1998 PLP 850 (MLD)

Raja Muhammad Suhail Iftikhar for Petitioner. Lal Khatoon (petitioner-plaintiff) filed suit for dissolution of her marriage against Allah Jiwaya (respondent-defendant) and prayed for the decree on various grounds. The suit was decreed ex parte in leer favour on 4-2-1996, but the said decree was set aside on the application of the respondent-defendant vide order dated 15-2-1997 on the statement of the learned counsel for the plaintiff. On 3-12-1997, the suit was dismissed for non-prosecution as the plaintiff and her counsel failed to appear. The petitioner through this Constitutional petition, challenged the wires and legality of the orders dated 15-2-1997 and 3-12-1997 as having been passed illegally, without lawful authority and of no legal effect against her rights.

2. The learned counsel for the petitioner regarding order dated 15 2-1997 submitted that the Advocate who made the statement regarding having no objection to the setting aside of the ex parse decree was not a counsel of the petitioner. He submitted that the said Advocate had made the statement without any authority and, therefore, the said order was liable to, be set aside and quashed.

3. This contention cannot be accepted at this stage for various reasons. This order dated 15-2-1997 has been disputed in this writ petition filed on p 8-]-1998 i.e. almost after about one year. The petition is hit by tile doctrine of laches. In the case of Settlement Authority through the Chief Settlement Commissioner, Lahore and another v. Mst 1976 (PLD SC 410) the Supreme Court while setting aside the Akhtar Sultana order of the High Court observed as follows:- "The delay and laches were so palpable that they should have attracted the notice of the High Court, and the mere fact that no objection was taken at the time was no ground to omit to consider the consequence of delay and laches. It was the duty of the respondent to explain the obvious delay in moving the writ petition. Nevertheless, this Court is entitled to consider the laches on the part of the respondent and to pass such order as the High Court could or should have passed on a true consideration of the palpable delay in making the Constitutional petition.. "

5. In the cases of The Lahore Central Cooperative Bank Ltd. v. Pir Saif Ullah Shah (PLD 1959 SC 210) and Shaikh Muhammad Hafiz Ullah v. Ghulam Yasin and others (1970 SCMR 41) the delay in filing the writ petition was considered to be a sufficient ground for denying the relief to the petitioner.

6. The copy of the "Wakalatnama" attached with the suit for dissolution of marriage has not been filed with the writ petition to show that the Advocate who signed the order-sheet in token of having no objection to the setting aside of the 8 ex parte decree was not the counsel of the plaintiff. Further, the suit remained pending for ten months before its dismissal and after the ex parte decree was set aside but the plaintiff at no stage raised any objection or filed any appeal. The order dated 15-2-1997 thus became final.

7. Now the question of dismissal of suit for non-prosecution by the plaintiff. There is nothing wrong if the suit is dismissed for non-prosecution by the plaintiff as the Court has no other alternative, If a plaintiff is not vigilant and is not appearing in Court to prosecute the matter, the Court cannot proceed further in his absence and also cannot keep the matter pending unnecessarily. The learned counsel for the petitioner in this regard referred to section 17 of the Family Courts Act, 1964 and submitted that the provisions of Civil Procedure Code except sections 10 and I1 were not applicable to the proceedings before a Family Court. There is no dispute about the proposition, but the question which requires adjudication now is whether dismissal of a suit for non-prosecution can be challenged through a Constitutional petition. The simple answer is no. The dismissal of the suit due to non-appearance of the plaintiff has not been provided in the Family Court Act as in the case of a Civil suit under Order 9, Rules 3 and 8, C.P.C. Such an order is not a decree within the meaning of section 13 of the Family Courts Act and, therefore, no decree-sheet in the prescribed manner (form 1) is prepared so not appealable. , 8. "decision" of the Family Court is also appealable under section 14 of the Act. The question which requires consideration is that whether the dismissal of the suit' for non-prosecution amounts to a "decision" appealable under section

14. In the Chambers Dictionary the meaning of "decision" are under:-- "the act or product of deciding; settlement; judgment; the quality of being decided in character."

9. In the judicial pronouncements as reproduced in the "Words and Phrases" (Permanent Edition, Volume 11-A) published by West Publishing Company it is defined as under:-- 'decision' means to determine; to form definite opinion; or come to conclusion. " "A resort of choice of possibilities is 'guesswork', not 'decision'. 'Decision' is a final determination arrived at after consideration, an opinion formed, or a course of action decided upon." "The term 'decision' in statute permitting appeal from decision of Trademark Trial and Appeal Board means a dispositive decision in which a right has been adjudicated." "Decision", within statutory provision that decision of State Board of Education as to division of funds and indebtedness between school districts involved in transfer of territory of one district to another shall be final, means an authoritative determination." 'decision' means act of deciding or settling a dispute or question by giving a judgment; the act of making up one's mind; a judgment or conclusion reached or given; a determination." "A 'decision' involves reaching a conclusion." "Word 'decision', when used in connection with trial to the Court means Court's finding of facts, whether general or special, and is analogous to jury's verdict."

10. In view of the definition mentioned in the preceding two paras., a "decision" obviously means judicial application of mind regarding a disputed between the parties. It necessarily involves a dispute actual or potential. It also means the findings of the Courts on the facts. The dismissal of the suit for non- prosecution, is not covered by the word decision as defined above, Hence, the dismissal of the suit of the petitioner by the learned Judge Family Court for non- prosecution did not amount to a 'decision' and, thus, not appealable under section 14 of the Family Courts Act.

11. After having come to the conclusion that the order dated 3-12-1997 was neither a decision nor a decree hence, it was not appealable The remedy of the petitioner was, therefore, to file a fresh suit, which is not barred under any provision of the Family Courts Act, or apply for the restoration of her suit. As an efficacious and adequate remedy, as mentioned above, is available to the petitioner, the writ petition is not competent and is accordingly dismissed in limine. A.A./L-23/L Petition dismissed.