Hamza Masood Shafi Vs Mst Rooha Arooj and another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

W.P No. 1720-P12022 With Interim Relief

Hamza Masood Shafi. .(Petitioner) vs

Mst. Rooha Arooj and another... o.......(Respondents) Present: Khawaja Zafar Jahangk, Advocate for the petitioner.

Date of hearingz 21.07.2022

JUDGMENT

MUHAMMAD IJAZ KIIAN. J.- Through the instant writ petition, petitioner has prayed for the following relief:-

"lt is therefore, respectfully stated that on acceptance of the instant writ petitiollr the impugned application dated 10.03.2022 of the respondent No. I and imPugned order/judgment dated 07.04.2020 of the respondent No. 2 may kindly be set aside and consequently respondent No. 1 may kindly be directed to produce her entire witnesses, for the further proceedings and to reach the logical conclusion of the case."

2.Precisely the facts necessary for the decision of the instant writ petition are that respondent/ wife filed a suit for the recovery of her dower comprising of 20 tolas gold, Rs. 500,0001' and p possession through partition of the shari share of the petitioner/husband in the house of his father, recovery of past maintenance of two months from May,201 9 till filing of the suit @ Rs. 10,000/- per month and for Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

V future maintenance at the same rate tilr disposal of the instant suit with a further increase of Zlyoper annum.

3.The petitioner/trusband was .surlmoned, who submitted his written statement, where he raised various legal and factual objections, whereafter issues were framed and evidence of the respondent/ wife is in progress before the learned Judge Family Court.

L At this stage of the proceedings, a controversy cropped up between the parties as the respondent/wife had submitted an application to seek permission to deposit diet money for the attendance of the official wihresslNikah Registrar/ Nikah Khwanbut on the date fixed i.e. on l5th March, 2022 before the learned Judge Family Court, the petitioner/husband raised an objection by stating that though the name of Nilrah RegistmrlNikah Khwan is mentioned in the schedule of witnesses of the respondent/wife at Sr. No.

4, however, his objection was that the said witness could not be summoned through the process of the Court. The learned Judge Family Court vide order dated 15.03.2022 directed both the parties to assist the Court on the aforesaid issue. Accordingly, both the learned counsel representing their respective parties were heard and the learned Judge Family Court was pleased to accept the application of respondent/wife Abdul Sabooh/* (D.8.) Mr Ibrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

V qua the summoning of the Ntkah Regi strar/Nikah Khwnn through process of the Court and accordingly, she was directed to deposit the diet money, vide the impugned order dated 07 .04.2022. Petitioner/husband being aggrieved of the aforesaid order has challenged the same before this Court through the instant writ petition.

). Arguments of learned counsel for the petitioner were heard in detail and the record appended with the instant writ petition was gone through with his able assistance.

L The main thrust of the arguments of

learned counsel representing the petitioner was that since in the list of witnesses, the respondent/wife has not mentioned that the Nil@fr RegistrarlNikah KhwAn is to be summoned through process of the Court, therefore at this stage of the proceedings, the said witness could not be summoned through the process of the Court and that respondent/wife should produce him on her own.

7.The pleadings of both the parties would -p reveal that they have seriously controverted the factum of Nil{ah, therefore the epitome and nucleus of their dispute is the factum of execution of Nil@h or Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

\-/ otherwise and as such the Nitffih Regi strarlNikah Khwan is an important witness who could testiff one way or the other to settle this issue and thus when the respondent/wife showed his inability to produce him in the Court, then she has rightly approached the learned Judge Family Court for summoning him as her witness for a just and fair decision between the parties and accordingly, the learned Judge Family Court by exercising his jurisdiction in a proper and reasonable manner has passed a legally justified order, therefore no exception could be taken of the same.

8.It may be noted that under section 17 of The West Pakistan Family Courts Act, 1964, neither the provisions of The Civil Procedure Code, 1908 nor of The Qanun-e-shahadat Order, 1984 are applicable to the proceedings of the Judge Family Court and as such it is within domain and power of a Judge Family Court to regulate its proceedings through his own procedure. fn the case of Muhammad Tabish Naeem Khan vs. Additional District Judse- Lahore and otherp reported as 2014 SCMR 13.65, the Hon'ble 0 Apex Court has held that 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 Family Courts Act, 1964 to strike off the Abdul Sabooh/* (D.B.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

\-, defence of the petitioner, when he failed to file the written statement, thus it (decree) should be ignored;

suffice it to sav that the F amily Court is the quasi judicial forum, which draw and follow its own rovl ure should

asainst the DnnclDles of fair hearine and trial. thus if a defendant of a family matter, who is duly served; and especially the one who appears and disappears and also does not file his written statement within the time allowed to him by the Court, the Court shall have the inherent power and ample power to proceed ex parte against him, to strike off the defence and to pass an ex parte decree in line with the principles as ate enunciated by the Civil Procedure Code. Similarly, in the case of Lt. Col. Nasir Malik vs. Additional District Judse. hore and others reported as 2016 SCMR 1821, the Hon'ble Apex Court has also held that as far as the contention of the learned counsel for the petitioner that enhancement in maintenance allowance cannot be sought through an application under section 151, C.P.C. but through a separate suit is .(p concerned, suffice it to sav that the isions of P are not to sensu li le to West Famil Act

t964, as such the Familv Court was comoetent to adoot Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad ljaz Khan

\, its own procedure, therefore, the objection raised by the learned counsel is misconceived.

