2006 PLP 1128 (MLD)

ABDUL SHAKOOR PARACHA, J.

This order shall dispose of W.P. No.1738/2004 and W.P. No.1739/2004 as the parties are the same and identical questions of law and facts are involved in both the petitions.

2. Brief facts of the case are that Mst. Kaneez Fatima respondent No.1 filed two suits on 14-4-2001 for recovery of dower and dowery articles against the petitioner who had divorced Mst. Kaneez Fatima, respondent No.l. Petitioner was ordered to be proceeded against ex parte. Later on, vide order dated 22-10-2003 the said order was set aside subject to the costs of Rs.300. Copy of the plaint was supplied to the petitioner on 10-11-2003 and petitioner was directed to tile written statement on 6-12-2003. The petitioner did not comply with the order and therefore written statement was not filed on 6-12-2003. The case was adjourned for 8-1-2004, on which date written statement was again not filed. The Court proceeded to struck of the defence of the petitioner through the impugned order dated 8-1-2004.

3. Learned counsel for the petitioner contends that the provision of Order VIII Rule 10 C.P.C. was not applicable in the proceedings before Judge Family Court and therefore impugned order of striking off the defence of the petitioner is not warranted under the law. Notice was issued to the respondents who has entered appearance and with the consent of the parties the case was disposed of as pacca case.

4. Learned counsel for the respondent contends that the case was being delayed for one or the other reason by the petitioner without any just legal justification; that the case against the petitioner was filed by the respondent on 14-4-2001. The petitioner did not appear in Court and consequently, was proceeded. ex part but on his application ex parte order was set aside subject to payment of Rs.300 as costs on 22-10-2003. Petitioner asserted that he was not supplied with the copy of the plaint. On his request copy of the plaint was supplied to him on .10-11-2003 and was directed to file written statement on 6-12-2003. This order dated 6-12-2003 was not complied with and written statement was not filed. Thereafter, the Court adjourned the case with last opportunity to the petitioner to file the written statement on 8-1-2004 on which date written statement was not filed and consequently, the impugned order for striking off the defence of the petitioner was passed. Further contends that Family Court although a forum of limited jurisdiction yet Court has to regulate its own proceedings as West . Pakistan Family Courts Act, 1964 does not make provision for every conceivable eventuality and unforeseen circumstances. Party defaulting persistently and acting contumaciously, Family Court not denuded of authority to pass punitive order against such party. West Pakistan Family Courts Act, 1964 enacted with object of expeditious disposal of disputes relating to family affairs and the contumacious default of defendant to file written statement, Family Court will be within its authority to make orders envisaged by Order VIII Rule 10 C.P.C. to deprive the defaulting party of his right to file written statement. Reliance has been placed on Khalilur Rehman Bhutta v. Razia Naz and another (1984 CLC 890).

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

6. Conduct of the petitioner in this case is contemptuous. Case against the petitioner was filed by the respondent on 14-4-2001. He was proceeded ex parte and on his application proceedings of ex parte against him was set aside subject to payment of Rs.300 as costs vide order dated 22-10-2003. Thereafter, he raised the plea that the copy of the plaint has not been supplied to him. On 10-11-2003, copy of the plaint was received in Court by the petitioner and he was directed to file written statement on 6-12-2003. This order was not complied with and yet another opportunity was granted to him to file written statement on 8-1-2004. Even then the written statement was not filed by the petitioner and the order of the Court granting last opportunity was not complied with. Consequently, the Court proceeded to deprive him of his right to file written statement through the impugned order.

7. In similar circumstances in the case reported as Khalilur Rehman Bhutta v. Razia Naz and another (1984 CLC 890), it has been held that, "thus for the orderly dispensation of justice under the Act, in the case of a contumacious default of a defendant, to file the written statement, the Family Court will be well within its authority to make an order, in the nature of one envisaged by Order VIII Rule 10 C.P.C. and deprive him of his right to file written statement. " In this view of the matter, there is no force in this petition and the same is dismissed. However, the petitioner will be allowed to participate in the proceedings and test its veracity of the respondents' ex parte evidence through cross-examination.

8. With the above observation and direction, this writ petition is dismissed of. M.I./M-228/L Order accordingly.