2010 PLP 475 (CLC)

ABDUL AZIZ KUNDI, J.

Osman Khan, plaintiff/petitioner through his plaint dated 14-3-2008 sued Aisha Naz Rajput, respondent No:1 before Family Court, Peshawar for grant of decree for jactitation of marriage and ultimately succeeded in getting an ex parte decree on 28-4-2008, as the defendant/respondent did not respond to the process of Court.

2. Later on the respondent/defendant filed an application purporting to be under section 12(2), C.P.C. praying for setting aside ex parte decree passed against her on 28-4-2008. She in her said application complained of fraud, misrepresentation by plaintiff/petitioner and lack of knowledge on her part due to her wrong address intentionally given by plaintiff/petitioner.

3. Through his 'application dated 13-6-2009 moved by plaintiff/petitioner under section 17(1), Family Courts Act', 1964 the maintainability and competency of the said application was questioned due to non-applicability of C.P.C. except its sections 10 and

11. The objection so raised by plaintiff/petitioner was repelled by Senior Civil Judge, Peshawar vide his order dated 10-9-2009. It was held by the said Court that since fraud and misrepresentation on the part of the plaintiff has been alleged while obtaining the ex parte decree dated 28-4-2008, therefore, the petition is maintainable and accordingly the application moved by plaintiff/petitioner under section 17 subsection (1), Family Courts Act, 1964 was dismissed and plaintiff/petitioner was directed to file reply to the application of defendant/respondent positively on the next date.

4. Without caring for the said order being amenable to appeal or not an appeal was filed by the plaintiff/petitioner before the District Judge,' Peshawar where the same was registered as Case No.10/FCA of 2009 and once again the learned Additional District Judge-X, Peshawar without caring for the order impugned before it to be appealable or not proceeded to dispose of the same on merits and vide judgment dated 31-10-2009 held that no doubt family laws as enacted are special proceedings but C.P.C. being a general law and, where procedure in special law is not expressly and specifically mentioned, then the provision of general law to prevail. Further it was held that the trial Court has rightly held that since fraud and misrepresentation has been alleged, therefore, the provision of C.P.C. were very much applicable. Accordingly, the appeal was held to have been filed with a view to delay the matter and consequently dismissed with costs. Additional costs of Rs.1,000 were also imposed upon the plaintiff/petitioner.

5. Through the instant writ petition, the said judgments and orders have been assailed.

6. It appears that both the Courts below were not given proper assistance, otherwise the impugned orders as they have been passed would not have been passed. West Pakistan Family Courts Rules, 1965 provides complete procedure for disposal and trial of family suits by the trial Courts as well as by the appellate Courts. Rule 13 ibid deals with setting aside of ex parte decrees by the said Court which reads as under:

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13. Ex parte decree or proceedings may, for sufficient cause shown be set aside by the Court, on application made to it within (30) days of the passing of the decree or decision." Had Rule been taken care of both by the learned counsel and the Courts below, particularly the trial Court, the orders impugned herein would not have been coached in such words, as are presently. Similarly, under section 14 subsection 3 of the West Pakistan Family Courts Act, 1964, interim order have been held neither to be appealable nor reviseable. This provision of law was added to Family Courts Act, 1964 through Ordinance No.LV of 2002 which reads as under:

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14. Appeal. (1) . (2) .. (3) No appeal or revision shall lie against any interim order passed by Family Court." Undisputedly, the order dated 29-9-2009 passed by Senior Civil Judge, Peshawar was in his capacity as a Family Court and interlocutory in its nature, thus neither appealable nor revisable.

7. We have heard the learned counsel for the plaintiff/petitioner but have not been persuaded to interfere in the impugned orders, which though are based on wrong approach to the relevant law but having done substantial justice are not open to interference through this writ petition. When decision on merits is the most cherished goal of law and Courts administering justice are not slaves of technicalities, then mere mention of a wrong provision of law should not be a hurdle in doing justice between the parties and particularly when one is otherwise found entitled to it. Otherwise, too, by now it is well settled that jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan should not be exercised in matters arising out of interlocutory orders and fragmentary decisions should be avoided, which otherwise delays the disposal of the main case. This petition thus stands dismissed in limine.

9. Copy of this judgment be sent to both the Courts below for their information. H.B.T./28/P Petition dismissed.