P L D 2009 Islamabad 4 (PLP)

SYED QALB-I-HASSAN.

The instant writ petition has been filed to call in question order dated 15-1-2008 passed by respondent No.2 whereby the defence of the petitioner was struck off.

2. The facts of the case giving rise to the present writ petition are that respondent No.1 instituted a suit for recovery of maintenance allowance etc., in the Court of learned Judge Family Court, Islamabad on 15-5-2006. The service of summons upon the petitioner could not be effected through ordinary modes, so he was served through publication in the newspaper "Daily Pakistan" for 3-10-2006 and on the said date no body appeared on his behalf and ex parte proceedings were ordered against him. Thereafter, the case was fixed for ex parte evidence of respondent No.1 which was recorded. Thereafter the petitioner moved an application for setting aside ex parte proceedings on 15-1-2007. The case was then adjourned to 14-2-2007, 12-3-2007, 12-4-2007, 12-6-2007, 5-7-2007, 24-7-2007 and 13-9-2007 when the learned counsel for respondent No.1 made a statement that the ex parte proceedings may be set aside subject to imposition of costs. The learned Judge Family Court set aside the proceedings on the payment of costs of Rs.400 and the case was adjourned to 4-10-2007 for filing of written statement and payment of costs. The case was then adjourned to 18-10-2007 for the payment of costs and filing of the written statement. On this date the petitioner again did not appear and ex parte proceedings were initiated against him and the case was adjourned to 14-12-2007 for ex parte evidence. The petitioner again moved an application for setting aside ex parte proceedings and the same was also accepted subject to payment of costs of Rs.400 and the case was adjourned to 15-1-2008. On this date, none appeared on behalf of the petitioner and his defence was struck off. The present writ petition has been filed against the order dated 15-1-2008.

3. The learned counsel for the petitioner contended that the petitioner along with his counsel appeared before the learned lower Court to submit written statement but the order striking off his defence had already been passed in hasty manner. The learned lower Court exercised its discretion perversely, improperly and with material irregularities, which is not sustainable in the eyes of law.

4. Learned counsel for respondent No.1 contended that ample opportunities were granted to the petitioner. Ex parte proceedings were set aside twice subject to payment of nominal costs but the petitioner avoided to submit his written statement within a period of one year and eight months. He supported the impugned order.

5. I have heard the arguments of the learned counsel for the parties and perused the record.

6. In my view the question for consideration in this petition is that whether the written statement is essential for the proceedings of family matters like general suits where Civil Procedure Code and Qanun-e-Shahadat are applicable and what will be the effect of non-filing of written statement in the proceedings under Family Courts Act. In order to resolve the controversy between the parties, it is necessary to refer section 10 of the Family Courts Act; "(1) When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case. (2) On the date so fixed, the court shall examine the plaint, the written statement (if any) and the precise of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties and their counsel. (3) At the pretrial the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible. (4) If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording evidence."

7. It is manifestly clear that the Court shall examine the plaint, written statement, if any and evidence, it would mean that the filing of written statement in the family case is not essential. Subsection (3) of section 10 has contemplated that the Court shall make an attempt to effect compromise or reconciliation between the parties and sub-section (4) was further provided that if no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording evidence. The word, "if any", in subsection (2) of section 10 signifies that even if there is no written statement, reconciliation proceedings must be held and evidence should be recorded because preamble of the Act 1964 tends to show that the Family Courts were established in order to achieve an expeditious disposal of the family disputes and the matters relating therewith. The perusal of the order sheet of the trial Court makes it crystal clear that the petitioner had been adopting delaying tactics and in my view the present petition was filed to harass the wife and prolong the litigation unnecessarily such a course adopted can be depricated by discouraging such uncalled for litigation. The learned Family Court has not straight away decreed the suit but after striking off defence of the petitioner, adjourned the case for cross-examination on 7-2-2008 and 25-2-2008 and in this view of the matter, the learned Family Court has not committed any illegality or irregularity in the proceedings, rather has acted strictly expeditious settlement and disposal of the dispute relating to family affairs.

8. For the above said reasons, there is no merit in this petition which is without any substance and is accordingly dismissed. Since the proceedings in the trial Court were stayed by this Court, so the learned trial Court shall take steps for early decision of the suit strictly in accordance with law and without unreasonable delay. Petition dismissed. H.B.T./M-388/ISL Petition dismissed.