P L D 1971 Karachi 118 (PLP)

Dates of hearing : 10th, 18tl and 19th December 1969. This judgment will dispose of Second Appeal No. 368/68 and Revision Application No. 189/68. The appeal and the revision have been filed against the judgment dated 13th May 1968 of the learned Additional District Judge, Karachi, by which he allowed Appeal No. 11/68 of the respondent against the judgment of the IV Civil Judge First Class, dated 25th November 1967 dismissing his Suit No. 2156/67 and at the same time allowed Appeal No. 3/68 against the judgment of the same Civil Judge by which the appellant's Suit No. 751/67 was decreed for Rs. 5,000 with proportionate costs.

2. The appeal and the revision came to be filed in the following circumstances. The appellant was married to the respondent on 3rd August 1963 at Karachi; herdeferred dower was fixed at Rs. 5,

000. She filed Suit No. 120/66 in the Family Court for the dissolution of her marriage with the respondent alleging cruelty therein. This suit was decreed on 3rd March 1967. A certified copy of the decree was sent to the appropriate Chairman under subsection (2) of section 21 of the West Pakistan Family Courts Act (XXXV of 1964) hereinafter referred to as the Act, and on receipt of the said copy on 28th March 1967 the Chairman issued notice to the respondent and constituted an Arbitration Council in accordance with subsection (4) of section 7 of the Muslim Family Laws Ordinance VIII of 1961 hereinafter referred to as the Ordinance. In the absence of conciliation between the parties the decree became effective as from 27th June 1967 on the expiry of 90 days from the date of its receipt. A certificate to this effect was issued on 28th June 1967 by the Chairman. Against the issuance of the certificate the respondent filed a revision before the Deputy Commissioner and Controlling Authority, Karachi, though no revision lay against it under the law. This revision was also dismissed on 16th September 1967.

3. The appellant thereupon filed Suit No. 751/67 for the recovery of Rs. 5,000 her deferred dower in the Family Court. During the pendency of this suit the respondent also filed Suit No. 2156/67 for a declaration that the decree passed in Suit No. 120/66 was ab initio illegal and a nullity and the appellant continued to be his legally-wedded wife. A prayer for injunction was also made to restrain Iqbal Mirza, her father, from interfering with his rights as her husband. This suit was also filed in the same Family Court. Appellant's Suit No. 751/67 was decreed by judgment dated 31st October 1967. The respondent's Suit No. 2156/67 was dismissed by a separate judgment dated 25th November 1967. The respondent then preferred Appeal No. 3/68 against the decree in Suit No. 751/67 and Appeal No. 11/68 against the dismissal of his Suit No. 2156/67. The two appeals were heard together and disposed of by one judgment dated 13th May 1968. In the result, the dismissal of the respondent's suit (No. 2156/67) was set aside and it was remanded for retrial while the decree in the appellant's suit was set aside and the suit was remanded to the Family Court for retrial with the direction that it should be taken up after Suit No. 2156/67 was decided. Being thus aggrieved the appellant has come up in appeal and in revision to challenge the order of remand and retrial of her suit and that of the respondent.

4. I now propose to deal with the appeal first. The Family Court had dismissed the respondent's Suit No. 2156/67 upon deciding in the negative the following preliminary issue :- "Whether the suit is maintainable according to law?" It held that the civil Court had no jurisdiction to declare the decree passed in Suit No. 120/66 as a nullity. Additionally, it also held that the suit was barred by res judicata. The appellate Court while dealing with this question held that the civil Court had jurisdiction to entertain the suit as the relief sought was declaratory in nature and that relief could not possibly be granted by a Family Court; it was, therefore, maintainable. Emphasis was also laid on the fact that the legality of the proceed ings before the Family Court and the validity of the result of those proceedings were questions raised in the suit itself, and that such questions could not be determined unless the parties had been given an opportunity to bring on record all their evidence. The appellate Court further held that the Family Court while dismissing the suit on a preliminary issue had ignored this aspect of the case which had a material bearing on the question whether the suit could be dismissed at that preliminary stage. The appellate Court thus set aside the dismissal and ordered retrial. No opinion was expressed on the merits of the judgment in Suit No. 751/67. The appellate Court merely took into consideration the fact that the claim of the appellant for her deferred dower could not be decreed so long the respondent's suit was still pending as the question of decreeing her claim would only arise after the decision of the respondent's suit against him. The appellate Court thus set aside the decree and remanded the suit for retrial as above.

