2013 PLP 679 (MLD)

MUHAMMAD ANWAR KHAN KASI, J.

Through this constitutional petition, the petitioner Tauseef Ahmad (defendant in suit filed by respondent Fauzia Akram seeking decree for recovery of maintenance allowance, dower and dowry etc.) has called in question, the order dated 12-12-2012, passed by learned Judge Family Court Islamabad (Miss Shaista Khan Kundi), whereby right of the petitioner (defendant) to produce evidence was closed on the ground that on the date fixed i.e. 12-12-2012 the case was fixed for production of documentary evidence by the petitioner (defendant), who failed to file the same despite the fact that it was last opportunity. The main ground urged by the learned counsel inter alia is that the order in question has been passed in haste by ignoring the fact that the case was not fixed for production of documentary evidence and that proceeding further with the case will cause irreparable loss to the petitioner. Conversely, learned counsel for the respondent (plaintiff in main suit) opposed the petition by maintaining that aim and intention of the petitioner is just to prolong the proceedings of a suit which is a family suit and is to be decided on priority basis. After giving due consideration to the submissions advanced by both the sides, I have also gone through the material appended with the petition i.e. the order sheets and I am of the view that it would be in the interest of justice if the petitioner (defendant) is given a final opportunity to adduce his version and it was for this reason that on the date preceding to the date of impugned order, petitioner (defendant) was afforded last opportunity to submit reply to application for production of documents. It means that the case was not fixed for the production of documentary evidence. However, I would also observe here that conduct of the petitioner also deserves some penalty as on many occasions none appeared on his behalf. Apart from above, the spirit of the law is to impart justice, substantial in nature, which can only be done after hearing both the sides and following the principle of merits instead of technical knockout. The law on the subject is very specific. It has been stated time and again that cases of the parties should be decided on merits. See: Syeda Tahira Begum and another v. Syed Akram Ali and another (2003 SCMR 29). Technicalities of law are always avoided and discouraged in order to do complete justice and to ensure that justice is not only done but also seen to have been done. Rules of procedure are enacted for fostering the ends of justice and preserving the rights rather than to stifle the dispensation of justice and unless they are insurmountable, ends of justice always outweigh the manner of practice and procedure. Ref: "Muhammad Bashir and another v. Province of Punjab through Collector of District Gujrat and others (2003 SCMR 83), Riaz Hussain and others v. Muhammad Akbar and others (2003 SCMR 181). Justice at no cost and at no stage should be allowed to fall prey to procedural technicalities, which may be ignored if they tend to create hurdles in the way of justice. Ref: Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others (2012 SCMR 1258). In view of above, while setting aside the impugned order dated 12-12-2012, the learned Court, seized with the trial of Family Suit, is directed to afforded the petitioner (defendant in main suit) an absolute last opportunity to adduce his version and to complete his evidence on one and the same date but that too subject to payment of costs of Rs.2000 as it is a family suit and is to be decided on priority basis in the light of NJPMC decisions. Both the learned counsel, present in Court, are directed to provide their full assistance to the learned Trial Court in completing the task. The learned Trial Court is further directed to decide the suit within a period of one month from the receipt of this order under intimation to this Court through the Registrar. The captioned writ-petition is disposed of in above terms leaving the parties to bear their own costs. KMZ/34/Isl Petition allowed.