1996 PLP 1372 (CLC)

6. According to Black's Law Dictionary "Final Decision" means "...One which leaves nothing open to further dispute and which sets at rest cause of action between parties. One which settles rights of parties respecting the subject matter of the suit and which concludes them until it is reversed or set aside".

7. As per Aiyar's Judicial Dictionary, 10th Edition, 1988 the word "decision" has been defined as under: "The expression 'decision' has a wide connotation. Whenever a question is determined, or a judgment is rendered, or a conclusion is arrived at, after weighing the reasons for and against the proposition, it is a decision. In the civil law generally it means the determination of a question, the final order which disposes of a suit or cause; also that portion of a statute which orders or directs the performance of a duty ....Under some circumstances 'decision' has been held equivalent to, or synonymous with "ascertainment". (see 6 CJS 788, Note 35; 'award', see 7 CJS 1311, Note 57, and 'order' see Gangadhar Lalliram v. Nirvachan Adhikari (AIR 1971 M.P. 16 (28) D.B.‑‑‑The word decision' means the determination of a question or controversy and not the reasons or grounds which weigh with the Court in arriving at such decision. "

8. With reference to the essence of decision and in the light of Estate of Orissa v. Sudhansu Sekhar Misra (1968) 2 SCJ 236)), the author says what is essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract the sentence here and there from a judgment and to build upon it.

9. From the definition given in different dictionaries it follows that each and every order passed by a Court of law would not amount to a decision. At l any rate orders regulating the mode of proceedings before the Court and not deciding the rights and obligations of the parties finally cannot be treated as "decision given" amenable to an appeal. For instance an order adjourning the hearing of a suit, an order to refuse to. adjourn a suit, an order refusing to summon a witness or an order ‑admitting' a document beyond the period fixed by the Court may not fall within the ambit of word "decision given". On the other hand an interim order transferring custody of a minor or making a provision for interim maintenance for the wife or a child may be treated as decision for the purpose of scrutiny by a Court of appeal. In the present case a large number of opportunities was provided to the petitioner; he being given a last chance and having contemptuous disregard for payment of costs of Rs.100 subject to which on earlier occasion adjournment was granted prima facie the trial Court cannot be said to have acted without jurisdiction, in excess of authority or in contravention of the settled principles of law. Having, however, held that the order passed was interlocutory in nature and did not decide the rights and obligations of the parties finally the view taken by the learned District Judge that the appeal for the impugned order was incompetent cannot be held to be arbitrary or against the provision of law as the suit is pending decision for the last about five years and not decree has been passed. It would, therefore, be open to the appellant to agitate this issue in the appeal from the final decree, if still aggrieved.

10. Preamble of Act 1964 tends to show that Family Courts were established in order to achieve the object of expeditious settlement and disposal of disputes relating to marriage and family affairs or matters connected therewith. Very purpose of enactment of Act shall be frustrated if each and every order passed by a Family Court is allowed to be appealed from the order called into question in writ jurisdiction before the High Court. Observation of the trial Court that the petitioner had been adopting delaying tactics, in my view cannot be completely overlooked and if the purpose behind appealing from the impugned order and invoking writ jurisdiction of this Court from the original as well Appellate Court's order is to create harassment for the wife and her minor child, the course adopted can only be deprecated by discouraging such uncalled for litigations. .11. I am fortified in this view by a Division Bench judgment of the Lahore High Court authored by Muhammad Afzal Zullah, J. (as his Lordship then was) in the case reported as Amanullah v. Mukhtar Ahmed Khokhar (1979 CLC 199). Explaining the object of West Pakistan Urban Rent Restriction Ordinance, it was held that the object behind the legislation contained in the Ordinance was to ensure quick disposal of cases relating to disputes between the landlord and tenant. If every order passed by a Rent Controller, during hearing of the case, is allowed to be challenged by means of a writ petition, it might not only amount to abuse of Constitutional jurisdiction but would also defeat the purpose for which the Ordinance was enacted.

12. In the case reported as Major Ali Hussain Siraj v. Mst. Shahzadi Bukht Shams (PLD 1977 Karachi 764) a Division Bench of this Court dealing with Constitutional petition from an order passed by the Family Court allowing procedural amendment of plaint in a suit for recovery of dower took the view that the scheme of Act showed that it is not the intention of the Legislature to non‑suit the parties on technical grounds for neither C.P.C. (except sections 10 and 11) nor Evidence Act apply to proceedings before it. Speaking for the Division Bench Mr. Fakhruddin G. Ebrahim, J. (as he then was) expressed the view that the Court was left with the impression that the purpose of the petition was to harass the respondent lady and to delay her suit and directed against the innocuous interlocutory order, which was dismissed with special costs of Rs.200.

13. There is yet another case decided by a learned Single Judge of this Court reported as Maqsood Ali v. Soofia Noushaba (1986 CLC 620) in which the purpose and scope of Act 1964 was explained at length with reference to various provisions. Dealing, with the order relating to execution of a decree passed by a Family Court it was observed as under:‑‑ "A perusal of the various provisions of the Act shows, that subsection (1) of section 14 the Act provides only for one appeal against a decision or decree of the Family Court. Subsection (2) of that section even goes to make certain decrees passed by the said Court non appealable. The intention of the Legislature, therefore, clearly seems to be to reduce further litigation in matters triable by the Family Court, specially in case of orders of interlocutory nature. Further, according to section 17 of the Act the application of the C.P C. to the proceedings under the Act is completely barred except sections 10 and 11 of the C.P.C. The intention of the Legislature, therefore, clearly seems to be that every decision given or decree passed by the Family Court should not be made appealable and also liable to be carried to the High Court under section 115 of the C.P.C."

14. Even in section 115, C.P.C. which provides for a revision before the High Court in respect of a "case decided" by a subordinate Court and in which no appeal lies, the view taken by superior Courts from time to time manifests that each and every order passed by a subordinate Court cannot be termed as "case decided".

15. In Habibullah v. Pak Cement Industries Ltd. (1968 SCMR 864) where the subordinate Court had permitted the admission of document not included in the list of documents relied upon before framing of issues, Honourable Supreme Court upheld the view taken by the High Court that the order permitting the respondents to place certain documents did not constitute a "case decided" within section 115, C.P.C. In Ahmed Din v. Australasia Bank Limited (1971 SCMR 507) order allowing amendment of plaint was held as not a "case decided" and not amenable to revisional jurisdiction of the High Court. In Amtul Rasool v. Ghulam Rasool (1974 SCMR 532) an order rejecting an application under Order XIX, rules 1 and 2, C.P.C. by executing Court was held as not a "case decided" and thus not revisable by the High Court under section 115, C.P.C.

16. In S.H.M. Rizvi v. Maqsood Ahmed (PLD 1981 SC 612) dealing with the word "final order" in the context of Service Tribunals Act, 1973, Hon'ble Supreme Court ruled that a final order has the distinction of determining the rights of the parties. Where any further step is necessary to perfect order, the order cannot be taken to be final. Their Lordships went on observing that an order may be final, if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal, etc.

17. Learned counsel for the petitioner realising the weakness of his case relied upon a Lahore judgment reported as Muhammad Javed Khan v. Mst. Noshin Bhatti and another (1991 CLC 1262) but this case does not improve the case of the petitioner and is of no assistance to him in view of entirely distinguishable features.

18. For the aforesaid discussion, there is no merit in this petition which is without any substance. It is accordingly dismissed. Since the proceedings in the trial Court were stayed by this Court on the application moved by the petitioners, trial Court shall take steps for early decision of this suit strictly in accordance with law and without unreasonable delay. A.A./M‑22/K Petition dismissed.