PLD 1976 LAHORE 1015 (PLP)

This writ petition has been filed to challenge an order dated 20‑5‑1975 passed by Mr. Inayat Ullah Cheema, Additional District Judge, Lahore allow ing the appeal of respondent No. 1 under section 14 of the West Pakistan Family Courts Act, 1964 against an interlocutory order of the Judge, Family Court by which he refused to the said respondent permission to place on record and prove a Kabinnama executed by the petitioner.

2. The petitioner and respondent No. 1 are husband and wife. They were married on 17‑6‑1968. Litigation between them started in 1972 now four suits are pending in the Family Court at Lahore. One suit which was filed by the petitioner is for restitution of conjugal rights while three suits in which respondent No. 1 is plaintiff are for dissolution of marriage, recovery of maintenance and recovery of dower debt. All the suits have been con solidated and evidence is being recorded in the suit for dissolution of marriage. Respondent No. 1 submitted an application under section 7 of the Act on 12‑11‑1974 for permission to prove a Kabinnama which she‑ discovered was in possession of her uncle Syed Hussain Mahmud who was incharge of her marriage, and was presently lying indisposed at Karachi. It was stated that the document had a special bearing on the matters in issue between the parties and would be helpful to the Court in arriving at a just conclusion. In order to claim equality of treatment it was urged that the petitioner had also produced and got exhibited at least twenty three photographs before the local Commissioner who examined Syed Hasan Mahmud (father of respondent No. 1), although he had never relied upon those documents or placed them on record. The petitioner opposed this application. He denied execution of the document in his written reply although he found it difficult to deny his signatures thereon. This he explained by asserting that the father and uncle of respondent No. 1 had obtained his signatures after marriage on countless documents since it was necessary to prepare papers for the departure of the said respondent for foreign countries: the signatures op this document were also obtained in the same context. Despite the admission about the docu ment being signed by the petitioner, the learned Judge, Family Court dismissed the application on the ground that in view of the failure of respon dent No. 1 to rely upon it and to place it on record for a long time he could not treat its genuineness to be "above board". On appeal the learned Additional District Judge disagreed with the order of the trial Judge. He held that the delay was not the only factor to be considered for exercise of discretion but the Court should have considered various other points such as (I) that the document is executed on a stamp paper which bears the date of its purchase, (2) that it is entered in the register of the stamp vendor, (3) that the petitioner is alleged to have signed the register of the petition‑writer at the time of execution, and (4) that the petitioner had himself made some admission (about signatures) in his reply. He found it to be a fit case for allowing respondent No. 1 to prove this document. An objection about competence of appeal was taken on behalf of the petitioner but the learned Additional District Judge repelled this argument, and allowed it.

3. This case was admitted to consider whether an interlocutory order passed by a Judge Family Court in proceedings before it is appealable. The learned counsel for the petitioner confined his argument to this question. He argued that the object of the Family Courts Act is to shorten litigation and although section 14 provides for appeals against decisions but the word 'decision' also should be interpreted as meaning a final determination by the Court. If an extended meaning is given to this term so as to include inter locutory orders, that will not advance the purpose for which the Act has been enforced. He also pointed out that the appellate power against a decree also is restricted. If the word "decision" is given a wider connotation as inclusive of interim orders, the situation will become anomalous since on the one hand section 14(2) makes certain decrees also unappealable and on the other hand all the interim orders culminating in decrees which are not appealable under section 14(2), will have to be held appealable. He relied upon Qudrat Ullah v. Iqbal Begum (P L D 1968 Lah. 309) and Wajahat Ali v. Mst. Ghazala (P L D 1970 Lah. 641) where it was held that the purpose of the Act being to shorten litigation interlocutory orders cannot be brought for exercise of revisional jurisdiction before the High Court. He also relied upon Ibrahim v. Muhammad Hussain (P L D 1975 S C 457) in which while interpreting section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, their Lordships held that interlocutory order of deposit of rent under section 13(6) of the Ordinance is not appealable. Alternatively, the learned counsel argued that at least an order allowing or refusing to allow the pro duction of additional evidence, documentary or oral, cannot amount to a decision. He relied upon Habibullah Khan v. Pak Cement Indus. Ltd. (1969 S C M R 965) where such an order has been held not to amount to a case decided within the meaning of section 115, C. P. C.

