Muhammad Ayyub Alam Khan vs Adj etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W.P. No. 4191 of 2021

Muhammad Ayyub Alam Khan. Vs. Addl. District Judge, Kot Addu, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 25.03.2021. Mr. Tariq Mehmood Dogar, Advocate for petitioner. Mr. Muhammad Aurangzaib Khan, A.A.G.

Through this constitutional petition, the petitioner has called in question orders dated 11.02.2021 and 11.03.2021 passed by both the courts below, whereby application filed by the petitioner for grant of permission to sell the property of his minor son namely Muhammad Umer Ayyub (‘minor’), before the Civil Judge, 1st Class, Kot Addu, District Muzaffargarh, has been dismissed on the ground that the petitioner was appointed as guardian of the minor by the Family Court at Multan, therefore, the petition seeking afore-said relief was not maintainable in courts at Tehsil Kot Addu.

2.Learned counsel for the petitioner states that the petitioner being father and natural guardian of the minor has been duly appointed as guardian of his person and property, therefore, he is entitled to seek permission to sell the minor’s property and the learned courts below were not justified to dismiss

W.P.No. 4191 of 2021

the said application. Relies upon Section 9 (2) of the Guardian and Wards Act, 1890 (‘Act’) to state that if an application is with respect to the guardianship of property of the minor it may be filed in the court within jurisdiction of which the property is situated and place of residence of the minor is not relevant for the said purpose.

3.Heard.

4.In order to appreciate the contention of the petitioner that permission for selling the property of the minor situated in Tehsil Kot Addu, District Muzaffargarh, is to be obtained from courts situated in Kot Addu and not from Family Court at Multan, from which certificate for appointment of guardianship of person and property of the minor was obtained especially when minor ordinarily resides in Multan, reference may be made to Section 9 of the Act, which is reproduced below:- “9. Court having jurisdiction to entertain application. (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

(2)If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides, or to a District Court having jurisdiction in a place where he has property.

(3)If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the

W.P.No. 4191 of 2021

application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.”

The perusal of the afore-referred Section shows that cases in which guardianship of person of minor only is required to be obtained then in terms of Section 9 subsection (1), the said application is to be filed in the District Court within jurisdiction of which the minor ordinarily resides but where the guardianship of ‘property’ of the minor is to be obtained then in terms of Section 9 subsection (2) in District Court of the places where the minor ordinarily resides and where the property is situated have the concurrent jurisdiction to entertain the same. Subsection (3) of Section 9 provides that in case the application for appointment of guardian of property of the minor is filed in the District Court of a place other than the place where the minor ordinarily resides, the said court can return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction. It is observed that although an application for guardianship in relation to the property of the minor can be moved in the court where the property is situated but in the present case the petitioner obtained guardianship certificate in

W.P.No. 4191 of 2021

respect of person and property of minor from the Family Court at Multan, where the minor ordinarily resided and thereafter he seeks permission for disposal of the property of the minor, which permission is required to be obtained from the court in terms of Section 29 of the Act, which for the purpose of convenience is reproduced below:- “29. Limitation of powers of guardian of property appointed or declared by the Court. Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not without the previous permission of the Court:

(a)mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or

(b)lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.”

The perusal of Section 29 of the Act shows that where a person has been appointed or declared by the court to be the guardian of a ward, he shall not without the previous permission of the court transfer the property of the minor through modes mentioned in the said Section which shows that the previous permission of the court that appointed him as the guardian is required for disposing/transferring of the property of the minor, which permission may be granted or refused in terms of Section 31 of the Act reproduced below:-

W.P.No. 4191 of 2021

“31. Practice with respect to permitting transfers under Section 29.

(1)Permission to the guardian to do any of the acts mentioned in Section 29 shall not be granted by the Court except in case of necessity or for an evident advantage to the ward.

(2)The order granting the permission shall recite the necessity or advantage, as the case may be, describe the property with respect to which the act permitted is to be done, and specify such conditions, if any, as the Court may see fit to attach to the permission; and it shall be recorded, dated and signed by the Judge of the Court, with his own hand, or, when from any cause he is prevented from recording the order with his own hand, shall be taken down in writing from his dictation and be dated and signed by him.

(3)The Court may in its discretion attach to the permission the following among other conditions, namely: -

(a)that a sale shall not be completed without the sanction of the Court;

(b)that a sale shall be made to the highest bidder by public auction before the Court or some person specially appointed by the Court for that purpose, at a time and place to be specified by the Court, after such proclamation of the intended sale as the Court subject to any rules made under this Act by the High Court, directs;

(c)that a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and covenants as the Court directs;

(d)that the whole or any part of the proceeds of the act permitted shall be paid into the Court by the guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be otherwise disposed of as the Court directs.

(4)Before granting permission to a guardian to do an act mentioned in Section 29, the Court may cause notice of the application for the permission to be given to any relative or friend of the ward who should, in its opinion, receive notice thereof, and shall bear and record the statement of any person who appears in opposition to the application.”

