Mst. Zaibi Vs Zahid Ali and others

\r Judgment Sheet

IN THE PESHAWAR HIGH COURT PESHAWAR

JUDICIAL DEPARTMENT

lVrit Petilion No. 1 4 0 6-Pl2 0 2 4

JUDGMENT

Date of hearing 21,3.2024

Annellants.

(Mst. Zaibi) By: Malik Anwar ul Haq, advocate.

Resoondents.

(Zahid Ali and others) By: Nemo.

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WI@AR A HMAD, J,. Through this petition liled underArticle 199 of the Constitution of Islamic Republic of Pakistan 1973, petitioner has prayed for following relief:- "It is therefore, humbly pnyed that by accephnce of this writ petitiory it is humbly pnwdtlat:

i). The respondent No.3 may kindly be directed to tansfer the ffeartion proceedings under title "Mst .Zaibi Vs hhid Ali' from Distict Nowshen to DisriaChatsadda

M.Ishsq ghah, (wPt4 1406P20U) (88 Hon'ble MhJasttce lJazAmrar Ilon'ble MhJaslice mqu Ahmad

it), The Registar of Pedtarmr High Court may kindly be direcad tu circulate a genenl order in respect ofexecution proceeding pendhry in all fanily cout8 of he Khyber Palfitu nl<lrua prouince aubmadc tansfer of uecudon proceedingfrom one distict

to another distict acmrding to law without being frling vwit peddon before theiligh Court"

2.Brief facts necessitating filing of instant petition are that the petitioner/wife along with her minor son Ayaan and daughter Mst Anaya had brought a suit before the /udge Family Court at Nowshera against respondent/husband for recovety of dower etc and maintenance allowance as well as recovely of dowry articles, as per list annexed with the plaint or its market value. In response to summons, respondent/husband had not appeared and accordingly an exparte decree had been granted in favour of plaintiffs/petitionery uide iudgment and decree dated 20.9.2023. Thereafter, petitioner/wife frled execution petition before the executing court at M.Ishq4 Shah, (wPEl t40CP/2024) (SB Hon'ble MhJusltce lJazAawr Ilon'ble Mntusdce Whv Ahmad

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Nowshera and since respondent/husband was residing at Di stri ct Charsa d da (an oth er Distri cQ, th erefo re, executi on proceedings, were required to be transfeted from District Nowshera to an executing court at District Charsadda for satisfaction of the decree

2.Argaments heard and record perused.

3.Perusal of record reveals that petitioner had directly approached this court for transfer of execution petition from one District to another. Although West Pakistan Family Court Rules, 1965 were silent on the subject but in such circumstances, learned Executing Court may have recourse to the prouisions of Code of Civil Procedure. Reliance mayhere be placed on the judgment of the Honourable Supreme Court rendered in the case of 'Muhammad Atshad Mum W MsLfiturshid Begm and otherc" reported as 2021 S C M R - 1145 where Honourable Apex Court has held ;

"The Family Court Act 1964 (W.P. Act XXXV of 1964) (the Act) was enacted for "......

M.Ishaq Shoh, ot/w1406Pnou) (SB Eon'ble L{r.tustice lJczAnwar Itorr'ble Mr.lusttce Wa, Ahnad

expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith'r; provisions of the Qanun-e-Shahadat Order, 1984 (P.O. No.10 of 1984) and those of the Code except sections 10 and 11 have been excluded to achieve the legislative intent. The exclusion of normal rules of procedure and proof, applicable in civil plenary jurisdiction for adjudication of disputes in proceedings before a Family Court, is essentially designed to circumvent delays in disposal of sustenance claims by the vulnerable; this does not derogate its status as a Court nor takes away its inherent jurisdiction to protect its orders and decrees from the taints of fraud and misrepresentation as such powers must vest in every tribunal to ensure that stream of justice runs pure and clean; such intendment is important yet for another reason' as at times, adjudications by a Family Court may involve decisions with far reaching implications /consequences for a spouse or a sibling and, thus, there must exist a mechanism to recall or rectify outcome of any sinister or oblique manipulation, therefore, we find no clog on the authority of a Family Court to re-examine its earlier decision with a view to secure the ends of justice and prevent abuse of its jurisdiction and for the said purpose' in the absence of any express prohibition in the Act, it can borrow the procedure from available avenues' chartered by law.

