1985 PLP 1542 (CLC)

This is an application under Article 9 of the Provisional Constitution Order, 1981, for an appropriate writ or a direction of the like nature for quashing order dated 11-10-1984 of Additional District Judge, Okara, dismissing an appeal preferred against judgment and decree dated 15-2-1984 passed in a Family suit for recovery of dower instituted by the plaintiff/respondent.

2. Mst. Zubaida Begum, respondent herein, instituted a suit for recovery of a sum of Rs.10,000 as her dower amount against her husband Muhammad Abdullah in the Family Court. Suit, after contest was decreed in her favour vide judgment dated 15-2-1984. An appeal under section 14 of the Family Courts Act, 1964, was filed before Additional District Judge, Okara. In the course of proceedings before the Court of appeal, respondent Mst. Zubaida Begum, presented a petition asking for the deposit of the decretal amount in Court. Additional District Judge, Okara, vide order dated 11-10-1984, accepted the application and, in consequence, the appellant before him was directed to furnish a bank guarantee within seven days of the making of order, failing which, his appeal was ordered to be dismissed. Respondent, reported non-compliance of the order dated 11-10-1984. On 22-10-1984, learned Additional District Judge, Okara, proceeded to dismiss the appeal. Against this order, the defendant, has come up in constitutional jurisdiction. Counsel for the parties have been heard. Learned counsel for the applicant, relying on the provisions of section 14 of the Family Courts Act, 1964, contended that the right of appeal, confered on an aggrieved litigant under section 14 of the aforesaid Act, was not dependent, on depsit of the decretal amount as a condition precedent to the entertainment and hearing of the appeal. Provisions of the Code of Civil Procedure pressed in service in support of the impugned orders, were clearly inapplicable to the case in hand. He argued, that the Code of Civil Procedure except its sections 10 and 11, in terms of section 17 of the Family Courts Act, 1964, were inapplicable and could not be introduced through a back door. Rule 8 of Order XLI of the Code, was also not attracted, as the appeal, did not arise from the execution of the money decree. Learned counsel, appearing for the respondent, found it difficult to defend the impugned orders and rightly so because the right of appeal conferred under section 14 of the Family Courts Act, 1964, was not hedged in by a prior deposit of the decretal amount as a condition precedent, to the entertainment or hearing of the appeal. Decree passed by a Family Court in a suit for recovery of dower is appealable except when the amount of dower did not exceed Rs.1,

000. I have looked in vain to search for any provision in the Family Courts Act warranting the action taken by the Court of appeal. Section 14 is a self-contained Code as regards right of appeal. In the absence of any provision in the aforesaid section curtailing the right of appeal as has been done by learned Additional District Judge, I am of the opinion that the impugned order directing the deposit of the decretal amount, before hearing the appeal on merits was wholly untenable. I regret to say that the learned Additional District Judge has read more in the Statute than what it contained and proceeding on this wrong assumption has denied a right of hearing to the appellant to have his case decided on merits. May be, if the appellant before him had applied for the stay of execution of the money decree, the Court could, while issuing a stay order, impose such a condition, but then, such a condition could not be imposed to the entertainment and hearing of appeal on merits. Impugned order, therefore, suffered from an error floating on the surface of the pro ceedings. I, therefore, have no hesitation in striking it down as illegal and to have been passed without lawful authority. The precedent relied upon, reported in 1984 S C M R 181 proceeds clearly on distinguishable facts and is not attracted to the case on hand.

3. In the result, writ petition is allowed, impugned orders dated 11-10-1984 and 22-10-1984 are set aside and declared to have been passed without lawful authority. Appeal, preferred by the appellant stands revived, to be heard and decided on merits in accordance with law. Parties are directed to appear before the learned Additional District Judge on 16-3-1985. No order as to costs is made. Copy of the order be sent to the Court of appeal. M.A.K. Case remanded.