and when it is the position that certified copy was supplied to him after a considerable delay, then period from filing of application up to supply of copy is to be deleted at the time of calculation of period of limitation.

4. In view of the above position of affairs, I hold that family appeal filed before learned Appellate Court was within time. As such impugned order is set aside and learned Appellate Court is directed to dispose of the aforesaid appeal on merits, after giving opportunity of hearing to the parties. Instant petition is disposed of along with listed applications.

J U D G E