M.Ishaq Sha]r, 0rP#4 t40GP/20U) (SB Eon'ble Ll^ta&lce lJozAttwor Ilon'ble Mhlusdct lYlq@ Ahmad

Question of non-applicability of the Code barring sections 10 and 11 thereof came up before the Court in the case of Muhammad Tabish Naeem Khan v. Additional District Judge Lahore and others (2014 SCMR 1365), in the said case, plea of ouster of procedure was repelled as under:

"We are not persuaded to hold, that the ex parte decree dated 4.7.2008 was void, for the reason that there is no provision in the West Pakistan F'amily Courts Act, 1964 to strike off the defence of the petitioner' when he failed to file the written statement, thus, it (decree) should be ignored; suffice it to say that the Family Court is the quasi judiciat forum, which can draw and follow its own procedure provided such procedure should not be against the principles of fair hearing and triaIr.......".

In the case of Haji Muhammad Nawaz v. Samina Kanwal and others (2017 SCMR 321) it was reiterated that:

"Family Court, whether as a trial court or an executing court, are governed by the general principles of equity, justice and fair play".

Similarly, Honourable Lahore High Court while giuing its iudgnent in the case of "MstAmman Gul Vercus Iudge Famlty Court Rawalpindl and 2 otherc", reported as l{.Ishaq Shah' (w,PH4 t 406-P2024) (SB Hon'ble Miluglce liazArwu Hon'ble Mr.Jusdce Wqar Ahmad

2023 C L C - 1300. has held that the Family Court may itself transfer the execution proceedings under Section 39 of the CPC. Relevant observations ofthe llonourable Lahore High Court rendered in the above cited judgment are also reproduced for ready reference:-

15.Part II of "C.P.C." deals with the execution and it provides a detailed mechanism for the execution of decree passed by a court. Section 38 of the "C.P.C." lays down that a decree may be executed either by the court which passed it, or by the court to which it is sent for execution. We are mindful of the fact that Section 13 of the 'rAct, 1964" neither provides detailed mechanism for the execution of decree nor caters all the eventualities arising from the execution proceedings. Sub-section (4) of Section 13 of "Act, 1964" places the Family Court and the Civil Court at the same pedestal for the purpose of execution of decree, so in that capacity a court 'rFamilyil or "Civil" enjoys all powers of the executing court vested in

I'C.P.C.".

Part II as well as Order XXI of the Section 39 of the "C.P.C." deals with the transfer of decree which empowers the court who passed a decree to send it for execution to another court, on the application of the decree holder. We deem it appropriate to reiterate M.Ishaq Shah, (fr'P#l1406P2024) (SB llon'Ne Mhluitcc lJazAmtar Hon'ble Mntaslce wlqat Ahmod

that once a decree is passed by the Family Court that becomes executable in terms of Section 13 and in case ofany hindrance to the same, the learned executing court can adopt any of the mode provided for the execution of the decree in the "C.P.C.t'

4 According to mechanism embodied in the prouisions of CPC mentioned in the iudgment of Mst Amman Gul supra, the execution proceedings can be transferred by the Family Court and can well be executed by the tnnsferee court under the relevant prouisions of CPC (regtttating such proceedings for transferred execution petitions). The procedure of CPC shall be borrowed and accordingly an alternate mechanism would be deemed provided not only for transfer of the decree but also for regulating the proceedings of such transferred execution Petitions.

5.We in such circumstances, dispose of instant petition with observation that petitioner may, if so aduised' move an application to the learned Executing Court which shatlbedecidedintightofourobsetyationsrecorded (wPt1t1oGPn024) (SB Hoa'blc Mr.Jaglce lfu'Arwqr M.Ishaq Shah, Ho 'bL Mr,tutlcc Wa, Ahrnad

herein above. Learned Registrar of this court shall also circulate copies of this 1'udgm ent in the ciuil and mily Courts of the Prouince for information.

tuboe

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Datc of hearing rnd rnnouncement Of Judgmcnt...,.,. .21,3,2024

Drt€ ofPrcprrrtion and signing of Judgmcnt...,....,..., ,22,4,2024

I[.Ishaq Shqh' orP# t40cP/2021) (SB llon'ble Mllaslce IJsz Anvar Eoa'bte Mr.tufrce Mqat Ahmad