9.During the course of arguments, learned counsel for the petitioner was also confronted that the impugned order is an interim order passed by the learned Judge Family Court during the course of its routine proceedings, therefore in view of the clear bar contained in section 14 (3) of The Act of 1964, the Legislatures have specifically barred the filing of an appeal or a revision against an interim order passed by the Judge Family Court, then how the petitioner could be allowed to challenge the same before this Court through the instant writ petitior, then he was unable to wriggle out of this legal impediment. For ready reference, Section 14 of The Act of 1964 is reproduced as under:-

"l/f l!trOab.-(l) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable: a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and status of a District ,9 Judge or an Additional District Judge;

b) to the District Court, in any other case.

(2)No appeal shall lie from a decree passed by a Family Court:

a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad lbrahim Khan Hon'ble Mr. Justice Muhammad liarz Khan

v section 2 of the Dissolution of Muslim Marriages Act, 1939;

b) for dower or dowry not exceeding rupees thirty thousandl

c) for maintenance of rupees one thousand or less per month.

(3)No appeal or revision shall lie asainst an interim order passed by a Familv Court."

The above said provision clearly indicates that the Legislatures in a very clear term have declared that no appeal or revision could be entertained against an interim order passed by a Judge Family Court, therefore the petitioner could not be allowed to challenge the same before this Court through the instant writ petition. In the case of Haii mmad Latif vs. Muhammad Sharif an_d others reported as 2021 SCMR 1430, the Hon'ble Apex Court has held that there is no cavil to the proposition that subsection (2) of section 28 of the Act, 2009 bars filing of appeal against an interim order and there are also no two views that in cases where a statute specifically bars the remedy of appeal against an interim order then such statutory command ordinarily & should not be circumvented by allowing parties to invoke writ jurisdiction. Similarly, in the case of President. All Pakistan Women Associationr Peshawar Cantt. vs. Muhammad Akbar ltwan and ers reported as 2020 SCMR 260, it was also (D.B.) Hon'ble Mr. Mohammad Khan Abdul Sabooh/* Hon'ble Mr. Justice Muhammad liaz Khan

v held that when the Statute does not provide the right of appeal against certain orders, the same cannot be challenged by invokirg the constitutional jurisdiction of the High Court in order to gain a similar objective.

Where a Statute has expressly barred a remedy which is not available to a party under the Statuta, it cannot be sought indirectly by resort to the constitutional jurisdiction of the High Court. The Hon'ble Apex Court has also held in the case of Sved Saehir Ahmad Naqvi vs. Province of Sindh Throush Chief Secretarv. S&GAD. Karachi and another reported as 1996 SCMR 1165, that the statute excluding a right of appeal from the interim order cannot be passed by bringirrg under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders.

10.Another aspect of this case is that through the instant writ petitior, petitioner has prayed for issuance of writ of certiorari to declare the impugned v order passed by the learned Judge Family Court as illegal and to set aside the same. For maintaining a writ petition against an order passed by a Court of law, a writ petitioner is required to establish the lack of Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

v/ jurisdiction or excess of jurisdiction or improper exercise of jurisdiction vested in it, however, learned counsel for the petitioner even did not touch this aspect of the case what to speak of establishing the same, therefore the desired writ could not be issued at the whims and wishes of the petitioner/ husband. In the case of Amiad Khan vs. Muhammad lrshad (deceased) throueh LRs reported as 2020 SCMR 2155, the Hon'ble Apex Court has held that it is by now a settled principle of law that the High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower Courts unless the same suffers from jurisdictional , factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with the law. If none of these errors is presetrt, the High Courts must not exercise their constitutional jurisdiction to -& interfere with the findings of lower Courts merely because it reached a different conclusion as to the controversy than the latter. Similarly, in the case of Mst. Mobin Fatima vs. Muhammad Yamin and 2 others reported as PLD 2006 Supreme Court 214, the Hon'ble Apex Court has also held that the High Abdul Sabooh/* (D.B.) Hon'ble Mr. Justice Mohammad lbrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

Court, no doubt, in the exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere if any wrong or illegal conclusions are drawn by the Courts below which are not based on facts found because such an act would amount to an effor of law which can always be corrected by the High Court.

1L. For what has been discussed above, the instant writ petition being bereft of any merit is hereby dismissed in limine

Announced Dt: 27.07.2022

JUDGE

E

Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad lbrahim Khan Hon'ble Mr. Justice Muhammad liaiz Khan