2004 PLP 510 (MLD)

(3) Qurban Ali and another v. The State PLD 1984 AJ&K 104. (4) Chairman AKLASC and 2 others v. Abdul Hameed Siddique and another 2002 PLC 163. (5) Muhammad Hanif v. Baqa Muhammad PLD 1979 SC (AJ&K) 120.

5. We have heard the counsel for the parties and also gone through the record. The trial Court dismissed the suits filed on behalf of the appellant in default. The applications were moved on the same day with the pleas that the counsel for the appellant was busy before another Court. The trial Court restored the suits. The order was challenged before the Shariat Court of Azad Jammu and Kashmir through an appeal which was accepted on the ground that sufficient cause was not shown through any proof on record.

6. The Azad Jammu and Kashmir Family Courts Act, 1993 was legislated for the settlement of disputes relating to marriage and family affairs or matters connected with it. Any decision or decree passed by the Family Court shall be appealable to the Azad Jammu and Kashmir Shariat Court. There are certain decisions or decrees which have not been made appealable to the Shariat Court. Before arriving at a conclusion whether the order impugned before the Shariat Court was included in the definition of decision or decree it would be useful to reproduce relevant section of the Act:‑ "14 Appeals.‑‑‑(1) Notwithstanding anything provided in any other law for the time being in force, a decision or a decree passed by a Family Court shall be appealable within thirty days to the Azad Jammu and Kashmir Shariat Court only. (2) No appeal shall lie from a decree passed by a Family Court‑‑‑ (a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939; (b) for dower not exceeding rupees one thousand; (c) for maintenance of rupees seventy‑five or less per month. (3) Every appeal under this Act shall be decided by the Appellate Court within a period of sixty days, from the date of presentation of appeal. (4) Subject to the provisions of subsection (5) the order of the Azad Jammu and Kashmir Shariat Court shall be final (5) An appeal to the Supreme Court of Azad Jammu and Kashmir from judgment, decree or order of the Shariat Court shall lie only if the Supreme Court of Azad Jammu and Kashmir being satisfied, that the case involves a substantial question of law of public importance grants leave to appeal.

7. A bare reading of provisions of law provided for filing of appeal before the Shariat Court shows that it is only a decision or a decree which had been made appealable to the Shariat Court. The intention of the Legislature while enacting this law has been given in the preamble that the tame was legislated for expeditious settlement and disposal of disputes relating to marriage and family affairs, therefore, to avoid protracted litigation no appeal or revision is provided against the interim orders. Even there were certain decrees which have not been made appealable before the Shariat Court which further supports the above view. Though a decision or a decree has not been defined in this Act and the application of the provisions of the Evidence Act and the Civil Procedure Code have been excluded. However, we seek guidance from the other statutes where the decision and decree have been defined. The word `decree' has been defined in Civil Procedure Code in subsection (2) of section 2 dealing the definitions as follows:‑ "(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit any may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within section 144, and an order under rules 60, 99, 101, 103 of the Order XXI] but shall not include‑‑ (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.‑‑‑A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." Similarly, the word Judgment has been defined in subsection (9) of section 2 of the Civil Procedure Code as under:‑‑ "(9) "Judgment" means the statement given by the Judge of the grounds of a decree or order."

8. A decree means an order by one in authority, a judicial decision. The decisions given by the Courts of law can either be decrees or orders. Both must be formally expressed and be in. precise and deliberate language. Ordinarily, an appeal lies from every decree. The orders on the other hand are appealable only if so provided in law. A decree conclusively determines the rights of the parties while an order does not necessarily do so: The word `adjudication' refers to a judicial determination of a matter in controversy. A `judgment' means the judicial decision of a Court or Judge. A judgment not necessarily deals with all the matters in issue in a suit but may determine only those issues the decision whereof will have the effect of adjudicating all the matters in controversy or will result in a final disposal of the suit. Every statement of grounds will not be a judgment but will be so only if such decision can result in a decree or order.

9. The proposition what is meant by `decision', `judgment' or `decree' was debated before the Supreme Court of Azad Jammu and Kashmir in a case reported as Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government PLD 1990 SC (AJ&K)

23. The proposition was resolved in paras. 36 and 37 of the judgment. The relevant observations are reproduced:‑ "36. `There cannot be two views that ordinarily the decisions given by the Courts of law can be either judgments orders or decrees. Ahmed Musaji Saleji v. Hashmi Ebrahim Saleji AIR 1915 P.C. 116 impliedly owns this view. It has been held in this case: `The Code makes no provision for something which is neither a decree nor any order, nor for anything which is both, neither does it provide that one adjudication by the Court can be resolved into diverse elements, some of which are decrees and some orders.' "

37. To have a correct view of the issue, it would be necessary to find and determine the meanings of the words "judgment", "order" and "decree", "Judgment" under section 2(9) of the Code of Civil Procedure means "the statement given by a Judge of the grounds of a decree or order". So, broadly speaking every statement of grounds can be considered as a judgment, if such a decision can result in a decree or order. "Order" under section 2(14) of the Code of Civil Procedure means "final expression of any decision of a Civil Court which is not a decree". Thus, the term "Order" means and cannot a decision of a Court or Judge short of decree. According to Shorter Oxford Dictionary, in law, the word "Order" means "decision of a Court or Judge made or entered in writing." According to the same dictionary, the meaning of the word "judgment" is "a judicial decision or order in Court." However, the importance of a decree lies in the fact that ordinarily an appeal lies from every decree. "Orders" on the other hand are appealable only if so provided by section 104 read with Order XLVII of the Code of Civil Procedure or under the Supreme Court Rules or under Constitution Act. A vital difference, however, is that a decree ordinarily conclusively determines the rights of the parties whilst the order does not necessarily do so. This view we have in Mt. Chaulti v. Mt. Meghoo AIR 1945 All. 268." Similar question also came under consideration before the Supreme Court of Pakistan in a case reported as Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and another 1986 SCMR 1736 where the resolution was made in the following words at page 1760:‑‑ "'Judgment' has been defined in section 2, clause (9) of the Civil Procedure Code as `judgment' means the statement given by the Judge of the grounds of a decree or `Order' and 'Order' has been defined in clause 14 of the same section as `formal expression of any decision of a Civil Court which is not a `decree'. Further, Order XX, rule 4, sub rule (2) prescribes that "judgment of Courts other than the Court of a Small Causes `shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision'. Rule 5 of the same Order provides in suits in which issues have been framed the Court shall state its finding or decision with reasons therefore upon each separate issue, unless the finding upon anyone or more of the issues is sufficient for the decision of the suit."

10. Therefore, keeping in view the phraseology employed in use of words `decision' or `decree' in section 14 of the Family Courts Act, 1993 in the light of dictionary meaning approved by the wisdom of the learned Judges while resolving the controversy in above referred authorities, we can safely arrive at a conclusion that interlocutory matters which do not finally dispose of the cases are not appealable before the Shariat Court. It follows that the appeal filed before the Shariat Court against the order recorded by the Judge Family Court for restoration of the suits was not competent. Therefore, the order passed by the Shariat Court was not maintainable as such is set aside' by accepting the appeal. As the matter has been disposed of on the aforesaid point therefore we do not feel any necessity to advert to other points raised by the parties Consequently, the suits shall proceed in the trial Court. The case‑law referred to by the learned counsel for the parties due to its distinct facts is not squarely applicable to the case in hand as such is not discussed. M.B.A./1/SC (AJK) Appeal accepted.