1986 PLP 442 (CLC)

Mr. Mahboob Ellahi Khan the learned counsel for the petitioner has contended that the order, dated 25‑3‑1985 is without lawful authority and the appeal is maintainable under section 14 of the Act. On the other hand Mr. Ch. Muhammad Saddiq has fairly conceded that the appeal is competent against the decision and has submitted that the petitioner be allowed and the appeal be remanded to the learned District Judge, Karachi for disposal in accordance with law. It is pertinent to reproduce section 14 of the Family Courts Act which read as under:‑‑ "Appeal.‑‑(1) Notwithstanding anything provided in any other lathe time being in force, decision given or decree passed by a Family Court shall be appealable; (a) to the High Court where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and (b) to the District Court, in any other case. (2) No appeal shall lie from a decree 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 twenty‑five or less per month." A bare perusal of section 14 of the Act shows that appeal has 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. The Hon'ble Supreme Court in the case of Kandawalla & Co. v. Rashiddudin 1969 S C M R 721 laid down the following dictum:‑‑ "The words used in section 15 are 'an order', but learned counsel for the petitioner does not 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'." It will be seen that although their Lordships did agree that all orders could not be appealable they held that only such orders will be appealable as are covered by some provision of the Rent Restriction Ordinance. Applying such reasoning to the Family Courts Act such orders as are provided for the Act, I think, be held appealable. 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 Court Act itself. I am quite unable to see, therefore,, why such an order should not be appealable. In my opinion, the word "decision" as used in section 14 of the Act is comprehensive enough to include every order made under section 12 of the Act. For these reasons, I accept this petition, set aside the order dated 25‑3‑1985 passed by the learned District Judge, Karachi. The Family Appeal No. 65 of 1985 is remanded to the District Judge, West Karachi, for disposal on merits in accordance with law. In the peculiar circumstances of the case the parties will bear their own costs. H . B . T . Petition accepted.