5. The respondent did not appear before me and the appeal and the revision have been heard in his absence. The learned counsel for the appellant vehemently urged before me that the decree for dissolution of her marriage in Suit No. 120/66 had become effective in the absence of reconciliation on the expiry of 90 days from the date it was received by the appropriate Chairman under subsection (3) of section 7 of the Ordinance and that, therefore, Suit No. 2156/67 was not maintainable in view of section 5 of the said Act. Additionally reliance was also placed on subsection (3) of section 21 of the said Act, which also provides that the decree shall become effective in the absence of any reconciliati6n on the expiry of 90 days from the date the copy of the decree is sent to the Chairman. Section 9, C. P. C. was also invoked to give support to the above contention as in the opinion of the learned counsel section 5 of the Act had excepted the trial of such a suit in a civil Court.

6. The Family Court while dismissing the suit of the respondent had not indicated any provision of law which was against the maintainability of the suit. It had on the principle of res judicata dismissed the suit as, according to it, the matter was concluded by judgment in Suit No. 120/66. The appellate Court without any reference to section 5 and section 2(3) of the said Act held that the relief in such a suit cannot be given by the Family Court and that, therefore, a civil Court can entertain a suit of this nature.

7. The respondent in para. 11 of the plaint (Suit No. 2156/67) has admitted that a copy of the decree in Suit No. 120/66 was sent to the Chairman in compliance with subsection (2) of section 21 of the said Act. In para. 12 of the plaint it was stated that the Chairman had not complied with the requirements of subsection (4) of section 7 of the said Ordinance and despite that he had issued a certificate about the failure of reconciliation. The decree in Suit No. 120/66 was challenged on the ground that the allegations of cruelty were repelled in the order of Additional City Magistrate in proceedings under section 488, Cr. P. C. and that the Family Court should have given effect to that conclusion in the order which operated as res judicata and that, therefore, the finding of the Family Court on the plea of cruelty as alleged by the appellant was without any legal force. The action of the Chairman was challenged on the ground that the essential part of the procedure designed to ensure a compromise was not duly complied with before issuing the certificate. Exception was also taken of the fact that the copy of the decree was not sent within the time prescribed and finally it was alleged that the provisions of the Act had not been complied with and that the procedure adopted by the authorities was not in conformity with the fundamental principles of judicial procedure. It was on the above grounds that the declaration was sought with regard to his marital status as, according to him, the marriage still subsisted.

8. The respondent also filed along with his plaint a copy of the certificate issued by the Chairman and the order of the Deputy, Commissioner and Controlling Authority dated 16th September 1967 dismissing his revision. The question that now requires determination is whether Suit No. 2156/67 is maintainable in a civil Court. It is now well-settled that barring provisions apply only to orders passed with jurisdiction. It has, therefore, to be seen whether in the context of the pleas of the respondent in the suit, the decree in Suit No. 120/66 can be said to have been passed without jurisdiction or that the action of the Chairman in issuing the certificate with regard to the failure of reconciliation between the parties was also without jurisdiction. The only ground upon which the decree has been challenged is that the Family Court should have followed the order of the Additional City Magistrate in proceedings under section 488, Cr. P. C. between the same parties on the principle of res judicata. It may be stated here that for the plea of res judicata to prevail it is necessary that the previous judgment must be in a suit between the same parties, in which the matter had been directly and A substantially in issue. The plea of res judicata thus taken by the respondent can be disposed of on the short ground that the previous order was not in a suit but in proceedings under sec tion 488, Cr. P. C. and that the finding of fact arrived at on the evidence before the Additional City Magistrate in that proceeding could not, therefore, be evidence of the fact in the subsequent suit. Even if the previous order was in a suit still the plea of res judicata was not available to the respondent as at the time when Suit No. 120/66 was decided the provisions of Civil Procedure Code were not applicable to the proceedings before the Family Court. It is only by the West Pakistan Family Courts Amendment Act, 1967, which was promulgated on 21st October 1967, that section 17 of the said Act was amended and section 11, C. P. C. was made applicable to the proceedings before the Family Court. In view of the above, this plea in the suit was without any substance and it could not, therefore, be said that the decree was without jurisdiction if the Family Court had disregarded the conclusion of the A. C. M. Court.

