2001 PLP 567 (CLC)

3. Learned counsel for the petitioner contended that in spite of the fact that the petitioner failed to file the written statement his defence could not be struck off and the petitioner has the right to produce his evidence in the Court. He relies on case of Bashir Ahmad v. Mst. Zaubida Bibi and another 1990 ALD

180. Respondents Nos.2 to 6 were served through publication in the Daily Nawa‑i‑Waqt but in spite of that they failed to appear in the Court, therefore, they were proceeded against ex parte.

4. I have heard the arguments of the learned counsel for the petitioner and perused the record.

5. There is no cavil with the fact that provisions‑ of C.P.C. are not applicable to the proceedings before the Family Court in view of the bar contained in section 17 of the West Pakistan Family Court, Act, which is reproduced as under:‑‑

17. Provisions of Evidence Act and Code of Civil Procedure not to apply.‑‑‑ (1) Save as otherwise expressly provided by or under this . Act, the provisions of the Evidence Act, 1872, and the Code of Civil Procedure, 1908 (except sections 10 and 11) shall not apply to proceedings before any Family Court. (2) Sections 8 to 11 of the Oaths Act, 1873 shall apply to all proceedings before the Family Courts." Neither this Act nor rule framed under the West Pakistan Family Court Act has authorized the Family Court to struck off the defence of the defendant on his non‑filing of the written statement. It is spelt out from section 10 of Act that:‑‑ (1) When the written statement is filed, the Court shall fix an early date for a pre‑trial hearing of the case. (2) On the date so fixed, the Curt shall examine the plaint, the written statement (if any) and the pr cis of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties, and their counsel. (3) At the pre‑trial the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible. (4) If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording evidence."

6. This section has nowhere provided that in case of failure by the defendant to file written statement his defence would be struck off. It is manifestly clear that the Court shall examine the plaint, written statement if any, and evidence, it would mean that the filing of written statement in the Family Court is not essential. Subsection (3) of section 10 has contemplated that the Court shall make an attempt to effect compromise or reconciliation between the parties arid subsection (4) was further provided that if no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording evidence. The word, if any, in subsection (2) of section 10 signifies that even if there is no written statement reconciliation proceedings must be held and evidence should be recorded. In case of Muhammad Ashraf v. Nasreen Begum PLD 1989 Lah. 69 it was held by this Court that the Family Court could not without recording the evidence decree the suit who has been proceeded against ex parte. This argument is further strengthened by the dictum laid down in case of Bashir Ahmed (supra).

7. For the foregoing reasons and in agreeing with the principle laid down in the cases referred to above, this writ petition is accepted and the impugned orders dated 31‑3‑1999 and 26‑7‑1999 passed by Judge, Family Court/respondent No.1 are declared to be without lawful authority and of no legal effect with the result that the Family Court would proceed further after the stage of filing the written statement i.e. at the pre‑trial reconciliation stage. H.B.T./M‑441/L Petition accepted.