2007 C L C 1109

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ZAMAN----Petitioner

Versus

FAUZIA BIBI and another----Respondents

Writ Petition No.15830 of 2003, heard on 25th January, 2007.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5---Provisional Constitution Order (I of 1981), Art.9---Family Court, authority to

pass punitive orders---Procedure---Scope---Family Court although a forum of limited
jurisdiction yet it had to regulate its own procedure as West Pakistan Family Courts Act,
1964 does not make provision for every conceivable eventuality and unforeseen
circumstances---Party defaulting persistently and acting contumaciously, Family Court
not denuded of authority to pass punitive action against such party---West Pakistan
Family Courts Act, 1964 enacted with object of expeditious disposal of disputes relating
to family affairs---Strict applicability of Civil Procedure Code, 1908 to the proceedings
before Family Court can be urged but adoption of general principles of procedure by
Presiding Officer of such Court being a Rule of law, cannot be prohibited to advance the
due administration of justice.

Bashir Ahmed v. Mst. Zubaida and another 1990 ALD 180; Maqsood Ahmad v. Judge,
Family Court, Burewala and 5 others 2001 CLC 567; Muhammad Ashraf v. Nasreen
Begum through legal heirs and 3 others PLD 1989 Lah. 69; Khalilur Rehman Bhutta v.
Razia Naz and another 1984 CLC 890 and Shahzada Jawaid v. Mst. Sadia Rauf and
another 2000 MLD 1301 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Civil Procedure Code (V of 1908), O.VIII, Rr.1 & 10---Constitution
of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles
and maintenance allowance---Striking off defence for non-filing of written statement---
Validity---Family Court having opted to follow the procedure prescribed for trial of civil
suit committed no error of law but this procedure as well limited period for filing of
written statement to one month as per proviso to Rule 1 of O.VIII, C.P.C.---Impugned
order revealed that Judge Family Court exhibited unnecessary haste at the cost of
dispensation of justice by passing the order within a span of twenty days only---Family
Court should have given defendant a fair opportunity to defend suit, another opportunity
for filing the written statement would not only have served the ends of justice but would
have also completed the period of one month, as given in the Procedure---Impugned
order being tainted with patent illegalities was set aside by High Court directing Family
Court to allow only one single final opportunity to defendant of filing his written
statement with costs.

Ch. Irshad Ullah Chattha for Petitioner.

Respondent: Ex parte.

Date of hearing: 25th January, 2007.

JUDGMENT

MUHAMMAD MUZAMMAL KHAN, J.---Instant constitutional petition assailed

order, dated 7-10-2003 passed by the learned Judge, Family Court, Sheikhupura, to be
declared illegal, void and of no legal consequence, whereby on account of non-filing of

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written statement by the petitioner his this right was closed and case was taken up for ex
parte proof by respondent No.1.

2. Precisely, relevant facts are that respondent No.1 was married with the petitioner but
relations between the spouses did not remain cordial and ultimately resulted in
separation. Respondent No.1 filed a suit for recovery of her dowry articles and
maintenance allowance. Petitioner being defendant in the suit, in response to notice by
the learned Judge Family Court, appeared where he was required to file written
statement. On 7-10-2003 petitioner in spite of availing repeated opportunities, failed to
file the written statement which led to punitive action through impugned order. Petitioner
being aggrieved of closure of his right to file written statement, filed instant constitutional
petition, which was admitted to regular hearing and after completion of record has now
been placed for final hearing. Respondent No.1 avoided service of notice issued by the
office of this Court, whereupon citation in daily Urdu newspaper "Nawa-e-Waqt" was
published, carrying notice for appearance of respondent No. 1 but she did not appear.
Second citation in daily Urdu newspaper "Pakistan" was ordered to be published for her
appearance and on her failure, she was proceeded against ex parte, vide order, dated 28-6-
2006.