9. The second ground in the suit pertains to the non compliance of subsection (4) of section 7 of the Ordinance. It has not been disclosed as to what was required to be done had not been done. However, the respondent had before the Deputy Commissioner and Controlling Authority contended that "the proceedings of the Chairman in this matter were irregular and notices were not given to him properly and on correct addresses." The grievance, therefore, appears to be that he was not duly served with notice. In the order of the said Authority a reference is also made to the note of the process-server about the refusal to accept the notice. There is also a reference to the order of the Chairman of the Arbitration Council in which it has been stated that the respondent had not attended in person before the "Family Court" as he was reported to be in Saudi Arabia. It, therefore, follows that when the notices were sent to the respondent on his usual address he was not available to personally participate in the conciliation proceedings as he was out of Pakistan. The refusal may have been also in that context. The Arbitration Council though did make an attempt to secure the attendance of the respondent yet the attempt was not successful either because the respondent was out of Pakistan or was evading service. In the absence of reconciliation between the parties the decree for the dissolution of their marriage became effective on the expiry of 90 days in view of subsection (3) of g section 7 of the Ordinance and subsection (3) of section 21 of the Act. It is only if there has been a reconciliation within the above period that the decree loses its effectiveness. It cannot therefore be said that the Chairman had not complied with the requirement of subsection (4) of section 7 of the Ordinance. Moreover, neither section 7 of the Ordinance nor section 21 of the Act no the proviso to rule 6 of the West Pakistan Rules under th Muslim Laws Ordinance, 1961, provide a consequence in case of want of service of notice on one of the parties. Having regard to the above provisions the effectiveness of the decree after the expiry of 90 days is absolute. There is nothing in the Ordinance or the Act to make it ineffective in an event where an attempt is made but no service' can be effected for the purpose of recon ciliation. The certificate thus issued by the Chairman cannot be said to be in disregard of subsection (4) of section 7 of the Ordinance His action was, therefore, within the bounds of law.

10. The third ground pertains to the delay in sending a ,copy of the decree of Suit No. 120/66 to the Chairman. In subsection (2) of section 21 of the Act, the requirement is that it should be sent within 7 days of the passing of the decree. It has not been stated in the plaint as to the number of days that had elapsed before it was sent to the Chairman. However, the certificate of the Chairman itself indicates that the decree was notified to his office by the Family Court on 28th March 1967. This obviously shows that the decree was not sent within 7 days as required by subsection (2) of section 21 of the said Act. However, subsection (2) of section 21 of the Act provides that "the Court shall send by registered post within 7 days of passing of such decree, a certified copy of the same to the appropriate Chairman referred to in section 7 of the Muslim Family Laws Ordinance, 1961 and upon receipt of such copy, the Chairman shall proceed as if he had received an intimation of talaq required to be given under the said Ordinance." Section 21 of the Act read as a whole makes it clear that the intention of the Legislature appears to be that the copy of such a decree should be sent invariably so that the provision of subsection (4) of section 7 of the Ordinance should be complied with. The word "shall" prefixed before the words "send by registered posy" makes that intention clear and in my view it is mandatory in that context. However, the requirement relative to the time within which it has to be sent is directory, for no consequence is provided if the copy of such a decree is not sent within 7 days (vide the case of Chief Commissioner, Karachi v. Jamil Ahmad and another (P L D 1961 S C 145). Therefore, nothing will turn on the delay in sending the certified copy, for under subsection (3) of section 7 of the Ordinance, it is in fact the date on which the copy is received by the Chairman that will be material in computing the period of 90 days. Even under subsection (3) of section 21 of the Act it is the date on which the copy is sent to the Chairman. This provision has to be read subject to subsection (4) of section 7 of the Ordinance as this provision has been made applicable to a decree for the dissolution of marriage by subsection (1) of section 21 of the Act. It cannot, therefore, be said that the decree becomes ineffective if its copy had not been sent within 7 days, for the date that is relevant is that on which it is received and 90 days have to be computed from that date.

