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-- Art. 201--Contrary view of two High Court on one point-High Court's decisions binding on its subordinate Courts which should give preference to same to decisions of other High Courts-Such deci sion, held, can only yield to decision of Supreme Court.-[Pre emption].

Oil and Gas Development Corporation v. Shujauddin Ahmad P L D 1970 Kar. 332 rel.'

---Ss.25 & 47, proviso-West Pakistan Family Courts Act (XXXV of 1964), S. 14-Constitution of Pakistan (1973), Art. 199-Appeal against order passed under S. 25, Guardians and Wards Art. 1890 . lies to District Judge- under S. 14, West Pakistan Family Courts Act, 1964.

Mst. Zaibun Nisa v. Muhammad Muzammil P L D 1972 Kar. 401 rel.

Manzoor Hussain v. District Judge, Multan and another P L D 1977 Lab. 911 ; Muhammad Ismail v. Mst. Zubeda Khatoon P L D 1973 Kar. 503 ; Sakhawat Ali v. Mst. Shut Khelay P L D 1981 S C 454 ; Muhammad Ismail v. Fazal Ahmad P L D 1969 Lab. 834 ; Mst. Parveen v. Khawaja Muhammad Asghar P L D 1975 Lab. 334 and Juma Khan v. Mst. Gul Ferosha P L D 1972 Pesh. 1 ref.

M. M. Mahmudi for Petitioner.

Date of hearing : 13th April, 1982.

This petition filed under Article 199 of the Constitution of Pakistan is directed against the judgment dated 31st July, 1980 passed by the learned II A. D. J. (Mr. Nazir Ahmad Akhund) at Hyderabad in Guardianship Appeal No. 281 /79.

1. The brief facts of the case are that the petitioner filed an application under section 25 of the Guardian and Wards Act in the Court of District Judge, Hyderabad for the custody of minors Imtiaz Javaid, Baby Gudo and Baby Sakina born out of the wedlock between the petitioner and the respondent No. 2. The application was transferred to the Court of It Senior Civil Judge/Family Judge, Hyderabad for trial and was registered as Guardianship Application No. 45/78. Disputes having arisen between the said parties the respondent No. 2/mother started living separately from the petitioner. On the allegations made in the above mentioned application, the petitioner claimed the custody of the minors on the plea that in the interest of the welfare of the minors the custody of the said minors be given to him. The said application was contested. During the trial issues were framed and after hearing the parties ultimately by order passed on 27th November, 1979 the same was dismissed by the learned Family Court.

2. Against the abovementioned order the petitioner filed on appeal being Appeal No. 281/79 under section 14 of the West Pakistan Family Courts Act of 1964 in the Court of the District Judge at Hyderabad. The case was transferred to the Court of I1 Additional District Judge, Hyderabad who after hearing the parties by his judgment passed on 31^st July, 1980 dismissed the same on the ground that though the High Court of Sind in the case of Mst. Zaibun Nisa v. Muhammad Mozammil (P L D 1972 Kar. 401). bad held that the appeal against an order passed under. section 25 of the A Guardians and Wards Act would lie to the District Court under section 14 of the West Pakistan Family Courts Act, 1964 but in subsequent case of Manzoor Hussain v. District Judge, Multan and another (P L D 1977 Lah. 911) the learned Lahore High Court held that such an appeal would lie to the High Court as provided by section 47 of the Guardians and Wards Act.

3. The above judgment of the learned 11 Additional District Judge has now been challenged in this petition filed under Art. 199 of the Cons. titution of Pakistan.

