2016 PLP 1604 (CLC)

ATIR MAHMOOD, J.

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the legality of order dated 21.05.2014 passed by learned Judge Family Court, Lahore whereby the application of respondent No.1 (the respondent) seeking permission to produce documents and witnesses was allowed. The said application was filed by the respondent in her suit for recovery of dower amount and maintenance allowance after submission of contesting written statement by the petitioner-defendant and framing of issues by the family court when the suit was fixed for plaintiff's evidence.

2. Learned counsel for the petitioner inter alia contends that the leaned family court has failed to take note of the fact that the application for producing documents and witnesses was filed by the respondent at a belated stage without offering any reason or justification; that the application was aimed at to produce additional evidence on issues, the onus probandi of which is laid on the respondent but this aspect of the case has totally been ignored by learned court below; that learned trial court incorrectly interpreted and applied the provisions of Section 7(2) of the Family Courts Act, 1964 (the Act); that the application of the respondent was hit by Section 11(2) of the Act; that the impugned order has been passed arbitrarily without appreciating the law on the subject; that the learned court below has exercised the jurisdiction illegally while committing material irregularities, therefore, this writ petition be allowed, the impugned order be set aside and the application of the respondent for producing documents and witnesses be dismissed.

3. On the other hand, learned counsel for the respondent has vehemently opposed this writ petition and fully supported the impugned order mainly on the ground that the application has been filed at a stage when no evidence of any party was recorded and the petitioner has every right of rebuttal and cross-examination upon the witnesses intended to be produced by the respondent.

4. Arguments heard. Record perused.

5. Learned counsel for the petitioner has, stressed more on Section 7(2) of the Act which is reproduced below: "7(2) The plaint shall contain all material facts relating to the dispute and shall contain a Schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose: Provided further that the parties may, with the permission of the Court, call any witness at any later stage, if the Court considers such evidence expedient in the interest of justice: Provided that a plaint for dissolution of marriage may contain all claims relating to dowry, maintenance, dower, personal property and belongings of wife, custody of children and visitation rights of parents to meet their children." (Emphasis supplied) Bare reading of above provision of law reveals that the plaintiff will state material facts in the plaint and furnish therewith a schedule of witnesses giving their names and addresses. At the same time, the first proviso of the said Section reads that the court may grant permission for production of any witness at any later stage if the court considers it necessary to reach a just and fair conclusion. Admittedly, the application for production of documents and witnesses was filed by the respondent when the case was fixed for respondent-plaintiff's evidence after framing of issues, as such, the application was at a preliminary stage of trial. Perusal of application filed by the respondent reveals that the occasion to file the application arose when the petitioner denied the existence of a valid marriage and asserted that it was a paper marriage. The documents and witnesses which were sought to be produced in evidence, prima facie, appear to be necessary for just and fair adjudication of the matter. No doubt, the onus probandi to prove the issue mentioned in the application lies on the petitioner and such documents can be confronted to the petitioner or his witnesses when they appear in the witness box and if the permission to produce such documents is declined at this stage, the respondent may not be in a position to confront all these documents which include photographs, video cassettes and audio cassettes of the marriage ceremony. It was confronted to learned counsel for the petitioner whether the petitioner is ready to give statement that if the said documents are confronted to the petitioner or his witnesses at the time of his evidence, he will not object to it, the answer was in negative. I am of the considered opinion that if the respondent is not allowed to produce the documentary as well as oral evidence, there will be multiplicity of litigation as well. Learned family court while allowing application of the respondent has not committed any illegality and the jurisdiction has rightly been exercised by the court. It is further observed that the petitioner-defendant has every right to rebut the evidence intended to be produced by the plaintiff and he has also right of cross-examination upon the plaintiff's witnesses. In my view, it is the right of each party to have a. fair trial; therefore, allowing the application by the trial court is appropriate and the learned family court has exercised its jurisdiction vested in Section 7(2) of the Act fairly and justly and the same will not cause any prejudice to the rights of the petitioner-defendant.

6. The other contention of learned counsel for the petitioner is that the impugned order is violative of Section 11(2) of the Act which makes necessary for a party to intimate the court within three days of framing of issues. In my view, the said provision deals with summoning of witnesses whereby the party has been bound to give list of witnesses within three, days of framing of issues. However, it does not debar the court to grant permission to a party to produce additional evidence. Section 7(2) of the Act has overriding effect in this regard as it has clearly been stated in first proviso of Section 7(2) that the court at any later stage may grant permission for production of witnesses. Therefore, the contention of learned counsel for the petitioner lacks force. The order impugned is based on convincing reasons. Learned counsel for the petitioner has not been able to point out any illegality or irregularity therein calling for interference by this Court in its constitutional jurisdiction.

7. For the aforementioned reasons, this writ petition has no merit. The same is dismissed. ZC/M-291/L Petition dismissed.