W.P.No. 4191 of 2021

The contention of the learned counsel for the petitioner that the petitioner in terms of subsection

(2)of Section 9 of the Act was authorized to file application for seeking permission to sell the property from the District Court within jurisdiction of which the property is situated would have carried some weight where petitioner was only seeking the relief of being appointed as guardian of property of the minor, which application in addition to the District Court within jurisdiction of which the minor resided, could have also been filed at the place where property is situated in terms of the afore- referred Section and in such situation the petitioner would have the option of choice of forum for filing guardianship on the basis of doctrine of election, which not only is applicable to the available remedies but also to the available forums, if they have concurrent jurisdiction to try a matter subject to exception of mala fide choice of forum whereas in the present case the petitioner has already been appointed as guardian of person and property of the minor from Guardian Court at Multan, hence, the provision of subsection (2) of Section 9 of the Act for filing application under Section 29 of the Act for permission for sale of property is not available to

W.P.No. 4191 of 2021

the petitioner at this stage. This position of law is fortified by the definition of court provided in Section 4 (5) of the Act, which is reproduced below:-

“4. Definitions. In this Act, unless there is something repugnant in the subject or context:-

(5)“the Court” means:-

(a)the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or

(b)where a guardian has been appointed or declared in pursuance of any such application:-

(i)the Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or

(ii)in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or

(c)in respect of any proceeding transferred under Section 4A, the Court of the officer to whom such proceeding has been transferred.” The perusal of Section 4 (5)(b) of the Act makes it clear that in cases where a guardian has been appointed or declared in pursuance of any such application for appointment of guardian of the minor, the court that can entertain further applications is the Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or

W.P.No. 4191 of 2021

declared the guardian, which is subject to the only exception that in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides shall have the jurisdiction. Hence, in view of the afore-referred definition of the ‘Court’, in the case of the petitioner, who has been appointed as guardian of person and property of the minor by the District Court at Multan, only the Court at Multan retains the jurisdiction relating to matters of property of the minor to the exclusion of all other courts.

5.Even otherwise, where guardianship of person and property together are sought, then as per Section 9 subsection (1) of the Act, the place where the minor ordinarily resides would be of more significant value for determining the jurisdiction of the court than Section 9 subsection (2) of the Act, which relates to guardianship of property and provides for concurrent jurisdiction to the courts of residence and situation of property of the minor.

Hence, courts in Multan, where minor resides, in view of the issuance of guardianship certificate of minor, retained jurisdiction to entertain the dispute.

Here it is pertinent to mention that application under

W.P.No. 4191 of 2021

Section 29 of the Act is not an application independent of the previous proceedings in the matter providing opportunity to the petitioner to approach any court for invoking its jurisdiction but the said application is to be filed in continuation of previous proceedings, hence, the same is required to be filed in the same court.

6.There is another aspect of the matter that even if jurisdiction of courts at Kot Addu was concurrently available to the petitioner alongwith the jurisdiction of the courts at Multan, the said jurisdiction was no longer available to the petitioner as he had earlier opted to invoke the jurisdiction of courts at Multan and when a party opts to choose a forum it cannot be allowed to switch over to another forum qua the same grievance during the proceedings before the former. Reliance in this regard is placed on PLD 2015 Lahore 687 (Mian ABDUL QUDDOUS versus Mst. SURRYA MIR AND 3 others), wherein it is provided as under:- “It is well established by now that when a party opts to choose a forum it cannot be allowed to switch over to another forum qua the same grievances during pendency of proceedings before the former. Reliance in this regard is placed on the cases reported as Shaukat Khan v. Assistant Political Agent, Landi Kotal, Khyber Agency and others (PLD 2002 SC 526), Messrs Chakwal Textile Mills Limited, Rawalpindi Road Chakwal and another v. Director Social Security, Rawalpindi and 2 others (2012 PLC 270) and

W.P.No. 4191 of 2021

World Trade Corporation v. C.B.R and others

(1999 PTD 2341).”

7.The petitioner is also not entitled to file application in District Court at Kot Addu as he had earlier surrendered to the jurisdiction of courts at Multan for seeking appointment as guardian of the minor and once he has acquiesced to the said jurisdiction he could not approbate and reprobate at the same time to avoid jurisdiction of courts at Multan. Reliance in this behalf is placed on judgment reported as PLD 2018 Sindh 377 (Scherazade Jamali versus Hashim Gillani and others). In view of the principles laid down in the afore-referred judgments, the petitioner cannot at this stage seek remedy from courts at Kot Addu especially when the permission of sale is required to be obtained from the same court that had appointed him as guardian of the person and property of the minor, which court retained the jurisdiction over the property of the minor despite passing of final order for appointment of guardian, which was imperative as the court was to look after the welfare of the minor, who was subject to its jurisdiction; subject to the exception that for any reason the courts at District Multan cannot hear the said matter, inter alia, in case a superior court transfers the same

W.P.No. 4191 of 2021

outside the District Multan by exercising powers of transfer provided under Section 4A of the Act.

8.In view of what has been discussed above, the contention of the petitioner that he can file an application in the District Court at Kot Addu, where property of minor is situated to the exclusion of place where the minor ordinarily resides is without any justification and cannot be allowed as he himself opted to file the application for appointment of guardian of minor in District Multan, hence, the court at Multan would retain the jurisdiction to pass further orders in the matter to the exclusion of the District Court at Kot Addu, District Muzaffargarh, therefore, the courts below were justified to direct the petitioner to approach the afore-referred court, which finding is based on proper appreciation of record and the same does not suffer from any illegality or jurisdictional defect, hence, does not warrant any interference by the this Court.

9.For what has been discussed above, this constitutional petition is dismissed in limine.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan

Approved for reporting.

Judge