P L D 1976 Lahore 293 (PLP)

(5) Civil Miscellaneous 2373/C/1975 ; and (6) Civil Miscellaneous 2374/C/1975.

2. The cases mentioned at serial Nos. 1, 2, 3 and 4 arise out of regular civil suits which were to be regulated by the Code of Civil Procedure whereas the cases mentioned at serial Nos. 5 and 6 were suits under the West Pakistan Family Courts Act XXXV of 1964. The nature of the suits together with the orders which were passed therein respectively is as follows: These cases came to the notice of the High Court and it transpired that Mr. Amanullah Malik, the learned Civil judge, relinquished charge of his duty on the 8th April 1975 on account of termination of his services without writing the detailed order in each of these cases as was contemplated in the short order written by him mentioned above. I, in my suo motu jurisdic tion under section 115 of the C. P. C. took notice of the civil suits mentioned at serial Nos. 1, 2, 3 and 4 above and directed that records .be called for and notices be issued to the parties to show cause as to why the short order reproduced above be jqot quashed and why the respective cases should not remanded to the learned Civil Judge for deciding the same in accordance with law. The learned counsel for the parties nave appeared and they agree that in the absence of the detailed order the short orders cannot be said to have disposed of the suits. I have also considered this matter on legal plane. It is well-settled that when a Civil Judge decides a case without giving reasons in the judgment, he acts with material illegality and irregularity in the exercise of jurisdiction vested in him by law. See Muhammad Arif and others, v. Muhammad Ishaq and another A I R 1937 Lah.

352. In Mollah Ejahar Ali v. Government of East Pakistan and others P L D 19 7 0 S C 173, where the order was "the application is rejected as there is no substance in it", the supreme Court observed that : "There is no doubt that the High Court's order which is unfortunately purfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its context. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying, `there is considerable substance in the petition which is accepted', should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and, reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the Law Courts with the incidental hardships and expenses involved. do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its, mind to the resolution of the issues involved for their proper adjudi cation. The ultimate result may be reached by a laborious effort but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with its painful results, that justice has neither been done nor seems to have been done is inescapable. When the order of a lower Court contains no reasons, the appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision has been reached." The same is the law contained in Order XX read with section 33 of the Code of Civil Procedure. In the face of the aforesaid legal position, I hold that the learned Civil Judge acted with material irregularity and illegality in the exercise of his jurisdiction by not writing the detailed reasons with reference to which he passed the short orders. As a matter of fact, even if the short order is a judgment or a part of a judgment, then it is incomplete .as its corresponding part, which was to be separately written, was not written at all. The short orders or judgments on tire peculiar facts and circumstances of these cases are thus not well-sustained and are a nullity. Hold in accordingly I set aside the short orders passed in each of the aforesaid cases and remand them to the learned Senior Civil Judge for deciding them himself or entrusting the same to a Court of competent jurisdiction, in accordance with law after issuing notices to the parties concerned. From the record it appears that the evidence in the cases stands concluded and now only the arguments are to be heard and judgment is to be pronounced. The learned trial Court can take notice of the stage at which the respective case was and proceed onward from the same. There shall be no order as to costs.

3. As regards the cases mentioned at serial Nos. 5 and 6, they pertain to the Family Courts Acts XXXV of 1964. In section 2(2) of the West Pakistan Family Courts Act, 1964 (Act XXXV of 1960, it is laid down, "words and expressions used in this Act but not herein defined, shall have the meanings respectively assigned to them in the Code of Civil Procedure, 1908". In section 12(2), it is written, "If such compromise or reconciliation is not possible, the Family Court shall announce its judgment and give a decree." In section 13(1), it is written 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." In section 2(1)(e), it is stated that " `prescribed' means "prescribed by rules made under this Act." Rule 14 of the West Pakistan Family Courts Rules 1965, is relevant in this context. It reads as follows "14. (1) Every judgment or order shall be written by the presiding Judge or from the dictation of such Judge in the language of the Court, or in English and shall be dated and signed by the Judge in open Court at the time of pronouncing it. (2) Judgments and orders which are appealable shall contain the point or points for determination of the decision thereon and the reasons in brief for the decision." ,Attention is also invited to section 14 of the Act, which reads as follows "14. (1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable. (a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge ; and (b) to the District Court, in any other case., (2) 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 Muslims Marriages Act, 1939 ; (b) for dower not exceeding rupees one thousand (e) for maintenance of rupees twenty-five or less per month."

4. The two cases in hand is examined in the light of the above law were appealable and from that point of view, the learned Judge Family Court was bound to give reasons for his judgment and order. Even otherwise if the words "judgment" and "decree" are to be given the same meanings as are given in the Code of Civil Procedure, still the Judge was bound to give reasons in support of his order. In the Civil Procedure Code, the word "decree" is defined in section 2(2) so as to mean, (so far as is necessary to reproduce the same here) "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit . . . ." The word "Judgment is defined in section 2(9) as "the statement given by the Judge of the grounds of a decree or order." The short orders or judgments examined in the above context are neither judgments nor orders from a legal stand-point and the High Court can, by exercising its powers under Article 203 of the Constitution, declare them to be nullity and direct the learned Judge Family Court to pass proper orders in the cases in accordance with law. In exercise of my suo motu jurisdiction under Articles 203 of the Constitution of the Islamic Republic of Pakistan 1973 I directed that the records of these cases should be called for and issued notice to the parties to show cause as to why the short order passed therein would not be set aside and the respective case be not remanded to the learned Judge Family Court concerned for fresh disposal in accordance with law. That the High Court has judicial control over the subordinate Courts under Article 203 of the Constitution, is well laid down in Mst. Gaman v. Taj Din P L D 1968 Lah. 987, Abdul Rehman v. Mst. Chaman Ara P L D 1972 Kar. 164, Mst. Farida Parwin v. Qadeeruddin Ahmad Siddlqui P L D 1971 Kar. 118 and Karim Bakhsh v. Mst. Mubarik Jan P L D 1970 Pesh.

169. By exercising the aforesaid jurisdiction High Court can direct the Family Court to do that which it was bound by law to do. It Invoking my aforesaid jurisdiction I set aside the short orders passed in these cases also and remand them to the Judge Family Court concerned, (who may have succeeded the earlier Judge)-for fresh decision in accordance with law onward from the stage where the illegality took place. There shall be no order as to costs. S. A. H. Order set aside. Cases remanded.