Constitutional Petition No.S-1094 of 2011
Muhammad Shaheed Khan --------------------- Petitioner
Versus
Piya Dharani & Others ---------------------- Respondents
1.For hearing of Review Application No. 29/2013.
2.For hearing of CMA No. 506/2014.
3.For hearing of CMA No.6687/2014.
{Counter Affidavit to Review Application filed by the petitioner as flagged}
{Statement filed by the Advocate for petitioner as flagged}
{Statement filed by the Advocate for respondent No.1, as flagged}
{Intimation notice issued to Advocate for petitioner as flagged}
Heard on 10th May, 2014.
Mr. Choudhry Muhammad Iqbal, Advocate for petitioner.
Mr. Abdul Qadir Khan, Advocate for a/w respondent No.1.
>>>>>>>>> <<<<<<<<
SYED MUHAMMAD FAROOQ SHAH, J.:- The instant Review Application alongwith other listed applications, filed by the Respondent No.1, arises out of the order passed by this Court on 01.10.2013, whereby Constitutional Petition No. S-1094 of 2011, filed by the respondent No. 1 for handing over the custody of minor Mustafa Muhammad Khan on every second Friday of each English Calendar Month from 08:00 a.m. to 04:00 p.m., on Eid occasions and on his birthday be handed over to the father/petitioner, whereafter the minor will be handed over to his mother/respondent No.1, was accorded.
2. Perusal of record transpires that on presentation of captioned Petition notices were issued to the respondent No. 1 (mother) who was duly served and due to her non-appearance, for the sake of indulgence notices were repeated to procure her attendance before this Court, subsequently, vide order dated 17.9.2013, the matter was fixed for hearing of main petition on its merits. It appears that on hearing the petitioner’s counsel and perusal of available record, the petition was disposed of. Penultimate paragraph No. 4 of the said order (dated 01.10.2013) is reproduced herein below for sake of convenience:
“4. Welfare of the minor to hold meeting of two hours in the court room atmosphere, should not be ignored as children from broken houses/families have psychological problems on their lives, for educational achievement and betterment, psychological wellbeing and social behavior of child affection of both parents is essential; particularly, Karachi courts dealing with the Guardian & Wards cases are having no proper arrangement of holding such meeting in court rooms, therefore, to familiarize the minor and for healthy relations, congenial atmosphere to dispel fears it would be appropriate that the petitioner, who comes from Saudi Arabia to meet his minor child once in a month, may be allowed sufficient time to live with his minor son. By exercising quasi parental jurisdiction, the orders dated 11.10.2012 and 14.4.2011 are hereby modified with the directions that on every second Friday of each calendar month including on each birthday occasion and on both Eids occasions, the respondent No. 1 should handover the custody of the minor Mustafa Muhammad Khan to the petitioner at 09:00 a.m. before the trial court, who shall take the minor with him at some reasonable four or five Star Hotel, preferably Pearl Continental, Sheraton or Awari Towers and return the custody of the minor at 03:00 p.m. after depositing passport by the petitioner in the trial court. However, the learned trial court is directed to dispose of the matter expeditiously on merits at an early date, but without any undue haste.”
3. Contents of the application under Section 114 read with section 151 CPC (Review Application No. 29 of 2013) reveals that applicant/the respondent No. 1 being dissatisfied with the final order, reproduced as supra, has averred that father is enjoying the custody of the minor in the premises of the trial court for two hours and now he was having the intention to take the custody of minor for the whole day and it shall be inconvenient to pass whole day with the respondent and, therefore, the order passed by this court has seriously prejudiced by the applicant/mother. The applicant/mother has prayed that the meeting of the minor with the father may be allowed within the court premises where the applicant/mother may also be present as per order of the trial court. Subsequently, another application under section 151 CPC (CMA No. 506/2014) has also been presented in the office of this court on 18.1.2014 by the applicant/mother’s counsel, wherein a prayer for modification of order dated 01.10.2013 has also been made.
4. Conversely, learned counsel for the petitioner/father has filed counter affidavit to the Review Application and submitted that Review Application having no merits for consideration be dismissed.
5. Mr. Qadir Khan, learned counsel representing the applicant/mother of the minor placed his arguments on merits of the case, such as the petition suffers from laches, and that no writ petition is maintainable against the interim order and that this Court has inherent powers to recall its order and that the right of visitation as allowed by this court, seeking interim custody of minor by the father has not categorically prayed for, hence it cannot be granted. It is also categorically stated that interim order passed under Guardian & Ward Act is appealable, hence writ petition is not maintainable. To support his contentions learned counsel placed reliance on the cases reported as MUJAHID HUSSAIN NAQVI V/S AZAD GOVERNMENT & OTHERS (PLD 2007 SC (AJ&K) 92), HUSSAIN BAKHSH V/S SETTLEMENT COMMISSIONER, RAWALPINDI & OTHERS (PLD 1970 SC 1), MUHAMMAD SHARIF & 3 OTHERS V/S SULEMAN & 4 OTHERS (PLD 1981 Lahore 321), MAZHAR-UL-HAQ ALIAS MAZHAR ABBAS V/S GHULAM MUHAMMAD & 2 OTHERS (2005 CLC 1169), JAWAD MIR MUHAMMADI & OTHERS V/S HAROON MIRZA & OTHERS (PLD 2007 SC 472), MUHAMMAD DIN V/S ABDUL GHANI & ANOTHER (2012 SCMR 1004), MST. HAFEEZA BAROHI V/S GUARDIAN JUDGE/FAMILY JUDGE & ANOTHER (1987 CLC 1630), SHAZIA AKBAR V/S MAQSOOD AHMED & ANOTHER (2012 YLR 2266) and MUHAMMAD RAMZAN V/S SENIOR CIVIL JUDGE, ETC. (2012 UC 82).
