P L D 1975 Karachi 448 (PLP)

"Section

17. Provisions of Evidence Act and Code of Civil Procedure not to apply.‑(1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872, and the Code of Civil Procedure, 1908, shall not apply to proceedings before any Family court. (2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Court." It was, therefore, argued by Munawar Abbas that the Family Court has not, by reason of the Family Courts Act, become a District Court but is only, for the purposes of the Guardians and Wards Act, to be deemed to be a District Court. Under section 25 of the Act the Court is required to follow the procedure prescribed in the Guardians and Wards Act for certain purposes and under section 17 the Civil Procedure Code is not to apply to proceedings before any Family Court, that is to say while a matter is pro ceeding before it and the Code is not excluded in so far as it might apply after the proceedings are over. On this line of reasoning he contends that section 17 of the Act which is the provision on account of which the decided cases have taken the view that a revision application is not maintainable in this Court against an appellate order, really has no application for it excludes the Civil Procedure Code only to "proceedings before any Family Court". He reads the words as meaning proceedings while they are before the Family Courts. He claims to draw support for his argument from a decision of a Full Bench of this Court reported in P L D 1972 Kar. 410 but it would be convenient, before I come to that case, to refer to those cases which have taken the view that a revision application does not lie to this Court.

4. The first of these cases is reported as Wajahat Ali v. Ghazala (P L D 1970 Lah. 641). In this case the order sought to be revised was an order passed by a Family Court exercising original jurisdiction, and not an appellate Court but, for my present purposes, that difference is not material. Nasim Hassan Shah, 1. after observing that the intention of the Legislature was to give effect to the recommendation of the Law Reforms Commission to provide a cheap and speedy remedy in Family matters proceeded to observe "This intention would be frustrated if every case was liable to be carried to the High Court under section 115, C. P. C. The object of this Act is to provide a speedy method of settling family disputes and if orders of interlocutory character are to be brought to the High Court, this object would be defeated. Under the provisions of the Act the Family Court is subordinate to the High Court if it is presided over by a person who is or has been District Judge or an Additional District Judge and the District Court in any other case, vide section 14 of the Family Courts Act. But merely because of this subordination to the High Court it does not automatically follow that the orders passed by such a Court become automatically revisable by the High Court. The revisional power is contained in section 115 of the C. P. C. However, by virtue of section 17 of the Act, the application of the provisions of the Code of Civil Procedure are excluded, except for certain limited purposes which are specified in the Act. Moreover, the Civil Procedure Code does not, as provided in section 4 override any special or local law. The provisions of section 17 of the Family Courts Act must, therefore, be given their full effect with the result that even if the Family Court is regarded as a Court subordinate to the High Court, the effect of section 17 of the Act is to exclude the orders of the Family Court from the operation of section 115, C. P. C. and the said provision of law is not available for obtaining revision of orders passed by the Family Courts."

5. It should be seen that although the learned Judge did refer to the intention of the Legislature his judgment is based upon section 17 to which he said full effect must be given.

6. The question then arose in Tehseen Akhtar v. Mahmood‑ul‑Hassan (P L D 1971 Lah. 875), in which the order sought to be revised was an appellate order. In this case also the same conclusion was reached and was based on section 17 of the Family Courts Act. It is worth noticing, however, that the learned Judge observed that, while deciding cases under the Family Courts Act, not only the District Judge or any other Family Court but even the High Court exercises jurisdiction under the Act and that, on that account also, the Civil Procedure Code did not apply.

7. The last of the cases on this point is a judgment of this Court reported as Farida Parveen v. Qadeeruddin Ahmad (P L D 1971 Kar. 118.). The argument was raised in that case that a District Court not having been defined in the West Pakistan Family Courts Act would be the same Court which is defined as such under the Civil Procedure Code and that, therefore, a revision would lie under section 115 of the Civil Procedure Code. How ever, the learned Judge, rejecting this argument, observed :‑ "Even though it is a Court subordinate to the High Court 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."

8. I now turn to examine the contention of Mr. Munawar Abbas based upon the Full Bench case to which I have earlier made reference. The order challenged in this case was of a Family Court where the Presiding Judge was not a District Judge and two questions arose, the first being whether an appeal lay at all and, if so, whether it lay to the District Court or to the High Court and the second being whether a revision lay to the High Court. The Full Bench held that an appeal lay to the District Court and that a revision was not maintainable.

9. I might notice in passing that by reason of this second answer Mr. Farooqi for the respondent argued that the question before me is conclud ed and that, being bound by the Full Bench, I must take the view that the revision application is not maintainable. The Full Bench decision of course is binding on me but I do not think that the point before me was really covered by the Full Bench ; what the Full Bench decided was that a revision does not lie to this Court from an order of the original Court and the question whether this Court may interfere with an appellate order under section 115 of the Civil Procedure Code was not before it. Strictly, therefore, the Full Bench has decided nothing which can be said to be a complete answer in the present case and which I would, therefore, be bound to follow.

10. Reliance was placed by Mr. Munawar Abbas upon the following passage in the Full Bench decision "The clear effect of these words is to exclude any provisions of the Guardians and Wards Act which may be contrary to section

14. Even otherwise section 25 merely prescribes that a Family Court shall be deemed to be a District Court, but a deeming clause creates a legal fiction and has to be construed strictly, therefore, as the Legislature has only enacted that the Family Court is deemed to be a District Court, it means that it is not a District Court, but that merely for the purposes specified in the section it would have the status and powers of a District Court. Additionally, the right of appeal against an order of a Court cannot possibly be described as the status and power of that Court. Therefore, I agree with Mr. Fakhruddin and Mr. A. K. Lakhani that the deeming provision in section 25 of the said Act cannot possibly lead to the conclusion that it confers on a litigant aggrieved by a judgment of a Family Court the right of appeal and revision contained in the Guardians and Wards Act."

