-Constitutional petition---Guardianship petition--- Territorial jurisdiction of court---Scope---Plaintiff filed an application for the custody of minor---Defendant in reply.........

 2010 YLR 196

Ss. 9 & 25---Civil Procedure Code (V of 1908), S.151 & O. VII, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Guardianship petition--- Territorial jurisdiction of court---Scope---Plaintiff filed an application for the custody of minor---Defendant in reply filed an application under O. VII, R.10 read with S.151, C.P.C. by challenging the Territorial jurisdiction of the Guardian Court at "L "---Guardian Judge accepted application of the defendant and returned the petition for its presentation before the competent forum---Plaintiff filed appeal which was allowed and the case was remanded to the Guardian Judge with direction to decide the issue of Territorial jurisdiction along with other issues after recording evidence---Contention of the plaintiff was that since desertion the defendant had not been residing permanently at any place, therefore, the last place of her residence i.e. "L" would be deemed as ordinary residence of the minor---Validity---Stance of the plaintiff was against the record---Plaintiff had admitted in his suit for restitution of conjugal rights and in the constitutional petition that since 19-12-2007, defendant had been residing at "R "---Plaintiff could not take any stance over and above the pleadings---Appellate Court had erred in law while remanding the case with a direction to the defendant to prove the admitted fact with evidence---Impugned remanding order was illegal and without lawful authority---High Court accepted constitutional petition with observation that only the Guardian Judge at "R" possessed Territorial jurisdiction in terms of S.9 of Guardians and Wards Act, 1890 to decide matter of custody of the minor.