2013 PLP 190 (MLD)

MUHAMMAD AZAM KHAN, C.J.

During the pendency of a suit for dissolution of marriage, when the evidence of plaintiff, Safia Muneez, was being recorded on 29th September, 2011, a witness Masood Ahmed and another witness, the attorney for the plaintiff, were present in the Court. The case was called up at 11-30 a.m. The defendant appeared in the Court and sought time for producing his counsel up to 12-30 p.m. The Court kept on waiting for the counsel, who failed to attend the Court till 3-00, p.m., due to which the statements of witnesses could not be recorded. The Court ordered the defendant for payment of expenses of witnesses for the said date @ Rs.500 each. The defendant challenged this order by way of a writ petition in the High Court. A learned single Jude in the High Court dismissed the writ petition in limine vide impugned judgment on 6th January, 2012, hence the instant appeal with the leave of the Court.

2. The learned counsel for the appellant argued that the judgment of the High Court is not maintainable. The provisions of C.P.C. are not applicable in the proceedings before the Family Court. The Court cannot pass any order for payment of expenses to the witnesses. The learned single Judge in the High Court at one side has admitted the fact that there is no express provision in the Family Courts Act to pass an order for payment of expenses to the witnesses and the provisions of C.P.C. are not applicable in proceedings before the Family Court, but at the same time has also dismissed the writ petition on the ground that the Family Court can pass any order to meet the ends of justice. The judgment of the High Court is against the law and the same not maintainable.

3. While controverting the arguments, the learned counsel for respondent No.2 argued that the judgment of the High Court is perfectly legal. The Family Court has passed the order in a legal fashion and the High Court has correctly not interfered with the same.

4. We have heard the learned counsel for the parties and perused the record. At the outset we may observe that under section 17 of the Azad Jammu and Kashmir Family Courts Act, 1993, the provisions of Qanun-e-Shahadat and the Code of Civil Procedure do not apply to the proceedings in Family Courts unless expressly provided by or under the Act. A perusal of Family Courts Act shows that a Family Court has its own procedure for the trial of the cases specified in the Schedule of the aforesaid Act. The evidence in the cases under the Family Courts Act is recorded under section

11. Under subsection (1) of section 11, the Court is empowered to examine witnesses produced by the parties in such order as it deems fit. Although it is not expressly provided in what order the witnesses are to be produced, but a power is vested in the Court that the Court shall determine the mode/order "as it deems fit". Although the provisions of the Code of Civil Procedure are not applicable in the proceedings before the Family Court, but it may be stated that there always exists an implied and inherent power in every Court to pass a suitable order to meet the ends of justice and the requirements of principle of natural justice. A guideline may be sought from the general provisions of C.P.C. While dealing with section 17 of the Family Courts Act, in a case titled Fozia Javed Qureshi v. Zulfiqar Ali and another (2011 SCR 371) it was observed as under:-- "Although section 17 of the Act provides that the C.P.C. is not applicable in the proceedings before the Family Court, but the general principles of procedure are applicable." It is not expressly provided in the Family Courts Act that if the evidence of a witness is not recorded due to fault of defendant, expenses will be paid by the defendant to the witnesses, but at the same time it is not prohibited to pass such order. Unless it is expressly prohibited that the Family Court shall have no power to pass any order for payment of expenses to the witnesses, there shall be no bar for ordering as such. The Family Court can pass such order as it feels necessary for doing complete justice in the light of provisions of the Family Courts Act. It is a celebrated principle of interpretation of statutes that whatever is not prohibited expressly by law is deemed to be permitted. This view finds support from a case reported as Islamia University Bahawalpur v. Muhammad Hameed Bhatti and another (2004 SCMR 649). Similarly in another case titled Hakam Deers v. The State and 15 others PLD 2006 SC (AJ&K) 43 it was observed as under:-- " .the Courts are free to reach to a just decision by evolving or adopting their own procedure, if there is no other express provision in the field in relation to a matter or proceedings. It is held in the case reported as Willie (William) Slaney v. State of Madhya Pradesh (AIR 1956 SC 116) that absence of any provision on a particular matter does not mean that the Court has no power in regard thereto and the Court may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited by law."

5. It is evident from the order dated 29th September, 2011 that the witnesses were present in the Court, the defendant appeared and sought time for producing his counsel in the Court and the time was fixed as 12-30 p.m. The Court kept on waiting the counsel for the defendant till 3-00 p.m. The witnesses remained present in the Court, but due to absence of counsel for the defendant, the evidence could not be recorded. The Court had no option except to pass an order for payment of expenses to the witnesses by the defendant. Under section 44 of the AJ&K Interim Constitution Act, 1974, the High Court has power to issue a writ of certiorari if the order passed by the lower forum is against the law or violative of principles of law. The appellant failed to point out violation of provisions of Family Courts Act or the rules. The writ was liable to be dismissed and the same has rightly been dismissed by the High Court.

6. The result of above discussion is that finding no force in this appeal it hereby dismissed with no order as to costs. As the appeal has been dismissed, the status-quo order issued by this Court on 27-1-2012 is recalled. HBT/109/SC(AJ&K) Appeal dismissed.