11. Mr. Munawar Abbas argued that the deeming in section 25 is after all only a legal fiction and in any case requires the Family Courts, while dealing with matters specified in the Guardians and Wards Act to follow the procedure laid down in that Act. I entirely agree with him but am unable to see how that really advances the case of the Applicant.

12. The difficulty in the way of the applicant is not really contained in section 25 but in section 17 and really, therefore, is a question of con struing the expression "proceedings before any Family Court", which occur at the end of the first subsection of section

17. The argument of Mr. Munawar Abbas really amount to this : that the Civil Procedure Code will not apply so long only as the proceedings are pending before the Family Courts. This, however, is not I think a correct interpretation of the langu age nor, in my view, consistent with the obvious intention of the Legislature. In my opinion the words "before any Family Court" are descriptive of the word "proceedings" and do not refer to the time when the proceedings are pending. The phrase is, I think, adjectival and not adverbial.

13. I have, therefore, come to the conclusion, with respect, that al! the three cases which have taken the view that no revision of the present kind lies to this court were correctly decided and I see no reason whatever to disagree with them.

14. Mr. Munawar Abbas then pressed a further argument. According to him no appeal lay against the order at all and that, therefore, the appeal before the appellate Court was itself without jurisdiction and he urged that, if in these circumstances the High Court were to hold that it had no revisional jurisdiction over the appellate decision then it would be power less to set aside a decision without jurisdiction and that, on that account at least, I ought to hold that there is jurisdiction in this Court under section 115 of Civil Procedure Code. The short answer to this argument could of curse be that, if the legislation did intend that such decisions should be incapable of correction, there is an end of the matter and that we cannot on that account assume to ourselves a jurisdiction which we do not possess. I am, however, of the view that the argument itself on its own merits is fallacious.

15. In the first place even if no appeal lay to the District Judge there are other means of correction as for example by an appeal to the extra ordinary jurisdiction of this Court under Article 199 of the Constitution.

16. Under section 14 of the Family Courts Act an appeal lies not only against a decree passed by a family Court but also against "a decision given and clearly the order under section 12 of the Guardians and Wards Act was a decision given. Mr. Munawar Abbas, however, argued that this expression cannot be given so wide a meaning as to cover every order made by a Family Court for in that case even an order to summon a witness or to adjourn a case would be appealable. He pointed out that even under the Civil Procedure Code all orders of a civil Court are not appealable and, therefore, not all decisions of the Family Court should be appealable. I am quite unable to see how this argument can be accepted for the expression "a decision given is not in any manner qualified by some such words as final". Learned counsel however, drew my attention to an order of the Supreme Court refusing leave reported as Kandawalla & Co. v. Rashlduddin (1969 S C M R 721). The question in this case was whether all orders passed by a Rent Controller were appealable and their Lordships observed : "The words used in section 15 are 'an order', but learned counsel for the petitioner does find it possible to contend that these words are to be interpreted in their wide generality and he accepts that some qualification has to be added to these words for otherwise an order adjourning a case or summoning a witness would also be subject to appeal and learned counsel agrees that this could not be the intention. The High Court has in a Full Bench case reported as Muhammad Amin v. Jamshed Ali held that 'an order' in the section means any order which is covered by some provision in the Rent Restriction Ordinance. This appears prima facie to be a reasonable qualification to add to 'an order'."

17. It will be seen that although their Lordships did agree that all orders would not be appealable they held that only such orders will be appealable as are covered by some provisions of the Rent Restriction Ordinance. Apply ing that reasoning to the Family Courts Act such orders as are provided for in that Act must, I think, be hold appealable. Now under section 25 of the Family Courts Act the Court is deemed to be a District Court for the purposes of the Guardians and Wards Act and is required to follow the procedure prescribed in that Act for matters specified in it. An order of the kind which is now before me is clearly provided for under section 12 of the Guardians and Wards Act and, therefore, by reference I think in the Family Courts Act itself. I am quite unable to see, therefore, why such an order should not be appealable. Indeed in the Full Bench case to which I have earlier made reference, P L D 1972 Kar. 410, it was expressly so held "In the first place the argument that the applicant has no other remedy is based on a misreading of section 14 of the said Act; I have quoted the section earlier and it confers a right of appeal even against the decision of a Family Court, it is clear that the applicant could have filed an appeal in the District Court under clause (b) of subsection (1) of section 14 against the order by which he was aggrieved. Secondly, a revision is a remedy under the Civil Procedure Code. But as Civil Procedure Code, except sections 10 and 11 shall not apply to Family Courts the applicant cannot invoke section 115 of the Civil Procedure Code, and, that was also the view of my learned brother Muhammad Haleem, J. in Mst. Farida Parveen v. Qadeeruddin Siddiqui. Clearly an appeal lay to the District Court.

17. I have, therefore, come to the conclusion that the present revision application is not maintainable and in that view of the matter it is unneces sary for me to deal with the case on merits. I accordingly dismiss this application with costs. S. A. H. Application dismissed