4. The learned counsel for the respondent on the other hand argued that there is no warrant for restricting the scope of the word 'decision' to a final decision only. He urged that the law contemplates initiation of every proceeding under the Act by a plaint and its termination by a decree. For this reason the only meaning that can be given to the word 'decision' is an interlocutory order. He urged that in case of a special law one should not go to analogies either of general law or the special law as by doing so the face of the special law is likely to be denied and mutilated. He referred to Abul A'la Maudoodi v. Government of West Pakistan (P L D 1964 S C 673) in support of this proposition. He referred to various sections of the Act in order to make a point that if interlocutory orders are held not to be appealable, it may cause injustice to the parties and urged that these provisions provide intrinsic aid to interpretation of section

14. According to the learned counsel the word "decision" should be held of the same scope as the words "case decided" in section 115 and it must include any state of fact judicially considered. He referred to Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 149) for the interpretation of the "case decided" as also Bashir Ahmad v. Qaisar All (P L D 1973 S C 507) where the Karachi case was approved. The learned counsel also argued that the discretionary jurisdiction in Article 199 of the Constitution should not be exercised in favour of the petitioner in the present case, since the appellate order has only removed a grave injustice caused by the trial Courts judgment to respondent No.

1. He submitted that the petitioner by his own conduct had deprived himself of the right to approach this Court for exercise of the jurisdiction under this Article, since he himself had filed an appeal against the order of consolidation of suits and after dismissal of that appeal had taken the matter further to the High Court by Writ Petition No. 1689 of 1974 which was dismissed on the 28th October 1974. In support of the point about the exercise of discretion he relied upon Raunaq All v. Chief Settlement Com missioner (P L D 1973 S C 236) where it was held that the writ jurisdiction being equitable it is within the jurisdiction of the Court to refuse to exercise it even if the order impugned therein is without jurisdiction.

5. The last point raised by the learned counsel for the respondent is without force. The mere fact that the petitioner himself had filed an appeal against an interlocutory order is not such conduct as may disentitle him to the equitable remedy if it is ultimately held that the appellate order was absolutely without jurisdiction. The other two points, however. require examination.

6. Section 14 of the Family Courts Act provides that "a decision given or a decree passed by a Family Court shall be appealable" to the High Court or the District Court as the case may be. Subsection (2) provides that "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 twenty‑five or less per month. The Act confers upon a Family Court exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule i.e., Dissolution of Marriage, Dower, Maintenance, Restitution of Conjugal rights, Custody of children, Guardianship and Jactitation of marriage. Section 7(1) provides that "every suit before a Family Court shall be instituted by the presentation of a plaint." Such suit comes to an end as provided by section 12 by a decree. Section 13 provides that "the Family Court shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register." It, therefore, appears clear that generally the Family Court has to pass a decree. There are, however, cases in which the proceedings must culminate only in a final decision and not a decree. Sections 15 and 16 provide patent examples of such cases. Sub section (2) of section 15 lays down that if any person to whom a Family Court bas issued summonses to appear and give evidence or to cause the production of any document before it, wilfully disobeys such summons, Family Court may take cognizance of such disobedience, and after giving such person an opportunity to explain, sentence him to a fine not exceeding one hundred rupees. Section 16 deals with contempt of Family Courts, and authorises it to forthwith try such person for such contempt and sentence him to a fine not exceeding rupees two hundred. A number of disputes may arise between the parties after the passing of the decrees in suits filed under section 7 of the Act. Subsection (3) of section 13 provides that "where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, the same shall, if the Court so directs, be recovered as arrears of land revenue." May be that objections may be filed by third parties to challenge the attachment and sale of property claimed by them during proceedings of recovery of decretal amount as arrears of land revenue. If the decree is executed by the Family Court under sub section (4) of section 13, such objections will have to be decided by the Court. This decision will not amount to a decree. Another instance of decision not amounting to a decree is provided by subsection 5 of section 13 where the Family Court has been given power to direct any money to be paid under a decree in such instalments as it deems fit. The decision in exercise of such power may not be to the liking of some party. It is, therefore, clear from the Act itself that it contemplates not only passing of decrees but final orders also which as 'decisions' may be appealable. This is complete answer to the argument of the learned counsel for the respondent that the word "decision" has been purposely used in section 14 to mean an interlocutory order.

