Sajjad Khan Vs Momana Urooj

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Writ Petition

Sajjad Khan son of Malik Sajawal Khan caste Tanoli Tehsil & District Haripur.

.PETITIONER

VERSUS

Momana Urooj daughter of Asif Hussain resident of Mohallah Ramzani Haripur Tehsil & District Haripur.

Family Court-IT, Haripur.

.RESPONDENTS

ertiiTed to be True Copy

EXAMINER WRIT PETITION UNDER ARTICLE 199

05 DEC 20i1 Peshaw HIgh CowtAtd h

V OF THE CONSTITUTION OF ISLAMIC

tho&ed~ecSe:ThEYs ellc REPUBLIC OF PAKISTAN, 1973 AGAINST

THE IMPUGNED ORDER OF FAMILY

6 COURT-lI, FIARIPUR DATED 27/10/2016 IN

WHICH LEARNED FAMILY COURT-IT,

HABJPUR BY REVIEWING HER EARLIER

ORDER DATED 27/04/2016 AND ALLOW THE

1 yAR ?11N

Judgment Sheet

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IN THE PESHAWAR HIGH CC RT HA

ABBOTTABAD BENCH.

JUDICIAL DEPAR TMENT IK

W.P.No.1 16A/2O17.

JUDGMENT

Dateof hearing......06.11.2017.......................................................... Petitioner (Sq//ad Khan) by Mr. Muhammad ArjfKhan Jadoon, Advocate.

Respondent (Mn. Momana Uroof etc) by Mali/c Nomanullah, Advocate.

SYED ARSHAD AL!, J:- The petitioner seeks the constitutional jurisdiction of this Court praying that:

"It is, therefore, humbly prayed that on acceptance of instant writ petition, the impugned interim order dated 27.10.2016 to bo Tvu Copy may kindly be set aside and the order dated (AMINER 27.04.2016 may kindly be set aside". o 5 DEC Peshawar High Court Mdc nch 2. Brief but essential facts of the case are that ithorizod 4 Qrdns

Mst. Monina Arooj, respondent No.1 (hereinafter referred plaintiff) filed a suit against the present petitioner (hereinafter referred defendant) for d:solution of marriage, recovery of a house measuring 01 kanal 15 marlas, dowry articles and maintenance. The present petitioner contested the suit by filing his written statement. The case is still pending before the learned trial Court. The order sheet dated 09.4.20 16 of learned trial Court reflects that the witnesses of the plaintiff were present in the Court, however, the lawyer of the plaintiff

was not present although the case was adjourned but by imposing fine of Rs.800/-. On the next date of hearing i.e. 27.04.2016, the learned trial Court has struck off the defence of the plaintiff as on the said date neither plaintiff herself nor her learned counsel was present. In this scenario, the plaintiff filed an application for giving an opportunity to produce her evidence. The learned trial Court after hearing both the parties and receiving reply of the present petitioner allowed the said application vide order dated 27.10.2016 but with cost of Rs.2000/ with the direction to plaintiff to ensure her attendance on each and every date. This order has been challenged by the present petitioner through the present writ petition.

Learned counsel appearing on behalf of the petitioner has argued that indeed the Family Court while accepting the application of the plaintiff has reviewed his earlier order. He further stated that review is statutory 4...,emedy which is not available to the Judge Family Court

5 DEC

Court Atd Z/j z under provision of West Pakistan Family Court Act, 1964. He placed reliance on 2012 CLC 1881 (Lahore) and 1999 YLR 883 (Karachi).

On the other hand, learned counsel

appearing on behalf of respondents No.1 has argued that neither the plaintiff filed any application for review of the

order nor the trial Court has reviewed his earlier order and the Family Court has the jurisdiction to pass an appropriate orders keeping in view the facts and circumstances of each case and has placed reliance on 2014 CLC 715 (Peshawar).

Arguments heard and record perused.

Perusal of the record clearly shows that on 27.4.2016 when neither the plaintiff nor her learned counsel was present before the learned trial court then the only course available under the law to the learned Judge Family Court was to dismiss the suit for non-prosecution.

Striking the defence of any party is very harsh action and can be invoked only in circumstances when after specific directions of the Court, either party fails to perform his/her legal obligations. Hence, the order of the learned Judge Family Court dated 27.4.2016, whereby the EXA True Co defence of the plaintiff was truck off is/was not sustainable in the eyes of law.

True that review being statutory remedy is not available to a forum as a matter of course. However, when a forum created by a special statute passes an erroneous order effecting the rights of parties is not helpless to correct the same as it is established principle of law that no one should suffer for the acts/omissions of

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the Court. The learned Judge has acknowledged through the impugned order that the earlier order of striking defence of the plaintiff was incorrect and has materially prejudiced the case of the plaintiff and has rectified the manifest error. Indeed the constitutional jurisdiction is a discretionary rlief and can be invoked in aid of justice and not is aimed to perpetuate illegal orders. Hence, the impugned order cannot be interfered in constitutional jurisdiction even if it appears that the learned Court below had not been bestowed upon through explicit provision of law to pass such order. In Nawab Syed Raunag Ali etc versus Chief Settlement Commissioner and others (PLD 1973 Supreme Court 236) has held that:-

"An order in the nature of a writ of ed to certiorari or mandamus is a discretionary order. Its object is to foster justice and right 05 Drc a wrong Therefore, before a person can be permitted to invoke this discretionary power ench SEvics Orclns:

of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a man jfest illegality, then the extraordinary jurisdiction ought not to be invoked"

Similarly, in Abdul Ma/id and Ors. Vs

The State Transport (AIR 1960 Pat 333) has held that:- "The writ of certiorari is not a writ of course. It is a discretionary remedy. The very object of this writ is to foster injustice &

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right a wrong arising from the subordinate tribñnals or bodies or officers acting wholly without jurisdiction or in excess or denial of it, or in violation of the principles of natural justice, or refuses to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act or omission or error, or excess, has resulted in manifest injustice."

8.In view of what has been discussed above, the instant writ petition being bereft of any merit, stands dismissed.

Announced. JUDGE Dt.06.11.2017.

ct to be Tra

EXAMINER

O5DEc fliT !Oshawar High

Aflab P.S/s Justice Syed Arshad A/i.