2011 PLP 266 (YLR)

SYED AKHLAQ AHMAD, J.--Through this writ Mst. Tahira Perveen/ petitioner/plaintiff has challenged the validity of the order dated 24-9-2010 passed by the learned Judge Family Court Lahore whereby he accepted the application moved by Syed Hasnain Raza Gillani/respondent No.1 for producing Cheque No. P-039832, Account No. 1675-0 of National Bank of Pakistan, Cantt. Road Building Branch, Rawalpindi, in favour of the respondent/ defendant as surety and order dated 22-5-2009 passed by the Arbitration Council. It is prayed that the impugned order dated 24-9-2010 be set-aside being illegal and without jurisdiction.

2. Brief facts of the case are that on 17-6-2009 the petitioner/plaintiff filed family Suit No. 475 of 2009 for dissolution of marriage, maintenance, recovery of dower, return of dowry, recovery of pocket money and recovery of Rs.3,50,000 against the respondent/defendant. He contested the suit by filing the written statement. Issues were framed and the parties adduced their evidence. In the written statement respondent No. 1/defendant did not rely upon any document except a letter regarding permission from the salsi council for contracting second marriage. No other specific documents were relied upon with the written statement. No list of reliance was also attached. After concluding the evidence of both sides, respondent No.1/defendant moved an application to tender the documents. Application was resisted by the petitioner/plaintiff. After hearing the arguments of both sides, learned Judge Family Court accepted the application vide order dated 24-9-2010. Hence, this writ.

3. Learned counsel for the petitioner contends that section 9(2) of the Family Courts Act, 1964 is mandatory in nature. While passing the impugned order learned Judge Family Court has not kept in view the provision of the said law. Even no reason or cause has been mentioned in the application filed by respondent No.1/ defendant for non-appending the original or copy of cheque or decision of the Arbitration Council. The question is why respondent No. 1/defendant had not relied upon the said documents. It is therefore, prayed that the writ be accepted and the impugned order dated 24-9-2010 passed by the learned Judge Family Court be set-aside. In support of his contention learned counsel for the petitioner has relied upon PLD 1975 Lahore

318. Operative para of the impugned order dated 24-9-2010 passed by the learned Judge Family Court Lahore reads as under:-- "Arguments heard. Record perused. Perusal of the record reveals that during the course of evidence, an Iqrarnama dated 24-4-2008 has been presented on the record as Ex.D-1. In the said Iqramama, it is mentioned that plaintiff issued a Cheque No. P-039832, Account No. 1675-0 in the name of National Bank of Pakistan, Cantt. Road Building Branch, Rawalpindi, in favour of defendant as a surety. Therefore, the said cheque has become relevant pertaining to the controversy arising between the parties. Order dated 22-5-2009 passed by 'Arbitration Council is also relevant. The documents which defendant intends to produce in the evidence will be helpful in order to reach at the just decision of the case. Therefore, in order to meet the ends of justice, application stands accepted subject to cost of Rs.500. Now to come up for submission of documents for 30-9-2010."

5. After hearing the learned counsel for the petitioner and going through the documents available on the file find that under section 14(3) of the Family Court Act, no appeal or revision is competent against the interlocutory order passed by the Family Judge. Likewise an interim order of the Family Court also cannot be legally challenged before the High Court through the writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan. If any authority is needed, reference may be made to "S. Azharul Hassan Naqvi v. Mst. Hamida Bibi and 2 others" (1979 CLC 754) and "Muhammad Akram v. Mst. Raheela Aslam and 2 others" (PLD 1999 Lahore 33).

6. Be that as it may, the petitioner is not without remedy in as much as if a decree is ultimately passed against the decision or the decree wherein he may challenge the interim order, if he so desires.

7. In view of above, the writ petition is not maintainable and the same is dismissed in limine. A.R.K./T-46/L Petition dismissed.