Before Mazhar Alam Khan Miankhel and Musarrat Hilali, JJ
MUHAMMAD SAAD ALI and 2 others—-Petitioners Versus Mst. MARYAM KHAN and 2 others—-Respondents
Writ Petition No.864-P of 2013, decided on 13th May 2013.
(a) Administration of justice— —-Cases to be decided on merits and technicalities avoided.
(b) West Pakistan Family Courts Act (XXXV of 1964)— —-S. 5, Sched., Ss.9 & 17—Constitution of Pakistan, Art.199—Constitutional petition—Power of Family Court to review its own order—Scope—Suit for recovery of dower, maintenance allowance and dowry articles—Defendant’s right of defense was struck off by the Family Court due to non-filing of written statement—Application for review filed by defendant was dismissed as provision of review had not been provided in the Family Courts Act, 1964—Validity—Family Court had every jurisdiction to adopt any procedure/law to meet the situation to do the substantial justice between the parties and to secure the ends of justice—Family Court could adopt every procedure/law in the furtherance of dispensation of justice unless the procedure/law going to be adopted was specifically prohibited—Family court could not refuse to exercise the jurisdiction on the ground of non-availability of the provision of review—Petitioner was allowed to file written statement and case was remanded to trial court to proceed afresh—Constitutional petition was allowed.
(c) Administration of justice— —-Recourse to general law is permissible when the provisions of special law are silent on a particular point except where the provisions of general law are inconsistent with the provisions of a special law.
Muzaffer Ali v. Mst. Mehrun Nisa and 2 others 1989 CLC 1805; Muhammad Sarwar v. Sughran Bibi and 2 others 1996 MLD 1057 and Javed Bashir v. Judge, Family Court, Lahore and another 2003 MLD 814 rel.
Adil Majeed Khan for Petitioners. 2014 CLC 715
Muhammad Ijaz Khan Sabi for Respondent No.1. 2014 CLC 715
ORDER 2014 CLC 715
MAZHAR ALAM KHAN MIANKHEL, J.— Through this constitutional petition, the petitioners have prayed for setting aside the impugned orders dated 30-1-2013 and 26-3-2013 of learned Judge Family Court/Civil Judge-VIII, Peshawar and to allow the petitioners an opportunity to file written statement.
Precise facts of the case are that the respondent/plaintiffs filed a suit against the petitioners/defendants for recovery of dower, maintenance allowance and dowry articles on 19-11-2012. During proceedings before the trial Court, the case was fixed for submission of written statement of the defendants. However, the defendants could not file their written arguments despite several adjournments and thus their defense was struck off on 30-1-2013. The defendants submitted application for review of the said order dated 30-1-2013 but the same was dismissed vide order dated 26-3-2013.
The learned counsel appearing on behalf of petitioners contended that the impugned orders are illegal, against the law and are not maintainable. The learned counsel next argued that on 30-1-2013 adjournment was granted with the direction to submit a written statement on the next date and not within three days. The learned counsel argued that the matrimonial life of the parties is at stake and not providing an opportunity to file written statements would cause irreparable loss to them and lastly argued that it is a consistent view of the superior Courts that the lis should be decided on merits and technicalities should be avoided.
As against that, learned counsel for the respondents emphatically opposed the writ petition and contended that several opportunities were given to the defendants for filing written statement but they deliberately delayed the proceedings and the trial Court was left with no option but to strike off their defense. He next contended that provision of review has not been provided in the Family Courts Act, 1964, so, the same cannot be exercised by the Family Court and the decision is in accordance with the law. The learned counsel requested for dismissal of the petition.
Arguments of both the parties were heard and material available on the file perused.
The record reveals that the plaintiff/respondents filed a suit for recovery of dower, maintenance and dowry articles on 19-11-2012. In the preamble of the Family Courts Act, 1964, the legislature intended to conclude the family suits expeditiously. However, it is settled law of the land that the cases should be decided on merits and technicalities should be avoided.
No doubt provision of review is not provided in the Act, 1964 ibid and similarly provision of striking of defense is not there and the provisions of C.P.C. and Qanun-e-Shahadat Order, 1984 have also not been made applicable. But if a situation arises during the proceedings in a case before the Family Court, then whether it would be helpless to meet the situation. The answer to this question would be plumb No. It is not the mandate of law to make the Court helpless. The Family Court has got every jurisdiction to adopt any procedure/law to meet the situation to do the substantial justice between the parties and to secure the ends of justice. Since the Act, 1964 ibid is not comprehensive enough to meet every conceivable eventuality. So, the Family Court can adopt every procedure/law in furtherance of the dispensation of justice unless the procedure/law going to be adopted is specifically prohibited. The Family Court when came across the situation of failure of the defendants to file written statement, borrowed the provision of striking off defense from the C.P.C. and passed an order in this regard, then the said Court while facing the situation of review of the same can take shelter of non-availability of the provision of review in the Act, 1964 ibid? No. The Family Court cannot refuse to exercise the jurisdiction on the ground of non-availability of the provision of review. It is the principle of law that recourse to general law is permissible when the provisions of special law are silent on a particular point except where the provisions of general law are inconsistent with the provisions of a special law. Reference in this regard can be made to the case of Muzaffer Ali v. Mst. Mehrun Nisa and 2 others 1989 CLC 1805), Muhammad Sarwar v. Sughran Bibi and 2 others 1996 M L D 1057) and Javed Bashir v. Judge, Family Court, Lahore and another 2003 MLD 814). So, the circumstances have no hesitation to hold that the jurisdiction exercised by the Family Court is not in accordance with the mandate of law, hence the impugned orders are liable to be set aside.
Therefore, we think it imperative to provide an opportunity for the defendants to file a written statement. Accordingly, we allow this writ petition by setting aside the impugned orders at the cost of Rs.5000 to be paid to the plaintiff/respondent No.1. The case is sent back to the learned trial Court to proceed with the case afresh. The defendant/ petitioners are directed to file their written statement within a week in the trial Court after receipt of the file. Record of the case be sent forthwith to the Court concerned who is supposed to decide the case at its earliest but not later than two months.