2022 PLP 233 (CLC)

RAHEEL KAMRAN, J.

Through this writ petition, the petitioner has challenged the judgment dated 07.08.2021 passed by the learned Additional District Judge, Gujranwala whereby appeal of the petitioner filed against judgment and decree dated 30.06.2016 of the learned Judge Family Court, Gujranwala, passed in the suit filed by the respondent for recovery of dowry articles and maintenance allowance, has been dismissed for being barred by limitation.

2. Facts of the case, as asserted by the respondent in her suit filed against the petitioner, are that she was married to the petitioner on 3.5.2009. In September, 2010 while she was pregnant, the petitioner ousted her from his house after giving her severe beating. She gave birth to a male child, namely, Muawaz Ahmed on 1.4.2010. Thereafter, the respondent filed suit for recovery of dowry articles and maintenance allowance for herself and the minor child against the petitioner ("Suit") which was partially decreed in their favour by the learned Judge Family Court, Gujranwala, vide judgment and decree dated 30.6.2016. The petitioner assailed the said judgment and decree in appeal on 29.7.2021, which was dismissed by the learned Additional District Judge, Gujranwala, vide judgment and decree dated 7.8.2021. Hence, the instant writ petition.

3. It is pertinent to mention here that the instant writ petition has been filed by the petitioner through his special attorney i.e. Mukhtar Ahmed Butt, who is his real father.

4. Special Attorney of the petitioner contends that the judgment and decree dated 30.6.2016 is a nullity in the eye of law as the Presiding Officer, being a Civil Judge, Class 3rd had no authority to exercise powers of a Family Court Judge as the subject matter of the suit valued more than Rs.22,00,000/- which was beyond his pecuniary jurisdiction on the original civil side. In this regard he has relied on the Notification No.114/RULES/XXI. C.35, dated Lahore, the 21st March, 2000 ("notification"). On that basis he contends that appeal of the petitioner filed against the judgment and decree dated 30.6.2016 could not be dismissed for being time barred as no limitation runs against a judgment and decree which is void and passed by a forum that lacks jurisdiction. Therefore, he pleads that the impugned decision dated 7.8.2021 of the learned Additional District Judge is of no legal effect.

5. Arguments heard. Record perused.

6. The judgment and decree challenged before the appellate Court was passed on 30.6.2016 whereas the appeal against the same was filed on 29.7.2021 i.e. much after the lapse of 30 days' period of limitation prescribed under the law

1. Such hopelessly time barred appeal was thrown out by the learned Additional District Judge through the judgment impugned in the instant Writ Petition. It appears that the plea of lack of jurisdiction of the learned Judge Family Court has been raised by the petitioner before this Court only to overcome the obvious legal hurdle of limitation that stands in his way. There is nothing available on record to show that the petitioner had raised this question of legality and validity of the judgment and decree passed by the learned Judge Family Court on the ground of lack of jurisdiction. The petitioner has not placed before this Court copies of the judgment and decree passed by the learned trial Court and the grounds of appeal preferred by him to show that he had taken the objection regarding lack of jurisdiction before the courts below. Be that as it may, it is now settled law that if any matter is adjudicated upon or decided by a court or forum that lacks jurisdiction then such decision shall be void and of no legal effect2, therefore, this Court shall proceed to decide this point of law.

7. What was filed by the respondent and partially decreed on 30.06.2016 was a suit for recovery of dowry articles and maintenance allowance for herself and the minor child against the petitioner. For expeditious settlement and disposal of disputes relating to marriage and family affairs, special courts namely Family Courts have been established under the Family Courts Act, 1964. Being a matter relating to family affairs, under section 5 of the Family Courts Act, 1964 ("Act") the Suit falls within the exclusive jurisdiction of the Family Courts established under section 3 of the Act.

8. Qualification of a Family Court Judge is provided in section 4 of the Act, which is reproduced below: "No person shall be appointed as a Judge of a Family Court unless he is or has been or is qualified to be appointed as a District Judge, an Additional District Judge, a Civil Judge or a Qazi appointed under the Dastur-ul-Amal Diwani, Riasat Kalat. (emphasis added by the Court).

9. Section 14 of the Family Courts Act, 1964 governs the appellate jurisdiction in terms whereof, a decision given or a decree passed by a Family Court is appealable to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by the Government to be of those ranks or status, or to the District Court in any other case.

10. There is no provision in the Act for regulating or restricting jurisdiction of the Family Courts in terms of valuation of the subject matter involved in family suits. The provisions of appeal under section 14 of the Act reaffirm that no classification of jurisdiction on pecuniary basis is intended by the legislature for adjudication of matters relating to family affairs. This is manifest also from the position that all appeals against decisions given or decrees passed by Civil Judges while presiding over Family Courts lie before District Courts without any distinction regarding value of the subject matter.

11. The notification relied upon by the Petitioner was issued under provisions of the Punjab Civil Courts Ordinance, 1962 ("Ordinance") which governs the matters relating to Civil Courts in Province of the Punjab generally. Section 9 of the Ordinance postulates that the jurisdiction to be exercised in original civil suits as regards the value by any person appointed to be a Civil Judge shall be determined by the High Court either by including him in a class or otherwise as it thinks fit. Section 18(1) of the Ordinance provides for the remedy of an appeal before a High Court or the District Judge against decree or order passed by a Civil Judge on the basis of pecuniary limits specified therein. The notification, which has general application, prescribes three classes of Civil Judges to exercise pecuniary jurisdiction specified therein in respect of original civil suits and proceedings on the basis of value of the subject matter.

12. It is settled law that where there is a conflict between a special law and a general law, the former shall prevail.3 The provisions of the Family Courts Act, 1964, which embody a special law, is manifestly distinct and inconsistent with the provisions and scheme of the Ordinance, which is a general law, therefore, provisions of the Ordinance (such as sections 9 and 18 ibid) are declared to have no application insofar as those are inconsistent with provisions of the Act or the Rules made thereunder. The object, purpose, policy and the legislative intent underlying the Act highlighted herein above, provide sufficient justification for such precedence. Resultantly, the notification relied upon by the petitioner is declared to be irrelevant and inapplicable to the proceedings before the Family Courts.

13. Finally, it would be worthwhile in the context of current proceedings to make a reference to Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 which provides that each High Court shall supervise and control all courts subordinate to it. This mandate not only empowers but also places a responsibility on the shoulders of this Court to supervise and control all courts subordinate to it. Such control is exclusive in nature, comprehensive in extent and effective in operation.4 For proper administration of justice, and fulfillment of the above mandate, this Court has issued instruction letter No.1992/JOB-II(1)/XV.B.9, dated 6th February, 20015 in terms whereof Civil Judges 3rd Class have also been entrusted with jurisdiction to try family matters, which is in consonance with, and in no way inconsistent with, the object, purpose, policy and the legislative intention as expressed through various provisions of the Act.

14. For the foregoing reasons, there is no merit in the titled writ petition, which is dismissed in limine. SA/E-3/L Petition dismisse