P L D 1977 Lahore 718 (PLP)

MUNAWAR ELAHEE RANA, J.-The propriety of the decree and judgment dated 25-3-1976 passed by the learned Additional District Judge. Multan, in a suit for dissolution of marriage is called in question by the petitioner in the present writ petition on the precise ground that the learned Additional District Judge did not preside a District Court as provided under section 14 (1)(b) of the West Pakistan family Courts Act (Act XXXV of 1964), therefore, the decree passed by him in appeal was without lawful authority.

2. The brief facts, as stated, are that the petitioner, Mst. Malookan, had filed a suit for dissolution of marriage on various grounds but it was dismissed by the Judge, Family Court on 7-7-1975. The appeal made to the learned District Judge, and later assigned to the learned Additional District Judge was beard and decided by him on 25-3-1976. The dismissal of the appeal provided a cause to the petitioner for invoking the writ jurisdiction.

3. Referring to the provisions of section 14 (1) (b) of the West Pakistan Family Courts Act, 1964, the jurisdiction of the learned Additional District Judge was challenged by arguing that he did not have jurisdiction to decide an appeal against the judgment and decree of a Family Court established under the Act. According to the learned counsel for the petitioner, section 14 (1) (b) of the Act empowered the District Court alone to bear and dispose of appeals against the decrees passed by the Family Courts and for this purpose the District Court did not include the Court of the Additional District Judge. By saying so, the learned counsel meant that the Additional District Judge could exercise the powers of the District Court only when such powers were delegated to him by some statute, and that the Family Courts Act did not contain any provision by which the appellate powers were exerciseable by him. In this behalf, some instances were referred to. It was argued that in Malik Muhammad Aslam v. District Magistrate, Lahore and another P L D 1975 Lah. 4 the powers of the District Magistrate were conferred on the Additional Deputy Commissioner, who was not invested with the powers of an Additional District Magistrate. As under section 10 (2), Criminal Procedure Code, powers of preventive detention could only be conferred on persons appointed as District Magistrate or the Additional District Magis trate, therefore, the notification conferring powers of the District Magistrate on the Additional Deputy Commissioner was held to be void. Similarly, Wajahat Ali Hasnee v. Mst. Ghazala P L D 1970 Lah. 641 was cited to show that a Family Court was not subordinate to the High Court and for that reason its orders are not revisable by the High Court. The same view was taken in Mst. Tahseen Akhtar v. Mahmood-ul-Hassan P L D 1971 Lah. 875 where it was held that excepting sections 10 and 11, application of other provisions of the Code of Civil Procedure had been specifically excluded by section 17 of the West Pakistan Family Courts Act, 1964. It was further held that the aforesaid statute and Rules framed thereunder bad made significant departure from the provisions of the Code of Civil Procedure in respect of place of suing, recording of evidence and the right of appeal. Therefore, while deciding cases falling under the Family Courts Act, the Family Court, the District Judge and even the High Court exercise jurisdiction under that Act and not the Code of Civil Procedure. Orders of the District Judge passed either as a Family Court under section 7 of the Act or as an appellate Court under section 14 of the Act are not subject to the revisional jurisdiction of the High Court, and as such, a revision petition under section 115, C. P. C. is incompetent. On the aforesaid basis and with reference to the precedents cited, it was argued that when forum of appeal under the Act was the District Court, it meant that the District Judge alone should have decided the appeal and not assigned the same to the Additional District Judge.

4. This brings us to make a little clear study of the statute concerned. Family Courts have a confined jurisdiction and are the creation of a special statute, namely the West Pakistan Family Courts Act (W. P. Act No. XXXV of 1964). It is enforced for the purpose of conferring exclusive jurisdiction on the Family Courts for the expeditious settlement and disposal of disputes relating to marriages and other Family affairs connected therewith. Section 2 (1) (b) defines the Family Curt to mean a Court constituted under this Act. Government is empowered under section 3 to establish one or more Family Courts in each District or at such other place as it may deem necessary, and appoint a Judge for each of such Courts. Section 4 relates to the qualification of a Judge. A Family Court, under section 5, has exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule i.e. dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of children, guardianship and jactitation of marriage. But under section 6. the place of its sitting is regulated by the District Judge. The section provides that a Family Court is to hold its sitting at such place or places within the District or area for which it is established as may be specified by the District Judge. After hearing the parties as provided in sections 7 to 12, the Family Court would pass a decree in such form and in such manner as may be prescribed Section 14 deals with the appeals from the decree passed or decision given by the Family Court. Under subsection (1) the decision given or the decree passed by a Family Court is 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 a rank and status of a District Judge or an Additional District Judge and (b) to the District Court, in any other case. The whole scheme of the Act relates to the Family Courts, how they are established and what powers they are invested with. It lays down a special procedure under which the Courts are to perform their functions. Section 15 provides the Family Courts with power to summon witnesses whereas section 16 enables them to punish for their contempt. A special procedure relating to appearance through agents and court-fee is framed and the provisions of Civil Procedure Code with the exception of a few sections and the Evidence Act are made not applicable to them. However, the provisions of the Muslim Family Laws Ordinance, 1961, and rules framed thereunder are made applicable.

5. In spite of all the aforesaid special provisions in regard to the constitution and working of the Family Courts, the Act makes mention of the High Court and the District Courts. As stated earlier, section 4 speaks of the District Judges, the Additional District Judges, Civil Judges and the Qazis. Under section 6, the place of sitting is prescribed by the District Judge. As provided in section 14, appeals against the decisions taken and decrees passed by the Family Courts would lie to the High Court in certain cases and in all other cases to the District Court. Section 25 lays down that the Family Court would be deemed to be a District Court for the purposes of Guardians sad Wards Act. Under section 25-A, the High Court and the District Court are invested with the powers of transfer of cases from one Family Court to another.

