Salman Fazal Vs Judge Family Court etc

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BbWE ISLIP HJD/ C-42 , (Reuised: under Act Na.II af .1990)

ORDER..'PP TIVE COIIRT

IN THE COURT OF HONBLE MR,JUS"TICE MUZAMIL AKI"ITAR

(a)Judgment approued for reporting' Yes,'n /[o v/

cgarrurCATE Certified that the ludgment/ ar<:,Ier is based upot"L or etrurrci.stes a Principle of law/ decid.es a question o.l' laut, uthich is of Jirst impressictn/ disting ui s he s / o u e r -rule s / re u er s e / e xpl nins a p re u iott s cl e ci s io n..

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JUDGE

Note:-'(1) This slip is onlg to be usedl uthen some actioru is to be talcen.

(2)If the slrp is used,,,'the Read.er must atta.ctt tt to the top <tf the first page of thefudgment, Reader must ask the Jud:ire uriting the Judgment wh.ether the Judgment is approued for reporting.

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Those directions which aret not to be usecl should. be d.el.etecl.

N*$ To be used bg I.T.

Judgment Upload of Website Narne t_ll l

Entry in Database t* :l Signature

Dated F

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,F Form No.FICJD |C-I2I ORDtr]R SHLEIIT

IN TFIE LAHORB HIGH COURT, LAIIORN.

JUDICIAL DEP,I\R]-M EN T

wP No. 19199, of 2019

-rll Fnzal Salnran r In,,q$l

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l, Judge Family Couft, Slheikhupura etc I

S.No. of Date of Order with signr;rture of Jurdge and that oflparties or' Order/ order/ cot.lnsel where necessal'y Proceeding proceeding 02.04.2019 M/s. Aamir'Iqbal llasS^t^t and Urnair Yasin, Aclvocates for petitioner, Ms. Zarish Fatima, Assistant Attorney Ceneral ancl Mr. Muhammad Arshad Manzoor. AAG. On Court's call. M/s. Nasrullah Khan Babar, Ch. Muhamtlacl Naseer artd Ms. Uzm a Razzaq.l,lhan, Acl vocates/A m i c i c u ri ae.

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Through this constitutional petition, the petitioner' I tl I .

has called in questi,on the order dated 06.1 I .20l B passed by Judge Family Court, Sheildrupura, whcretry the application filed b1r the petitioner under Section 5 ol'the Family Courts Act,1964 ("Act") for rejection of plaint to the extent of recovcrl,s{: Rs.70,000/- has lreeu dismissed.

2.Learnecl counsel for the petitioner has argr-recl that tt as per preamble, iSlection 5 of the Act and Scheclr,rle-I attached with the t\ct, the family court being a special court of limited juriisdiction cannot entertairr claim to the extent of :recoveD, of l{s.70,000/^ frled by rcsponclent

Ft ."u -iffi- ll/P No. 19199 of 2019 c-_-- r l\o.z l.YA (/L' responoent") against the petitioner ancl the

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jurisdiction for the said purpose vests with the civil court.

3.Conversely, the learned Law Of.fices ns well as Amici Curiae have argucd tlrat ils notl.rirrg hns bccrr | | ,t I

finally decided, tht:refbre, this constitutionirl pctition is

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pre-mature. ' I

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4.In 'paragraph 2 of the plaint, the responclent claimed that on the second day of urarriage, the petitioner had taken away I1s.70,000/- caslr from her pulse wittr the promise to return the same which has not been clone. The question here for determination is wlrether Rs.70,000/- could be recoverecl uncler the entries to the schoclttlc of the Act which provicled for suits that are uncler exclusive jurisdiction of family courl. In the present case, the trial court has reached the conclusion on the application l:led by the petitioner that cash Rs.70,000/- is presr;mecl as personal property of the wifu and farnily cotlrt has tlte jurisdiction to entertain the matter relatirrg to tlre same including recover)' of cash. Whetl-rer or not the said amount can be treated as personal property of tlre wil'e under the entry No.9 of the Schedule of the Act is yet to be determinecl on the basis of eviclence to be recordecl by the parties and the court has prima .facie presumecl tlre

r\j.r llrP No.l9l99 of 2019 : 'i, Dote( 02.01,2012

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same to be personnl property of thc wiftj lor thc pr'rrposes of further deterrnination, therefbre, the irnprrgltecl ot'clet' is purely interlocutory in nature, against which an appeal is not available und,e,r the law. Consecluerrtly, wltere the | | ,l appeal is not marjintainable, the constitLltional petition cannot be used as ,its substitr.rte especialfy where tro {'tnal l" rl '

challengeable ordcr reqlliring deterrr"rination has yet lrberr passed. Besicles it is a sel"tled plinciple o1'law th;rt l plaint cannot be rejectecl or returned in piecettreal wheu sorue 'dispute requirecl (:o be determined by the coutt still subsists and it coulcl be rejectecl orrly i1'all reliel's clairnecl were barred uncler the law. Reliance in this regarcl is placed on the judg;rnents reported as Qu(eer Ahtrtutl!s.

unrl others (2017 YLR l2l7\

and Imran,|Ilarg llhai$h and 5 othirLvs. Mst. Zlrina Gul and,4',others (2003 YLR 943). Irr the plesent case,

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the petitiori0r seekri piecemeal reiection o1 plaint whereas it is not dispr"rtecl that the cottrt has jr"rrisdiction to entertain and decicle the remaining claim and on the basis of principles laicl clown in the afore relerrecl juclgments, it is not advisable to reject the plaint at this state.

5.For ,what has been discurssed above, this constitutional petition at this stage is prematttle artd is

accofdingly;;flismi1,;sgd. The petitioner nlay wait lor ti'al order before challenging the same through appropriate proceedings,

WUZAMIL AK[ITtl R S I't A It I R)

JUDGIX

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