6. On the other hand, Mr. Choudhry Muhammad Iqbal, learned counsel for the petitioner/father submits that scope of review is restricted to some mistakes or errors apparent on the face of record, discovery of new or important matter or evidence which despite due diligence was not in the knowledge of the petitioner cannot be considered to review the order. According to learned counsel there is no sufficient ground for a review therefore, the listed application for review be dismissed. Learned counsel next contended that the right of an appeal or review is a substantive right and not a mere right of procedure, thus section 114 of Civil Procedure Code would not applicable and the provisions of the code providing for review are not attracted to the procedure under Guardian & Ward Act. While placing reliance on 2007 SCMR 755 in the case of Shaikh Mehdi Hassan V/S Province of Punjab, learned counsel contended that mere fact that another view of the matter is possible or conclusion drawn in impugned judgment was wrong would not be a valid ground to review judgment. It is next contended that provision of review is not applicable to the proceedings under Family Court Act. Learned counsel categorically stated that the proceedings of review are an ancillary proceedings in the main order or that the finality to the order as envisaged in terms of provisions of Subsection (4) of Section 115 CPC would override provisions of Order 47 Rule 1 & 7 CPC, apparently was not supportable in view of rule laid down by Hon'ble Supreme Court in case reported as PLD 1981 SC 94, wherein it is held that the court in undertaking the exercise of review have to confine itself to the limited enquiry, enjoy within the four corners of Order 47 Rule 1 CPC and not to embark upon opening of the case on merits and deciding it afresh. However, Mr. Iqbal candidly submitted that the court is competent to review its order to rectify ambiguity or any mistake apparent on its face or of record or if some material evidence has not been taken into consideration or has been totally ignored while passing the judgment. To support his above contention, learned counsel placed reliance on the cases reported as MUHAMMAD RAMZAN V/S LAHORE DEVELOPMENT AUTHORITY, LAHORE (2002 SCMR 1336), MST. MAQSOODAN BIBI V/S MST. BHANO (PLD 1963 Lahore 523), SH. MEHDI HASSAN V/S PROVINCE OF PUNJAB & 5 OTHERS (2007 SCMR 755), MST. ZAINUB KHATOON V/S MIAN GHULAM SHABBIR & ANOTHER (PLD 1965 SC 55), SAGHIR AHMED V/S MST. RUKHSANA TABASSUM & 2 OTHERS (1999 YLR 882), TANYA KNITWEAR (PVT) LTD. & OTHERS V/S FIRST WOMEN BANK LTD. (PLD 2008 Karachi 29), MST. LAL KHATOON & 8 OTHERS V/S MST. SAHATI & 2 OTHERS (PLD 2005 Karachi 327), MUHAMMAD HANIF V/S MALIK IJAZ HUSSAIN ADDITIOJNAL SETTLEMENT COMMISSIONER (1989 ALD 101(1) and MUHAMMAD ASIM TIWANA V/S SYED SHAUKAT HUSSAIN RIZVI & 6 OTHERS (1999 CLC 1177).
7. After considering the arguments and authorities cited by learned counsel for the parties, I reached at the irresistible conclusion that there is no cavil to the propositions that scope of review is very limited. The jurisdiction vested in the court for review of an order despite different from that of appeal and case cannot be reopened on the ground that according to estimation of learned counsel for the applicant another interpretation of law is possible as the review is not a regular remedy. The review cannot be granted on the ground that a party is not satisfied from the order/judgment or a different view of the matter is also possible or a different interpretation of law can be made. However, the court has the powers and is in fact obliged to review an order which suffers from patent error, floating on surface of the record and the court may correct itself if it is wrong but the error or wrong ought to be substantial and speaking. It is settled principle of law that as far as possible the courts have to meet the ends of justice and carryout purpose of all contemporary laws according to due appreciation of law and facts, the contentions and views of the parties are to be considered compassionately, more particularly, when welfare and betterment of a Ward is involved. However, review is not permissible on a ground that a party is not satisfied from the judgment/order or wants a different conclusion than the one reached by the court. Even otherwise, the mere incorrectness of a decision on a particular issue or a question falling for determination in case can never be a ground for review on the ground of such incorrectness which would amount to granting the court a jurisdiction to hear appeal against its own judgment. Crux of the aforementioned discussion is that the review of the order cannot be allowed merely on the ground that a party to it conceives himself to be dissatisfied with the decision made therein.
8. For the foregoing, the listed applications having no merits for consideration are dismissed with no order as to costs.
*Aamir/PS* J U D G E