1980 PLP 787 (CLC)

(b) Constitution of Pakistan (1973)

Art. 203 read with Civil Procedure Code (V of 1908), Ss. 100 & 115-Second appeal-Revision-View taken by lower Court neither perverse nor such as no Court could have arrived at such conclusion-Such question, held, could not be opened by aggrieved party even in second appeal or revision much less under Art. 203, 4 Constitution of Pakistan (1973,). S. Akhtar Ali for Appellant. Sheikh Wazir for Legal Representative of Respondent No.

1. Date of hearing : 14th November, 1979 On appeal by the respondents the District Court modified the order of the Family Court to the extent that the decree for possession of land measuring 5 kanals and 7 marlas, alleged to have been given as consideration for dower to the petitioner (wife) by Haji Akbar Khan (father-in-law), was set aside and the price of ten tolas of gold which had been decreed at Rs. 14,000 was reduced to Rs. 6,

500. By this petition the wife has invoked the "supervisory jurisdiction" of this Court under Article 203 of the Constitution and the learned counsel appearing for the petitioner has argued that the District Court, which was the Court of appeal, has misapplied the law which action warrants interference of this Court in exercise of its supervisory jurisdiction.

2. It was contended that the learned District Court has wrongly ignored to act upon the document written by the father-in-law in favour of the wife by holding it to be inadmissible in evidence inasmuch as the rules of the Evidence Act, 1872, and the technicalities of the Registration Act are not applicable before the Family Court or for that matter before the Appellate Court which are tribunals of special jurisdiction. The finding that the document was forged one is also challenged.

3. The first question, on which the learned counsel for the petitioner was asked to satisfy this Court, is whether in exercise of jurisdiction under Article 203 of the Constitution the decision on merits and the exposition of law for arriving at that decision can be interfered with. The learned counsel first of all relied on the case of Karim Bokhsh v. Mst. Mubarik Jan (P L D 1970 Pesh. 169). This case in fact goes against the petitioner's stand inasmuch as it was laid down therein that Article 102 of 1962 Constitution which corresponds to Article 203 of the present Constitution does not provide for any relief which has to be granted to a party. It was observed in this case that the power of supervision and control is for making and keeping the administration of justice pure and not to help any particular party. In substance the conclusion in that case which the learned Judges arrived at was that in exercise of its power under the said provisions giving it supervisory jurisdiction, the High Court cannot decide a matter as a Court of appeal or as a Court of revision nor can it act as a Court of extraordinary jurisdiction empowered to issue writs. I fail to understand how this case, which supports the respondents before me, is of any help to the petitioner. Reliance was then placed on the case of Mst. Gaman v. Taj Din (P L D 1968 Lah. 987). This case too is of no help inasmuch as the matter involved therein was of public importance and the High Court was to decide whether the Family Court and the Court of appeal are "Courts" or "Tribunals" and whether a case pending with one Judge could be transferred to another Judge. The High Court held that the Family Courts and the Appellate Courts are the Courts and, therefore, in exercise of supervisory jurisdiction under Article 102 of 1962 Constitution a case could be transferred from one Court to another. In this case the merits of the decision taken by the Family Court or the District Court were not in question at all; nor the Court was seized of the question whether a decision made by the District Court in appeal from an order of the Family Court could be interfered with on questions of fact or questions of law by the High Court in exercise of its supervi sory jurisdiction. The case of Muhammad Siddiq v. Syed Ali Shah (P L D 1976 Lah. 293) was also relied upon. In this case the High Court invoked its supervisory jurisdiction under Article 203 of the Constitution when the order passed by the lower Court was neither a judgment nor an order from legal standpoint. This was not a case in which the Court had interfered with the finding of fact or of law of the Family Court or of the District Court sitting in appeal. This case too is, therefore, of no aid to the petitioner who wants this Court to interfere with the finding of the Court of appeal on points of fact and points of law. The last case relied upon by the learned counsel for the petitioner is S. Zahid Ali v. Mst. Mubarik Bano (P L D 1976 Kar, 68). This case too decided a question of public importance, i.e. whether the High Court has power to transfer a family suit from one Family Court to another. Such a power is obviously an administrative-cum judicial power and Article 203 of the Constitution could be invoked by the High Court. In this case also there was no challenge either to the finding of fact or to the finding of law involved in a decided case.

4. In the present case the petitioner challenges firstly the finding of fact that the document relied upon by her was held to be forged and not proved and secondly that it was held to be inadmissible in evidence. ,r These two findings can be challenged only in appeal and perhaps in revision but not in exercise of the supervisory jurisdiction under Article 203 of the Constitution. The intention of the law-maker with regard to the family dispute was that there should be a finality to the Judgments and orders at the stage of the District Court if the Family Court is subordinate to it. If every question of fact and law is re-opened by the High Court then the very purpose of the Legislature shall be defeated. In any case the view taken by the District Court is neither perverse nor such that no Court could have arrived at that conclusion. Even in second appeal or revision such a question could not be opened by the aggrieved party. 5. 1n the result 1 hold that this Court cannot, in exercise of its supervisory jurisdiction under Article 203, interfere with the order of the District Court which has decided the appeal on merits after discussing the points of fact and points of law and after giving decision thereon.

6. The petition is dismissed with costs. S. A. S. Petition dismissed.