2016 PLP 152 (CLCN)

MUHAMMAD IQBAL KALHORO, J.

Petitioner is the plaintiff of Family Suit No.1525/2015 filed against the respondent No.1 for recovery of dowry articles and maintenance. The said suit is pending in the court of 1st Civil and Family Judge Karachi South.

2. In the trial, the petitioner filed an application under section 7(2) of West Pakistan Family Courts Act, 1964 (hereinafter referred to as 1964 Act) seeking examination of witnesses, whose names' list she could not file along with the plaint in terms of said provision of law. The application was accompanied with the list of 08 witnesses. Learned trial court after hearing the parties dismissed it vide impugned order dated 17.03.2016.

3. Mr. Badar Alam learned counsel for the petitioner has argued that evidence of the witnesses proposed to be examined is essential and necessary to resolve the controversy between the parties; that impugned order is opposed to the scheme of law, which provides for decisions of the cases on merits rather than on technicalities; that provisions of section 7 of the Act, 1964 are not mandatory and are directory in nature as in the wake of its non-compliance, no penalty or adverse consequences are provided. He further submits that the scheme provided under section 7 of 1964 Act does not prohibit to seek examination of the witness subsequently, if the list of such witnesses for any reason could not be filed along with the pliant. He has also informed that subject application was filed on the very date (29.01.2016) when the issues were framed, and no evidence was recorded yet, its dismissal on the ground that it was belatedly filed, therefore, is not justifiable. In support of his arguments, learned counsel has relied upon PLD 1974 SC 34, 2012 CLD 337 and 2015 CLC 1990.

4. On the other hand, Mr. Waseemuddin Abid learned counsel for the respondent No.1 has argued that provisions of section 7 of 1964 Act are mandatory, and departure by the petitioner to comply with them has disentitled her to seek introducing her witnesses in the trial at any latter stage. Learned counsel has read out some portion of the evidence of the petitioner to stress his point that evidence of witnesses proposed to be examined is neither essential nor necessary to determine the controversy between the parties. He also states that the impugned order has been implemented, evidence of Baby Natasha (the child of the parties who was also sought to be examined) is in progress, which implies consent of the petitioner to the impugned order, therefore, this petition challenging the order is not maintainable.

5. I have considered the submissions of the parties and perused the material available on record. Subsection (2) of section 7 of the 1964 Act, provides for that the plaint shall contain all material facts relating to the dispute and shall contain a schedule giving the number of witnesses intended to be produced in support of the plaint, their names and addresses and brief summary of the facts to which they would depose. It is this provision of law regarding interpretation of which the parties are at odds with each other. Its apparent perusal tends to suggest that requirement of filing of a schedule along with the plaint giving a complete detail of the witness to be examined in the trial by the plaintiff is necessary. But the underlined stress or the obvious object of the said provision, that is, to curtail maximally the span of the trial, appears to be leaning in favour of the plaintiff. By its nature and scheme, the subject provision appears to be directory and not mandatory in nature, which, in addition to absence of any penal clause in case of failure of the plaintiff to adhere to it, is borne out of the proviso to it, which provides for that the parties may with the permission of the court call witnesses at any latter stage, if the court is satisfied with the expediency and relevancy of such evidence. The condition precedent in this regard appears to be satisfaction of the court. If the court is satisfied that such evidence is expedient and relevant and is in the interest of justice, it can allow its production. While arguing on the above points, learned counsel for the petitioner has stated that proposed witness No.4, Mst. Zeenat, is maternal aunt of the plaintiff and witness to the handing over of dowry articles for the recovery of which, the petitioner has filed the suit. The evidence of the proposed witness No.5 Mst. Hameeda, who is said to be sister of the plaintiff, is on the same lines. And since on the point of Khulla, which the petitioner claims has not been granted to her, whereas the claim of respondent No.1 in this respect is otherwise, the evidence of the proposed witnesses Nos.6 and 7 is necessary as they are witnesses to the circumstances leading to the compromise between the parties after grant of Khulla. Regarding witness No.8 namely Kashif, learned counsel has informed that he is the common friend of the parties and is well conversant with the facts of the case. The expediency and relevancy of the evidence of such witnesses in view of peculiar controversy between the parties has not been countered by learned counsel for the respondent. The dispute between the parties is over the factum of maintenance, the dowry articles and on the point of khula, for the resolution of which the evidence of the proposed witness appears to be essential and relevant. On the technicality, that the plaintiff could not file the requisite schedule containing names of the witnesses at the time of filing of the suit, she cannot be non-suited. The purpose of the trial is to assist the court to come to a just conclusion, and this goes without saying that such purpose is not be sacrificed by interpreting a provision of law independent of the basic scheme of law, it is part of. 7(sic.) I have examined the impugned order and have found that the learned trial court has dismissed the application without taking into consideration the fundamentals inherent in the subject provision of law and without discussing as to how the evidence of such witnesses is not relevant. Accordingly the impugned order is set aside; the petitioner is allowed to examine the enlisted witnesses. But keeping in view the nature of the suit, I hereby direct the Family Court to examine these witnesses within a period of one month and if within such period the plaintiff fails to examine the witnesses, her side shall be closed and then evidence of the respondent No.1 shall be recorded. The petition is disposed of along with listed applications in the above terms. ZC/A-54/Sindh Petition allowed.