6. The Act has introduced the District Court, as well as District Judge and the Additional District Judge, but it is silent in respect of their establish ment and constitution. Since there is no specific definition prescribed for them in the Act, their existence appears to be presupposed. However, the Government has under section 26 of the Act framed Rules, namely the West Pakistan Family Courts Rules, 1945. Rule 7 speaks of the forum for institution and bearing of the suits under the Act. It provides that suits triable under the Act shall be instituted in, and be heard and tried by the Court of the Civil Judge having jurisdiction as provided in rule 9, and where in any District there is no such Court, such suits shall be instituted in. and be heard and tried by the Court of the District Judge or the Additional District Judge. By this provision, it is indicated that the suits specified in the Schedule would be instituted in the Court of the Civil Judge, District Judge or the Additional District Judge, as the case may be. It would show' that the Civil Judge, the District Judge or the Additional District Judge 4 the Court which would be the Family Court for this purpose.

7. There is another provision contained in subsection (2) of section 2 of the Act that words and phrases used in this Act but not herein defined shall have the meaning respectively assigned to them in the Code of Civil Procedure (Act V of 1908). This subsection was not found in the Act but was specifically included by section 3 of the West Pakistan Family Courts (Amendment) Ordinance (Ordinance X of 1966). It has clarified the scope and extent of the "District Court" as used in the Act. For purposes of defining this Court the provisions contained in the Code of Civil Procedure can be taken use of. "District" is defined in subsection (4) of section 2 of the Code to mean the local limits of the jurisdiction of a principal Civil Court of Original Jurisdiction (hereinafter called a "District Court"). Similarly, a "Judge" under section 2 (8) of the Code would mean a Presiding Officer of a Civil Court.

8. The difficulty still remains unresolved when the Code of Civil Procedure by itself does not establish the District Court. A District Court is a civil Court presided over by the District Judge, civil Courts are constituted under West Pakistan Civil Courts Ordinance (Ordinance II of 1962). Under section 3, three classes of civil Courts namely the Court of the District Judge, the Court of the Additional District Judge and the Court of the Civil Judge are established. Section 5 enables the Government, in consultation with the High Court, to appoint as many persons as it thinks necessary to be District Judges and post a District Judge to each district. It further provides that the same person may be appointed to be District Judge of two or more districts. Similarly, under section 6, the Government may, in consultation with the High Court, appoint as many Additional District Judges as may be necessary. Subsection (2) further provides that an Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him, and in the discharge of those functions he shall exercise the same powers a9 the District Judge.

9. From the provisions mentioned above, there remains no doubt that the Additional District Judge is not the District Court in itself, but when assigned with functions of the District Judge by the District Judge, he would, in the discharge of those functions, exercise the same powers as the District Judge.

10. Some cases, including the present one, were heard along with Writ Petition No. 793 of 1874 titled Abdul Samad v. Muhammad Ali and other which pertained to the bearing of a revision petition by the District Court under subsection (2) of section 115 of the Code of Civil Procedure (Act V of 1908). We have, in that case, referred to section 6 of the West Pakistan Civil Courts Ordinance, 1962, and held that the Court of District Judge established under the said Ordinance is the principal civil Court of original jurisdiction and is the "District Court" and according to subsection (2) of section 6 of that Ordinance, the District Judge could assign a revision petition or, to be more precise, the function of hearing of a revision petition to an Additional District Judge. We are of the opinion that similarly District Judge would be competent to assign an appeal or function of hearing an r appeal under subsection (1) (b) of section 14 of the West Pakistan Family Courts Act, 1964, to an Additional District Judge. Learned counsel f:)r the petitioners in various writ petitions pertaining to Family Courts Act, which were heard along with the various cases of revisions under the Code of Civil Procedure, submitted that the said Act was a special law and as it made mention of only the "District Court" as the forum of appeal, the District Judge should have heard that appeal himself and should not have assigned the same to an Additional District Judge. The plea has no merit. No doubt subsection (1) (b) of section 14 of the Act, mentions the "District Court" as the forum of appeal but it does not state as to how that Court or the Presiding Judge of that Court is to regulate its or his functioning respectively in the matter of hearing the appeal. This matter being untouched in the West Pakistan Family Courts Act 1964, obviously is to be regulated by section 6 (2) of the West Pakistan Civil Courts Ordinance, 1962. In the circumstances, the assignment of appeal by the District Judge to the Additional District Judge for hearing was not illegal nor would the order by the Additional District Judge be deemed to have been passed without lawful authority. This is all the more so, inasmuch as, here the case is stronger than the Revision Cases because section 6 (2) of the West Pakistan Civil Courts Ordinance, 1962, contemplates assignments and hearings 6f appeals by the Additional District Judges.

11. In some of the cases, the appeals against the decree of the Family Courts were directly filed in the Court of the Additional District Judge. It was argued that the Additional District Judge could not assume the powers of the District Judge and entertain and dispose of such appeals. This matter was also taken up in the said writ petition and we have held that the District Judge could order the assignment in individual cases as well as generally. As there was no material on record to rebut this point, the presumption was that general assignment was ordered. On this ground, the argument had no substance.

12. A regards the merits of the case, the objection of the learned counsel is that the impugned order was result of misreading of evidence. However, he pointed out no specific misreading of any kind and probably his objection was directed towards appreciation of evidence. rather than any misreading. The objection has no force. The learned appellate Court has discussed the entire evidence and found facts against the petitioner. The C High Court, in the exercise of its writ jurisdiction, does not act as a Court of facts and for that reason cannot take upon itself the duties of a Family Court and decide matter of controversy once again.

13. For the reasons aforementioned, there is no force in the petition and the same is, therefore, dismissed with no order as to costs. S. Q. Petition dismissed.