Mohsin Yousaf Vs Judge Family Court etc

FORM No. HCJD/C-121

Order Sheet

IN THE LAHORE HIGH COURT

LAHORE

Judicial Department W.P.No.244780 of 2018 Mohsin Yousaf. Vs. Judge Family Court, etc. Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 26.03.2019. Mehar Aqsa Saleem, Advocate for petitioner. Malik Abdul Rauf Naul, Advocate for respondent No.2.

Through this constitutional petition, the petitioner has called in question the order dated 28.04.2018 passed by learned Judge Family Court, Lahore, whereby the right to the petitioner to file written statement has been closed and has also called in question the order dated 10.05.2018, whereby the learned trial court dismissed the application filed by the petitioner to review the order dated 28.04.2018.

2.Learned counsel for the petitioner has argued that copy of the plaint was not provided to the petitioner, therefore, the right of the petitioner could not be closed, whereas learned counsel appearing on behalf of the respondent has supported the orders passed by the learned trial court and states that initially the petitioner appeared in the court on 06.01.2018 and thereafter kept on getting adjournments till 28.04.2018 without filing written statement, therefore, no

exception can be taken to the orders passed by the learned trial court.

3.Heard. Record perused.

4.It has been apprised that the suit to the extent of dissolution of marriage already stands decreed.

5.From the perusal of the record it is seen that although the petitioner appeared in the court on 06.01.2018 and filed memo of appearance and took time to file power of attorney and written statement.

Subsequently on 22.01.2018 the case was adjourned for the same purpose and then on 14.02.2018, the learned Presiding Officer was on leave. On 21.02.2018, the lawyers were observing strike and again on 10.03.2018 again time was sought to file power of attorney as well as written statement. On 12.03.2018, power of attorney was filed with permission to file written statement and the matter was adjourned for 27.03.2018 and then for 12.04.2018 by providing last opportunity to the petitioner to file written statement, however, in the order dated 12.04.2018 it is mentioned that the respondent was directed to provide copy of plaint in the court and the same order was repeated on 26.04.2018 when matter

was adjourned to 28.04.2018 by directing the respondent to file copy of plaint and the petitioner to file written statement and although the copy of the plaint was not filed, the right of the petitioner was closed. The court was required to ensure that in terms of Section 8 (b) of the Family Courts Act, 1964, along with the summons issued to the petitioner to send the copy of the plaint to the defendant. It is not established on the record that such copy of plaint was provided to the petitioner by giving observation in the orders dated 12.03.2018 and 26.04.2018 directing the respondent to file the copy. It appears that the said copy was not provided to the petitioner, therefore, it would be appropriate to set-aside the order dated 28.04.2018 subject to payment of cost of Rs. 2000/- to be deposited by the petitioner with the trial court on the next date of hearing to be fixed after receipt of order of this Court and with direction to provide one opportunity to the petitioner to file written statement within next 15-days of the said date of hearing fixed before the learned trial court and in case the petitioner fails to avail such opportunity, the right of the

petitioner to file written statement shall be closed.

With this observation, this petition stands allowed.

(Muzamil Akhtar Shabir) Judge