1998 PLP 205 (CLC)

An objection was raised by the learned counsel for the respondent that transfer application is not competent before this Court as the provisions of the Civil Procedure Code are not applicable. According to him, this Court has got only appellate jurisdiction against the orders and decrees passed by the Judges of the Family Courts. The petitioner has not assailed any order of the trial Court in appeal, therefore, the application moved by him is liable to be dismissed summarily on this ground. Controverting the arguments of the learned counsel for the petitioner, the learned counsel for the respondent argued that the learned Judge Family Court, Rawalakote was not legally competent to entertain the dispute falling within the territorial competence of the Judge Family Court Bagh. Therefore, impliedly it shall be presumed that through this application, the petitioner has challenged the competence of the trial Court whereby while entertaining the suit of the respondent, it has issued the process for appearance of the petitioner before it. He further argued that the respondent has wrongly filed the suit in the Court of Judge Family Court Rawalakote by disclosing that she was temporarily residing at Rawalakote. According to the learned Counsel, the respondent is residing in village Khurshidabad as such in the transfer application moved by the petitioner before this Court, she was disclosed as resident of Khurshidabad. The service of the notice issued by this Court was affected on her in Khurshidabad. In these circumstances, this Court can take the notice of this fact and transfer the case from the Court of Judge Family Court, Rawalakote to the Court of Judge Family Court Bagh. I have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. As has been rightly pointed out by the learned counsel for the respondent that this Court cannot exercise powers under the provisions contained in the Civil Procedure Code. Under section 14 of the Azad Jammu and Kashmir Family Courts Act, 1993, the rights of appeal has been provided to this Court which being relevant is reproduced below in extenso:‑‑ "A eats.‑(1) Notwithstanding anything provided in any other law for the time being in force, a decision or a decree passed by a Family Court shall be appealable to the Azad Jammu and Kashmir Shariat Court only. (2) No appeal shall lie from a decree passed by a Family Court; (a) For dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939; (b) For dower not exceeding rupees one thousand; (c) For maintenance of rupees seventy five or less per month; (3) Every appeal under this Act shall be decided by the appellate Court within a period of sixty days from the date of presentation of appeal; (4) Subject to the provisions of subsection (5) the order of the Azad Jammu and Kashmir Saari a; Court shall be final; (5) An appeal to the Supreme Court of Azad Jammu and Kashmir from a Judgment, decree or order of the Shariat Court shall lie only if the Supreme Court of Azad Jammu and Kashmir being satisfied, that the case involves a substantial question of law of public importance, grants leave to appeal. " From the perusal of the above referred provision, it becomes clear that this Court has been given appellate jurisdiction against the orders and decrees passed by the Judges of Family Courts. There is no cavil that where an objection in respect of jurisdiction is raised, the Court is bound to consider and decide the question of its jurisdiction before proceeding further in the case. The petitioner, therefore, should have raised the question of jurisdiction before the trial Court before approaching this court because when a Court lacks jurisdiction in respect of a matter all proceedings taken by it are nullity in the eye of law. In Azad Kashmir the Family Courts stood established in five districts. The Judge Family Court Bagh is attending the matrimonial disputes of Sub Division Haveli at Sub‑Divisional Headquarter Kahutta. The parties by their le mutual consent cannot confer jurisdiction to a Court which lacks the same either on pecuniary or on territorial jurisdiction. At the same time it is a well established rule based on judicial precedents that an objection in respect of jurisdiction must necessarily be raised before the Court seized with the matter. Reference in this regard may be made to the cases titled 'Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner, Lahore and others PLD 1964 SC 829, 'Majid Ali Naqvi v. Additional District Judge and Ex‑Officio Settlement and Rehabilitation Commissioner Tharparkar and another', 1970 SCMR 375 and ' Sardar Muhammad Ayub v. Pakistan Secretary, Ministry of Resettlement and Rehabilitation, Rawalpindi and others', 1969 SCMR 96(2). In all these authorities it has been laid down that when a question of jurisdiction goes to the root of the case, it should first be raised before the Court whose jurisdiction is under question. In view of the above this transfer application under the provision contained in the Azad Jammu and Kashmir Family Courts Act, 1993, is note competent directly before this Court as such it stands dismissed with no order as to the costs. A.A./35/Sh.C (AJ&K) Transfer application dismissed.