11. The last plea in the plaint is couched in general words and appears to refer to the above contentions which have been disposed of. There was, therefore, no indication in the plaint as to how the decree had been passed without jurisdiction or the action of the Chairman in issuing the certificate was beyond the scope of his power. The appellate Court did not go into these questions but merely held that the questions raised in the suit could not be determined without allowing the parties to bring on record all their evidence. The appellate Court should have seen whether in the context of the pleas raised in the plaint it could be said that the decree for dissolution of marriage was passed without jurisdiction or the action of the Chairman in issuing the certificate was also beyond his powers. This was, however, not done.

12. The respondent in his Suit No. 2156/67 has questioned the finding of the Family Court in Suit No. 120/66 relating to the plea of cruelty taken therein. Plainly the issue is one which has already been decided in Suit No. 120/66. There cannot be a question of any declaration with regard to the legality of the decree on that ground. The civil Court can, therefore, have no jurisdiction to entertain a suit merely because the suit has been framed in such a manner as to claim the relief in the form of a declaration. In effect the same issue will have to be re-tried between the parties.

13. The upshot of the above discussion is that the contention of the learned counsel for the appellant must prevail as the suit of the respondent was not maintainable. I would, therefore, set aside the judgment of the appellate Court dated 13th May 1908 in Civil Appeal No. 11/68 and uphold the judgment of the trial Court. Suit No. 2156/67 stands dismissed. The appeal is thus allowed with no order as to costs.

14. I now propose to deal with Civil Revision Application No. 189/68. The appellant had filed it against the same judgment of the appellate Court in Civil Appeal No. 3/68. I asked the learned counsel for the appellant how this revision was main tainable as there is no provision for it in the West Pakistan Family Courts Act, 1964. He was unable to satisfy me on this point. There is only one appeal provided to the District Court against the judgment of the Family Court under section 14 of the Act. There is no further provision of any appeal or revision. The intention, therefore, appears to be that the decision of the District Court must assume finality. The question therefore now is whether section 115, C. P. C. will be applicable to the decision of District Court on appeal. The words "District Court" have not been defined in the Act. However, subsection (2) of section 2 of the Act provides that the words and expressions used in the Act but not defined in it shall have the same meanings respectively assigned to them in the Code of Civil Procedure, 1908. Sub section (4) of section 2, C. P. C. defines "District Court" as a principal civil Court of original jurisdiction. Section 3, C. P. C. makes it subordinate to the High Court. Even though it is a Court subordinate to the High Court yet its decision on appeal under section 14 of the said Act cannot be said to be a case decided within the meaning of section 115, C. P. C. as the application of the Civil Procedure Code has been excluded by section 17 of the said Act. It is, therefore, plain that there is no scope for a revision to the High Court against the appellate judgment of the District Court under section 14 of the said Act. In the unreported case of Abdul Hakim v. Abida Begum (Second Appeal No. 334/69) Qadeeruddin Ahmad J., as he then was, also observed as an obiter that no revision lies to the High Court. The above discussion is in accord with the obiter in the unreported case. In the result I am of the view that this revision application is not maintainable.

