ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN-
JUDICIAL DEPARTMENT
W.P. No.11748-2013
Mehmood ur Rehman

Versus

Addl. District Judge etc.

S. No. of Date of order/ Order with signature of Judge, and that of

order/ Proceeding parties or counsel, where necessary
Proceeding

06.02.2014 Nemo for the petitioner.

Mr. Rahat Masood Tippu, Advocate for respondent
No.3.

Mehmood ur Rehman, the petitioner has filed

this petition to challenge the legality, validity and

correctness of the judgment and decree dated

28.2.2012 passed by learned Judge Family Court,

Vehari and the orders dated 24.1.2012 and

26.6.2013 passed by him as well as the orders

dated 17.9.2013 and 27.9.2013 passed by an Addl.

District Judge, Vehari.

2. The facts, in brief, are that Mst. Nazmeen,

respondent No.3 instituted a petition for custody of

minors, namely, Hamza and Hamad-ul-Rehman.

For one reason or another, the petitioner was

proceeded ex parte and ex-parte judgment and

decree was passed by learned Judge Family

Court/guardian Judge, Vehari vide judgment and

W.P.No.11748-2013 2

decree dated 28.2.2012. Thereafter, the petitioner

herein moved an application seeking to set aside the

ex parte proceedings initiated against him vide order

dated 24.1.2012, followed by the ex part judgment

and decree dated 28.2.2012. However, his

application was disallowed by learned Judge Family

Court vide order dated 26.6.2013. As a result, the

petitioner filed a petition before learned District

Judge, Vehari to assail the validity of the ex parte

order dated 24.1.2012, ex parte judgment and

decree dated 28.2.2012 and the order dated

26.6.2013 by which the learned Judge Family Court

had declined to set aside the ex parte proceedings as

well as the ex parte judgment and decree passed

against the petitioner.

3. Since the petitioner herein had not filed an

appeal in terms of Section 14 of the West Pakistan

Family Courts Act, 1964, rather had filed a revision

petition to call into question the validity of the

orders, judgment and decree passed by learned

Judge Family Court, Vahari, an Addl. District

Judge, Vehari dismissed the same vide order dated

17.9.2013, holding the same to be incompetent.

Thereafter, the petitioner herein filed an appeal,

thereby retracing his steps. Along with the appeal,

W.P.No.11748-2013 3

an application under section 5 of the Limitation

Act, 1908 was also moved by him. Nevertheless, his

appeal was also dismissed vide order dated

27.9.2013, holding the same to be barred by time.

Hence this writ petition.

4. I have heard the learned counsel for

respondent No.3 and also gone through the record

with his assistance.

5. This is undeniable that the petitioner did not

file an appeal in terms of Section 14 of the West

Pakistan Family Courts Act, 1964 and due to ill

advice filed a revision petition to assail the validity

of the orders as well as the ex parte judgment and

decree dated 28.2.2012 passed by learned Judge

Family Court, Vehari. But it could not be

disregarded that the petitioner’s application seeking

to set aside the ex parte proceedings and ex parte

judgment and decree dated 28.2.2012 was

dismissed by learned Judge Family Court/Guardian

Judge, Vehari, vide order dated 26.6.2013, while

the revision petition was filed on 17.7.2013,

meaning thereby that it was filed within three weeks

of the final order passed against the petitioner.

6. Although Section 14 of the West Pakistan

Family Courts Act, 1964 is completely silent on the

W.P.No.11748-2013 4

question of limitation within which an appeal is to

be filed, yet going by rule 22 of the West Pakistan

Family Court Rules, 1965 the appeal could have

been filed within a month. This being so, instead of

taking a hyper-technical view and dismissing the

revision petition filed by the petitioner vide order

dated 17.9.2013, learned Addl. District Judge,

Vehari was empowered to convert the revision

petition into an appeal. It has repeatedly been held

by the Superior Courts that an appeal may be

converted into revision petition and vice versa. In

this respect, reference may well be made to the

judgment reported as “Muhammad Ramzan v.

Fatima and 3 others”(PLD 2004 Lahore 17). In

this judgment, it was observed as under:-

“Invocation of remedy of a revision

petition or an appeal is regulated under the
prescribed provisions of law and each has its
well defined legal parameters. Yet in certain
cases their scope can overlap or can be
genuinely mistaken or can even otherwise be
confused. The object of both the remedies,
however, is to bestow upon the litigant another
tier to seek rectification of the
orders/judgments/decrees assailed therein.
Both the remedies are vehicles to access
justice and to correct injustice or wrong
occurring in the adjudication of a subordinate
W.P.No.11748-2013 5

Court. The object of law providing various

remedies is to safeguard a legal right and to
cure damage done to such right. Denial of
anyone remedy will be denial of the right
sought to be enforced. The Court should,
therefore, allow conversion of revision without
a demur in absence of an insurmountable legal
impediment. If a Court under law is the seat of
revisional as well as appellate jurisdiction,
denial of conversion by such Court in absence
of compelling reasons would amount to stifling
the remedy otherwise guaranteed to a person
under law.
Conversion should not be taken to be
bounty of the Court. In my opinion, it is the
vested right of a litigant to avail of the remedy
to which he is entitled either through direct
institution or through conversion if he had
invoked the wrong remedy or the wrong law.”

7. Had the learned appellate court not committed

material irregularity and had this order not suffered

from jurisdictional defect, the petitioner was not

required to file an appeal, following the dismissal of

his revision petition. It appears that the petitioner

was made to go round in circles on account of

abdication of jurisdiction on the part of learned

appellate Court. It is axiomatic that an act of the

Court should not prejudice the rights of anybody.

 W.P.No.11748-2013 6

8. For what has been stated above, the impugned

orders dated 17.9.2013 and 27.9.2013 passed by an

Addl. District Judge, Vehari are not sustainable in

the eyes of law. Both of them suffer from

jurisdictional defects, and as such are amenable to

the jurisdiction of this Court under Article 199 of

the Constitution of the Islamic Republic of Pakistan,

1973. As a result, the revision petition filed by the

petitioner shall be converted into an appeal and

deemed to be pending before the Additional District

Judge, Vehari, who shall decide it afresh in

accordance with law, after issuing fresh notices to

the parties.

Petition Allowed.

(MAHMOOD AHMED BHATTI)

JUDGE
Approved for reporting

JUDGE
Rana Zahid Bashir*
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