2003 PLP 814 (MLD)

Shawar Khilji for Petitioner. Instant writ petition is filed to challenge the impugned order dated 20-6-2002 whereby the learned Judge Family Court observed that there is no provision of recall of order passed by him as ample opportunities were given to the petitioner/defendant from 6-6-2000 uptill 10-9-2001 for a period of more than 15 months for cross-examination of plaintiff's witnesses but he has not availed the same. Now the present writ petition has been filed against the orders passed by the learned Judge Family Court.

2. The submissions made by learned counsel for the petitioner are that the impugned order is nullity in the eyes of law as the matter should be decided on merits and not on technicalities and no one should be condemned unheard. That after the Court time is over it is not lawful to proceed with the case and that the provisions of C.P.C. and Evidence Act are not applicable as such the impugned order is not in line as laid down for the family suits. That under Article 4 of the Constitution the right of an individual to be dealt with in accordance with law, as such a Constitutional and inalienable right of the petitioner has been violated.

3. I have heard the learned counsel for the petitioner and perused the record. On 23-7-2001 the learned Judge Family Court recorded that witnesses of the plaintiff are present for cross-examination but learned counsel for the defendant since morning is absent. Case is called several times and the Court time is about to finish, therefore, he fixed the case for plaintiff's evidence for 8-9-2001. On that date the learned Judge Family Court recorded that the evidence of the plaintiff is present for cross-examination but learned counsel for the defendant states that he is not ready for cross-examination and time of the Court is about to finish. There is request for adjournment, now the last opportunity for cross -examination is given to the petitioner/defendant, the case was fixed for 10-9-2001. On that date it was stated that learned counsel for the defendant is busy in High Court and the case was kept in waiting and when the learned counsel appeared lie submitted that he was not supplies with copy of affidavit, therefore, he cannot cross-examine the witnesses. The learned Judge Family Court stating the reasons struck off his right of cross-examination.

4. The West Pakistan Family Courts Act, 1964 is a procedural law. It is a special law made to expedite the dispute in between the marital spouses and, therefore, there is a deviation by the Legislature from the technicalities of civil procedure. Section 7(2) of the West Pakistan Family Courts Act, 1964 provides:-- "The plaint shall contain all material facts relating to the dispute and shall contain a schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose." Similarly section 9 provides the same procedure for written statement. Meaning thereby that the parties to litigation are put to caution as what are the witnesses and what they are going to depose and even if the evidence is given by affidavit the learned counsel for the parties can always examine the file. The excuse that they are not furnished with copies of documents, is futile at a later stage because if such copies ace not furnished an objection can be taken before the evidence is recorded. In the present case on three occasions the evidence was present, the petitioner/defendant was put to caution that it is the last opportunity but he did not avail the extension of time and opportunity given to him, therefore, finding no substance in the instant writ petition, no interference is called for in the impugned orders passed by the learned Judge Family Court. Writ petition is dismissed being devoid of force. H.B.T./J-63/L Petition dismissed.