2008 PLP 607 (CLC)

KHURSHID ANWAR BHINDER, J.

The grievance voiced by the petitioner in this constitutional petition is that the order, dated 26-1-2008, passed by respondent No.1 is illegal, based on surmises and conjectures and is the result of misreading and non-reading of true facts of the case, is liable to be set aside and, as such, the plaint in the suit filed by respondent No.2 may be returned to her with the direction to file the same before proper forum.

2. Briefly the facts of the case are that petitioner and respondent No.2 were married on 24-6-2007 according to Shaarah-e-Muhammadi and at the time of Nikah in Saudi Arabia (Medina Munawwara) while performing Umra, Rs.5,000 were fixed as dower amount which was paid to respondent No.2 then and there. It was settled between the parties that Nikahnama will be registered properly after their arrival in Pakistan and it was also settled that Rukhsti will take place on 4-1-2008. At the time of Nikah of petitioner and respondent No.2, petitioner's sister was also married with first cousin of respondent No.2 in Saudi Arabia. When the parties carne back to Pakistan, the petitioner's family approached the parents of respondent No.2 for registration of Nikahnama and Rukhsti of respondent No.2 but the parents of respondent No.2 demanded that Rukhsti ceremony will be performed subject to the gifting of a house and shop to respondent No.2. On the refusal of the petitioner, respondent No.2 filed a suit for dissolution of marriage and recovery of gift articles including golden ornaments in the Court of Judge, Family Court, Wazirabad. In response to the notice, the petitioner entered appearance before the learned Judge, Family Court, Wazirabad and filed two applications, one for return of plaint for want of territorial jurisdiction and the other for dismissal of the suit as defective one. Both these applications were dismissed by the learned trial Court vide order, dated 26-1-2008, hence the present constitutional petition.

3. Notwithstanding the contentions raised by the learned counsel, to my mind, the present petition is incompetent and not maintainable on legal plane. Admittedly, the suit is still pending and during its pendency, the learned Judge, Family Court has passed the impugned order. Undoubtedly, order passed by the learned Judge, Family Court, for all intents and purposes is an interlocutory order, as the lis is pending before the learned Judge, Family Court and it has still to render its final verdict. The Legislature has made such order, passed by the Judge, Family Court, as non-appealable by specifically making a provision in that respect by virtue of subsection (3) of section 14 of the West Pakistan Family Courts Act, 1964 which for facility of reference is reproduced below:-- "

14. Appeal.

(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable:-- (a)

(b)

(2)

(a)

(b)

(c)

(3) No appeal or revision shall lie against an interim order passed by a Family Court. (4)

In these circumstances, when the Legislature has specifically prohibited the filing of an appeal against an interim order and if the constitutional petition is allowed to be filed against such order, it would tantamount to defeating and diverting the intent of the Legislature. Reference is made to Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others 1996 SCMR 1165, in which the Honourable Supreme Court was pleased to hold as under:-- "Constitutional jurisdiction, exercise of statute excluding a right of appeal from the interim order could not be bypassed by bringing under attack such interim orders in constitutional jurisdiction.... party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders." The petitioner has got an adequate remedy available to him by challenging the impugned order in appeal, which, he may file against the ultimate order/judgment if the same, would be passed against the petitioner. The petition is also hit by Article 199(1) of the Constitution, hence cannot be entertained.

4. For what has been discussed above, the present petition is incompetent and not maintainable, hence the same is hereby dismissed in limine. M.H./S-214/L Petition dismissed.