2008 PLP 1826 (YLR)

KH. FAROOQ SAEED, J.

This writ petition has been filed against the order of the Judge Family Court, Bhalwal, dated 3-3-2008. Through the said order, the learned Judge Family Court has held that condition in the nature of Column 19 of the Nikhanama, that deals with some actionable claim can always be equated with the personal property in terms of `Haq Mehar' or dowry articles given to her by her parents. The same, therefore, can be decided by the Judge Family Court.

2. In support of his claim, learned counsel for the petitioner has referred PLD 2007 Lah. 515 re: Muhammad Akram v. Mst. Hajran Bibi and 2 others. He says that the judgment, he has referred now, was produced before the Judge Family Court, who ignored the same and decided the case on the basis of another earlier judgment, which for all practical purposes stands superseded by the judgment referred by him.

3. Arguing in support of the maintainability of the writ petition, learned counsel has referred PLD 1982 Lahore 92 re: Messrs Shahzad Ice Factory and 2 others v. Special Judge Banking (II), Lahore and another 1985 CLC 2758 re: (Mst.) Shereen Masood v. Malik Naseem Hassan Judge Family Court, Lahore and another, and then PLD 2004 Supreme Court 108 re: Government of Punjab through Minister for Revenue, Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Limited. In all the above four judgments, this Court has allowed interference through a writ jurisdiction against an interlocutory order if through the same an issue involving determination of a valuable right has been decided.

4. The respondent's counsel, on the other hand, firstly says that the judgment holding an actionable claim to be a different item, then the personal property in family matters in ignorance of earlier judgment on the subject is per incurium. This Court having failed to consider its earlier decision reported as PLD 2004 Lahore 558 (correct citation is PLD 2004 Lahore 588) re: Nasrullah v. District Judge, Mianwali and 2 others, which was of binding nature, the subsequent judgment cannot be followed Even otherwise he said that this is an interlocutory order and is not of any adverse effect on the right of the petitioner. He claims that the petitioner challenged the jurisdiction of the Judge Family Court and his objection has not been allowed. Since, it is in a manner a decision which shall not be a part of the subsequent main order, the issue has attained finality.

5. So far as the status of the two judgments before this Court is concerned, one can agree with the petitioner that if there are two conflicting judgments of the same strength, the matters need to be referred to the Honourable Chief Justice for referring the case to the Bench of higher strength. However, in this regard, one should also not ignore that the writ jurisdiction is a special power. It has been provided to advance remedy where no other alternative remedy is available. There is a consensus on the issue by this Court as well as in the superior Courts is that the writ jurisdiction in respect of an interlocutory order can be invoked only if a substantial matter has been decided or a gross injustice or irreparable injury to the party has been caused. In this case, issue of jurisdiction of Judge Family Court has been decided. It obviously does not mean that the matter or issue of payment of the amount, under discussion, also stands culminated. The said issue is to be decided on the basis of law, merit and facts. However, the issue of the jurisdiction of the Judge Family Court shall not be discussed again and shall obviously not be a part of the subsequent main order. Reliance is placed on 1996 CLC 94 re: Muhammad Zaffar Khan v. Mst. Shahnaz Bibi and 2 others. The above judgment is direct on the issue. It says that the order relating to a question of jurisdiction is an appealable order. The said judgment has further relied upon 1989 MLD 54 re: H. Munawar Ali v. Mst. Sarwar Bano. The Honourable Court in Muhammad Zafar Khan (supra) has fixed two parameters, which are as follows: (i) If the nature of the order appears to be final, then it should not be treated an interlocutory. The example for this was the issue of jurisdiction. Obviously, if the issue of jurisdiction is decided in favour of the person, it decides the entire petition. (ii) In case, Judge Family Court dismisses the application as has been done in this case, the issue stands finally decided and question of jurisdiction cannot be raised again before him during subsequent proceedings. This decision, therefore, is not an interlocutory order. (iii) If, however, the Courts neither allow nor disallow the application or dismisses the said objection and only frames an issue; it is an interlocutory order as the issues raised therein are not finally decided. 5-A. On the basis of above three parameters and further relying upon the meanings of `interlocutory', the Honourable Sindh High Court finally held that the issue of a jurisdiction decided by the Family Court against the one who has raised it, is not an interlocutory order. The appeal, therefore, lies against such an order under section 14 of the West Pakistan Family Courts Act, 1964, provided the same is not hit by section 14(2) of the said Act. The Court has further held in the said case that "even section 14(2) was not hit and it was later decided that it is an appealable order. This Court fully agrees that the judgment produced by the respondent. This has been adopted and has been held that interlocutory order, which decides a valuable right of a person for all practical purposes become final order to the extent of said issue. The consensus of this Court that in such situation, writ jurisdiction should not be denied, is basically on the same principle but if the order is final to the extent of the said issue, then obviously calling it an interlocutory order may not be correct. The judgment of the Honourable Sindh High Court (supra) referred by the respondent has, therefore, discussed the issue in correct perspective. As already held the issue of jurisdiction having been decided finally, the order to the said extent obviously is not an interlocutory order and thus is appealable under section 14 of the ibid Act. In view of the said available remedy this Court is not inclined to exercise its writ jurisdiction, the same is, therefore, declined.

6. Dismissed. S.A.K. /M-122/L Petition dismissed.