4. At the very outset serious note should be taken of the fact that the learned lower appellate Court instead of following the law laid down by the High Court to which the said Court is subordinate ,preferred the judgment of another learned High . Court. Without meaning least dis respect and further emphasising that the judgment of other High Courts of the country are entitled to all respect it is yet to be borne in mind that the decisions of this High Court are binding upon the Courts subordinate to it, and that the subordinate Courts must give preference to the same to decisions of any other High Court on the points directly in issue, and that such decisions of the High Court can only yield to the decision of the Supreme Court of Pakistan. In this connection contention is invited to the case of Oil and Gas Development Corporation v. Shujauddin Ahmad (P L D 1970 Kar. 332), where a learned D. B. of this Court observed as follows :-

"There is also ample authority for the proposition that if a subordi nate Court fails to notice or ignores or refuses to follow a decision of the High Court to which it is subordinate, it acts illegally or with material irregularity within the meaning of section 115, Civil Procedure Code."

5. This brings me to the view taken by the Full Bench of this Court in the case of Mst. Zaibun Nisa v. Muhammad Muzammil, wherein principle has been laid down that :-

"merely because a Family Court is deemed to be a District Court an order passed by it cannot be treated as an order of the District Court nor does it become appealable to this High Court."

The above judgment was followed by the judgment given in the case of Muhammad Ismail v. Mst. Zubeda Khatoon (P L D 1973 Kar. 503).

The view taken by this Court in the above cited cases, has been appro ved by the Honourable Supreme Court in the case of Sakhawat Ali v. Mst. Shui Khelay (P L D 1981 S C 454), wherein the other views taken by the learned Judges of the Lahore High Court in the case of Muhammad Ismail v. Fazal Ahmad (P L D 1969 Lah. 834), Mst. Parveen v. Khawaja Muhammad Asghar (P L D 1975 Lab: 334), Manzoor Hussain v. District Judge, Multan and the case of Juma Khan v. Mst. Gul Ferosha (P L D 1972 Pesh. 1) were not approved.

6. The Honourable Supreme Court in the above case of Sakhawat Ali after citing section 14 of the West Pakistan Family -Courts Act, 1964 and repelling the contention that the order of the Family Court could have been challenged by filing appeal under section 47 of the Guardians and'

Wards Act held :-

"Now, there can be no question of the valuation of the dispute in guardianship matters, but the District Judges are empowered, under the rules framed under the said Act, to transfer guardianship cases to Civil Judges. And, when a Civil Judge acts as the Guardian Judge, clause (b) of subsection (1) of section 14 prescribes that an appeal against his order lies to the District Court. This is in accor dance with the law of generations and therefore, the abstract posi tion that there cannot be an appeal within a Court has no relevance to our jurisprudence."

The Honourable Supreme Court after referring to the opinions of the learned Judges of the various High Courts held :-

"We hold that the correct law was laid down by the Sind and Baluchistan High Court in Mst. Zaibun Nisa v. Muhammad Muzammil and Muhammad Ismail v. Mst. Zubeda Khatoon."

7. In the end I would like to refer to the following proviso added to section 47 of the Guardian and Wards Act (which enumerates] defines the orders of Guardian Courts which are appealable by Ordinance No. XI of 1980 promulgated on 26th March, 1980 whereby to the above-mentioned section 47 the following proviso was added :-

"Provided that where the order from which an appeal is preferred is passed by an officer subordinate to a District Court, the appeal shall lie to the District Court."

Thus the matter under consideration stands finally concluded not only by Ordinance No. XI of 1980 but also the authoritative pronounce ment of the law by the Honourable Supreme Court in the case of Sakhawat Ali.

8. For the reasons stated above the judgment passed on 13th July, 1980 by 11 Additional District Judge (Mr. Nazir Ahmad Akbund) at Hyderabad in Guardianship Appeal No. 281/79 is quashed as having been passed without any lawful authority and of no legal effect.

Consequent to the above order the abovementioned appeal is ordered to be remanded to the learned District Judge, Hyderabad with the direction that he shall dispose of the same either himself or he may transfer it to the Court of competent jurisdiction for disposal according to law.

As the respondents have not contested the matter there shall be no order as to costs.

K.M.A. Constitutional petition accepted.

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