15. However, this is not the end of the matter. There is Article 102 of the Constitution which reads : "Each High Court shall supervise and control all other Courts that are subordinate to it". It was held in the case of Mst. Gaman v. Taj Din (P L D 1968 Lah. 987) that a Family Court is a Court subordinate to the High Court and that on that premise Karam Elahi Chauhan, J. ordered the transfer of a case pending in one Family Court to another Family Court by invoking the above Article of the Constitution. "District Court" has been statutorily defined as the principal civil Court of original jurisdiction and is subordinate to the High Court. An appeal lies to it from the judgment of the Family Court. Even otherwise it is also a Family Court under the Act. I respectfully agree with the above observation of Karam Elahi Chauhan, J. The question now is whether the High Court can exercise judicial function by correcting a judgment of the District Court passed on appeal by invoking Article 102 of the Con stitution. The words "supervise and control" have been used in Article 102 of the Constitution. These words have not been defined in Article 242 of the Constitution; therefore, they have to be interpreted in their literal sense. According to Oxford English Dictionary, Volume 10 at page 196, the word "supervise" means "to oversee, have the oversight of, superintend the execu tion or performance of a thing, the movements or a work of a person". Similarly, in Black's Law Dictionary, Volume IV at page 1607 the meaning assigned to it is "to have general oversight over, to superintend or to inspect". The word "control", according to Oxford English Dictionary, Volume 2 at page 927, means "to overrule a judgment or sentence", as understood in the legal parlance. Again in Black's Law Dictionary, Volume IV at page 399, it means "power or authority to manage, direct, superintend, restrict, regulate, govern, administer or oversee". These words from their meanings convey the same sense as the word "superintendence" in section 107 of the Government of India Act, 1915 or section 224 of the Government of India Act, 1935, or Article 227 of the Indian Constitution. There is consensus of judicial opinion in India that the word "superintendence" includes both judicial as well as administrative) functions. Karam Elahi Chauhan, J. after giving weighty consideration to this view also reached the same conclusion in the above case. There is, therefore, authority to conclude that the words "supervise and control" in Article 102 also empower the High Court to exercise judicial control over the decisions of the subordinate Courts. The limits within which it has to be exercised is a different question.

16. In Aswini Kumar Pramanik v. Dominion of India (A I R 1952 Cal. 251), it was held that interference should be resorted to in rare cases where real injustice would be done if the Court could not interfere. In Sm. Subodhbala Biswas v. State of West Bengal (A I R 1953 Cal. 702) it was held tjiat Article 227 was intended to authorise the High Court to see that the Courts which cannot be controlled under section 115, C. P. C. are kept in their jurisdiction in accrodance with the provisions of the laws they administer. If, therefore, the Court did not exceed its jurisdiction and also does not depart from the principle that it is enjoined to follow by the statute or other law concerned, there can be no occasion for interference under Article 227 of the Constitution. In Tirathsingh Narainsingh v. Bachitar Singh and others (A I R 1954 Pepsu 118) it was further clarified that the High Court cannot go into the merits of the case and hold that the decision of the Court was not justified on the evidence before it. In Motilal v. The State (A I R 1952 All. 963) after reviewing the authorities it was held that the power under Article 227 of the Constitution is meant only to see whether a Court has acted within its bounds or not.

17. It is, therefore, clear that the judicial control thus is, limited to the correction of exercise of jurisdiction or non-compli ance of any statutory provision or the concerned law. It does not extend to the interference on merits if otherwise the subordi nate Court has acted within its bounds.

18. In the instant case the appellate Court had not considered the judgment of the Family Court; it had merely sex it aside and ordered its retrial on the consideration that the declaratory suit of the respondent was still subjudice and until there was a decision against him the decree for deferred dower could not be passed. There is, therefore, a failure to exercise jurisdiction and in view of my judgment in the appeal that the respondent's suit was not maintainable it is therefore necessary, that the appeal of the appellant before the appellate Court should be decided on merits. Since this relief cannot be had ill the absence of any provision in the Act, I would therefore invoke Article 102 of the Constitution and setaside the appellate judgment in Civil Appeal No. 3/68 and direct the appellate Court to hear the appeal on merits against the judgment in Suit No. 751/67. 1t is ordered accordingly.

19. On the conclusion of the arguments by the learned counsel for the appellant on 19th December 1969 I had orally announced the above order allowing the appeal. The above are the reasons for it. I had dismissed the revision application because the learned counsel for the appellant was unable to convince me that it was maintainable under the law. However, while writing the judgment I reconsidered the issue in the context of Article 102 of the Constitution and was inclined to invoke this Article for correcting the jurisdictional error. I, therefore, issued notice to the learned counsel for the appellant to find out what he had to say. I have heard him and on reconsideration I have invoked Article 102 of the Constitution to correct the jurisdictional error. The above are the reasons for it. S. A. H. Order accordingly.