3. I have heard the learned counsel for the petitioner and have examined the record,
appended herewith. Record revealed that on 17-9-2003 petitioner appeared in person
before the learned Judge Family Court, whereupon case was adjourned to 18-9-2003 for
filing of written statement, which was not filed and thereafter petitioner was granted a
final opportunity for filing the written statement on 27-9-2003. On the next date of
hearing i.e. 3-10-2003 some counsel appeared on behalf of the petitioner and filed his
power of attorney, whereupon case was adjourned to 7-10-2003 for filing of written
statement. This is the date on which punitive action of striking of right to file written
statement was ordered. All this exercise was done within a period of twenty days. No
doubt that suit filed by respondent No.1 was a family suit and required expeditious
disposal but petitioner/defendant should have been given fair opportunity of defending
the same by filing his written statement, which was not provided in the case in hand.

4. Learned counsel for the petitioner, relied on the judgments in the case of Bashir Ahmed
v. Mst. Zubaida and another 1990 ALD 180, Maqsood Ahmed v. Judge, Family Court,
Burewala and 5 others 2001 CLC 567 and Muhammad Ashraf v. Nasreen Begum through
legal heirs and 3 others PLD 1989 Lah. 69 to contend that in absence of any provision for
taking punitive action of striking of right to file written statement in the Family Courts
Act, 1964 or Rules framed thereunder, the impugned order is not sustainable at law,
especially when section 17 of the A c t (ibid) expressly excluded applicability of the
Civil Procedure Code, 1908, appeared to have some worth but a Judge Family Court
while trying any suit mentioned in schedule of Family Courts Act, 1964 has to adopt
procedure of his choice as this enactment is not exhaustive and does not make provision
for every conceivable eventuality and unforeseen circumstances/situations. Judgments in
support of this proposition, are in the cases of Khalilur Rehman Bhutta v. Razia Naz and
another 1984 CLC 890 and Shahzada Jawaid v. Mst. Sadia Rauf and another 2000 MLD
1301.

5. Now if we follow the view taken in the judgments relied by the learned counsel for the
petitioner, the result would be that learned Family Judges shall be denuded of jurisdiction
to take any punitive action against the defaulting defendants, in spite there
prolonged/consistent defaults and the suit will not proceed till infinity but this
interpretation being opposed to the purposes of the Family Courts Act, 1964, cannot be
contributed. Preamble of the Act of 1964 reads as under:

"Whereas it is expedient to make provision for the establishment of Family Courts

for the expeditious settlement and disposal of disputes relating to marriage and
family affairs and for the matters connected therewith;"

Now keeping in mind the Preamble of the Act, if the judgments relied by the learned
counsel for the petitioners are examined and followed, the result would be contrary to
purposes of the legislation but this interpretation cannot be given effect. Strict
applicability of Civil Procedure Code, 1908 to the proceedings before a Family Court can

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be urged but adoption of general, principles of procedure by the Presiding Officer of such
Court being a Rule of law, cannot be prohibited to advance the due administration of
justice.

6. In the case in hand, learned Judge Family Court having opted to follow the Procedure
prescribed for trial of civil suits, committed no error of law but this Procedure as well
limited period for, filing of written statement to one month as per proviso to Rule 1 of
Order VIII. Since respondent No.2 exhibited unnecessary haste at the cost of dispensation
of justice by passing impugned order within a span of twenty days only, the same
deserved to be reversed being tainted with patent illegalities. It goes without remarking
that another opportunity for filing the written statement would not only have served the
ends of justice but would have also completed the period of one month, as noted above,
but this course was not adopted.

7. For the reasons noted above, instant petition is bound to succeed and is accordingly
accepted and impugned order dated 7-10-2003 is declared to be void and of no legal
consequence with the result that petitioner is granted one single final opportunity of filing
his written statement on a date to be fixed by the learned Judge Family Court (respondent
No.2) subject to payment of costs of Rs.5,000 to respondent No.1 who unnecessarily
suffered on account of lapse of the petitioner for a period of four years. In case of failure
of the petitioner to file written statement on the date so fixed by the trial Court, order,
dated 7-10-2003 shall stand revived. There will be no order as to costs as far as instant
proceedings are concerned.

F.B./M-122/L Petition accepted.

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