7. I agree with the learned counsel for the respondent that the word "decision" must mean a State of facts judicially determined. I also agree with his argument that if the intention of the Legislature be to use the word "decision" as inclusive of interlocutory orders, the scope of section 14 cannot be narrowed down by reference to analogies from other enactments. W have to interpret the word 'decision' by reference to the provisions of the Act keeping in mind its object. It cannot be doubted, as held in Qudrat Ullah v. Iqbal Begum and Wajahat Ali v. Ghazala that the purpose of the Act is to shorten litigation. The preamble of the Act also provides that it is enforced for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith. With this end in view it has been specifically laid down that except for sections 1 and 11 of the Code of Civil Procedure, no other provision of that Code or any provision of the Evidence Act provides a procedure of its own which is as free from technicalities as possible. Before the Law Reforms Ordinance, 1972, was enforced, the Code of Civil Procedure read with West Pakistan Civil Courts Act, provided two appeals against a decree in cases where an appeal was competent before the District Judge. It also provided under section 115 for exercise of reviGional jurisdiction against orders which amount ed to case decided. Its section 104 and Order XLIII, rule 1 make some interlocutory orders appealable. After the enforcement of the Law Reforms Ordinance, second appeal is competent only in cases where the value of the property involved exceeds Rs. 2,000 but the appellate decrees of the District Judge even now are subject to the revisional jurisdiction of the High Court. By providing in section 17 of the Act that C.. P. C. shall not apply to pro ceedings before the Family Court, the guarantee of a dual appeal or of revisional jurisdiction against all orders amounting to cases decided has been taken away. Section 14 of the Family Courts Act provides only for one appeal. Its subsection (2) makes some decrees unappealable and final. These provisions read with the objective of the Act described in the preamble is an intrinsic aid to the interpretation of the word "decision". I agree wit the agreement of the learned counsel for the petitioner that it will create an anomaly if it is held that on the one hand the matters falling under subsec tion (2) of section 14 are not appealable and on the other hand all the inter locutory orders which may culminate in decrees governed by subsection (2) should be held to be open to appeal. The wider interpretation will defeat the object of expeditious disposal of the suits since such disposal will be obstructed like civil suits, if every order which amounts to a case decided within the meaning of section 115, C. P. C. is held to be appealable under section 14 of the Act. The expeditious disposal will be indefinitely obstructed by the process of numerous appeals against interim orders. In these cir cumstances it will be unreasonable to hold that the Legislature which bad whittled down the right of appeal against final decrees and had taken away, even the revisional jurisdiction which it is within the discretion of the revisional Court to exercise, would vest the litigants with a right of appeal against the same category of orders which under the Code of Civil Procedure are revis able. A similar question arose on the interpretation of section 15 of the West Pakistan Urban Rent Restriction Ordinance before the Supreme Court in Ibrahim v. Muhammad Hussain (1). A view which was contrary to the prevailing view was taken by their Lordships and it was held that an inter locutory order for deposit of rent passed under section 13(6) of the Ordinance was not appealable under its section 15.

8. The way the words "decree" and "decision" have been used in section 14, shows that the word "decision" should be read as ejusdem generis to the word "decree". If it is so read, it will point out to only such decrees j being appealable which finally determine the proceedings before the Family Court.

9. The learned counsel for the respondent relied upon Syed Shamim Ahmad v. Mst. Riaz Fatima (P L D 1975 Kar. 448) where it was held that the word "decision" includes interlocutory orders and consequently an order under section 12 of the Guardians and Wards Act is also appealable. He also relied upon Mst. Zaibun Nisa v. Muhammad Mazammil (P L D 1972 Kar. 410). It was also a case under the Guardians and Wards Act. In a case decided by me and reported in Mst. Parveen v. Kh. Muhammad Ashar (P L D 1975 Lah. 334) I did not agree with the decision of High Court of Sind & Baluchistan and preferred the view taken by the High Court of West Pakistan in Muhammad Ismail v. Fazal Ahmad (P L D 1969 Lah. 834) about the applicability of section 14 of the Family Courts Act to appeals and revisions against orders under the Guardians and Wards Act. I held that the order of the Guardian Judge passed under the Guardians and Wards Act was appealable under the provisions of that Act and not under section 14 of the above Act. These authorities are not, therefore, relevant.

10. Despite this finding I do not consider it a fit case for making a dec laration under Article 199 as the order of the Additional District Judge has removed a patent inequity. i have pointed out that the learned trial Court did not consider the admission made by the petitioner in a written‑ reply that the document in question bore his signature. For the purpose of permitting it to be filed and proved, it can be treated as ex facie genuine. It may be stated that the document already admitted in evidence as Exh. P. 1 proves the dower to amount to Rs. 1,50,000 out of which Rs. 1,00,000 was payable on demand and the balance was payable in the shape of ornaments. It further proves that the petitioner had promised to construct a house worth Rs. 1,50,000 for respondent No. 1 within five years. He had also made him self liable to pay to the respondent maintenance at the rate of Rs. 2,000 per month and in case of second marriage an increased maintenance at the rate of Rs. 4,000 per month. The document sought to be proved now is dated the 18th June 1968, in which there is a reference to a document dated the 17th June 1968. It also provides for the contract of the same amount of dower, of construction of a house within five years, of payment of maintenance at the rate of Rs. 2,0 0 per month and in case of second marriage an enhanced maintenance at the rate of Rs. 4,000 per month. There is practically no difference between the two documents. I, therefore, agree with the learned counsel for the respondent that the injustice done to respondent No. 1 by the order of the trial Judge has been removed. In Raunaq Alt v. Chief Settlement Commissioner it was held that the High Court has a discretion not to interfere even with an order passed absolutely without jurisdiction since the writ jurisdiction is equitable.

11. For the above reasons, I dismiss the writ petition but leave to parties to bear their own costs. S, Q. Petition dismissed.