2002 PLP 1850 (CLC)

Writ Petition No. 2781 of 2001, decided on 17th July, 2002. ‑‑‑‑Ss. 7, 14 & 2‑‑‑Constitution of Pakistan (1973), Art.199‑‑ Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Suit for recovery of dower and maintenance‑‑‑Appeal‑‑‑Family Court is not possessed with the power to review or reopen the case on merits‑‑‑ Provisions of S.14, West Pakistan Family Courts Act, 1964 give one right of appeal to the aggrieved party against the judgment and decree or decision passes] by the Family Court‑‑‑Petitioner who had filed Constitutional petition against order of the Family Court was possessed with remedy of appeal and could not invoke the Constitutional jurisdiction of High Court through bypassing the remedy of appeal‑‑‑Provisions of West Pakistan Family Courts Act, 1964 do not furnish a remedy of review to the superior Courts‑‑‑High Court enjoys Constitutional jurisdiction to look into the matters, which are passed without lawful authority and jurisdiction but orders or judgments passed within lawful authority and jurisdiction are not open to Constitutional jurisdiction. Taffazul H. Rizvi for Petitioner. Chequered history of the case under the instant writ petition is that the respondent No.2‑Mst. Imrana Shaheen filed a suit for recovery of dower and maintenance before the learned Judge, Family Court, Bannu while the petitioner filed suit for restitution of conjugal rights before the learned Judge. Family Court, Lahore. Suit for maintenance was decreed. The petitioner filed appeal against the decree for maintenance while wife filed appeal against the dismissal of dower suit. The learned Appellate Court dismissed the appeal of the husband against maintenance allowance and granted a partial decree to the respondent‑wife for recovery of dower to the extent of 25 Tolas gold ornaments. In writ petition the Honourable Judge. Peshawar High Court disposed of the writ petition with the direction that petitioner‑husband shall pay the decree of dower arid maintenance due up to date to the wife within two months from 10‑5‑2001 and the moment such payment is made, respondent/wife should loin husband as wife. This judgment was made on the consent of the parties. Later on, on an application made by the respondent the order. dated 10‑5‑2001 was recalled by the Peshawar High Court, Peshawar and a direction was given to the office to issue notices to respondents Nos. l and 2 for a‑ date to be fixed by the office for hearing on merits. Civil Miscellaneous was allowed. During the interregnum period of suit for restitution of conjugal rights was decreed in view of earlier judgment of Peshawar High Court. Peshawar and a conditional decree was passed. Suit of the petitioner‑plaintiff was decreed subject to payment of dower. The petitioner then gave an application to the learned Judge, Family Court for review of the judgment and decree, dated 4‑7‑2001. The learned Judge, Family Court dismissed the review petition observing that application is not maintainable as after pronouncement of judgment the Court is functus officio and has no power to review the order or judgment except correcting clerical mistake. This order is impugned in the instant writ petition.

2. Learned counsel for the petitioner submits that the facts and circumstances upon which the judgment and decree in suit for restitution of conjugal rights was passed, have been changed entirely. As the Judgment of Peshawar High Court, Peshawar stands recalled by the same learned Bench and fresh notices have been issued to the parties, therefore, the judgment and decree passed by the learned Family Court needs to he reviewed. And the Court has inherent power to take notice of legal position.

3. I am afraid I am not convinced by the arguments advanced by learned counsel for the petitioner. As far ac the learned Family Court is concerned a Judge Family Court and~ section 2 of the Act sits as Family Court under the Family Courts Act, 1964 and the provisions of this Act does not furnish a remedy of review to the superior Courts. High Court enjoys a Constitutional jurisdiction to look into the matters, which are passed without lawful authority and jurisdiction but orders or judgments passed within lawful authority and jurisdiction are not open to Constitutional jurisdiction. Even otherwise section 14 of the Family Courts Act gives one right of appeal to the aggrieved party against the judgment and decree or decision passed by the learned Judge, Family Court. The petitioner is possessed with remedy of appeal and he cannot invoke the Constitutional jurisdiction through bypassing the remedy of appeal. It is rightly observed by the learned Judge. Family Court that after passing the judgment and decree the Court is not possessed with the power to review or reopen the case on merits, therefore, finding no merits in the instant writ petition the same is dismissed. M.B.A./D‑40/L