Definition of “actionable claim”

“The definition of “actionable claim” in the TPA is strictly and exclusively relatable to the operative provisions of Chapter VIII of that Act, which by virtue of Sections 130 to 137 thereof inter alia, prescribes the requirements and the broad mechanism for the transfer and the assignment of the “actionable claims” so defined in section 3. It has no application beyond the Act even if any general concept emerges on account of the expression, it is restricted to the law it forms part and cannot be stretched to apply to any other law of the land, including the Family Courts Act, 1964, thus the interpretation of entry No.9 ibid as provided by Muhammad Akram v. Mst. Hajra Bibi and 2 others (supra) is the correct explication of law, which is hereby approved. However, adding thereto, it may be held that if the ratio of Nasrullah dictum (supra) which is entirely and solely founded on the noted concept / definition is taken to be correct, than a suit for Specific Performance, declaratory suits of any nature, or any other civil legislation between a wife and husband shall be amenable to the special jurisdiction of the family Court, which is not intent of the law. Because according to the literal approach of reading a statute, the statue has to be read literally by giving the words used therein, ordinary, natural and grammatical meaning. Besides, the addition and subtraction of a word in a statute is reading in and reading down may be pressed into service in certain cases; thus when in Entry No.9 ‘actionable claim’ has not been provided by the legislature intent and the rules of interpretation to add this express to the clause / entry. ”

PLD 2011 Supreme Court 260

Used in judgment of:
WP- Family Law
3045-14

Student/respondent in which he is studying and also considered the status of appellant

“- - - - - It is clear that at that time minor was of about 8 years whereas, now he is 17 years old and is getting education in high school in higher class. Undoubtedly, now much more expenditures took place than those were earlier. Although respondent has submitted that he is a poor man and cannot bear expenditures at the rate claimed by respondent/minor in his plaint i.e. at the rate of rupees five thousand per month but learned trial court has not believed the averment of plaint and has evaluated available evidence led by the parties and has considered the fact of class of student/respondent in which he is studying and also considered the status of appellant Mohammad Bakhsh and has fixed maintenance allowance Rs.2500/-. Respondent is a grown up boy and needs more amount than it was fixed 7/8 years back. Besides, this value of daily used items has been increased incredibly during this period which are to be considered while fixing the maintenance allowance. Further more, appellant is father of respondent Mohammad Junaid minor and he is duty bound to bear expenditures of minor in education, health and other arrears of life of minor. Learned trial court was justified in enhancing the amount of maintenance allowance. Learned counsel for the appellant has failed to high-light any misreading or nonreading of evidence by the learned trial court. 6. The upshot of above discussion is that impugned judgment and decree is apt to the facts and circumstances of the case which is upheld and appeal being devoid of any force is hereby dismissed.”

The above findings are supported by the case law on the subject i.e. cases titled “Ejaz Ahmed Vs. Judge, Family Court and 5 others” (2005 CLC 1913), “Muhammad Ali Vs. Judge Family Court, Depalpur and 2 others” (2010 YLR520), “Malik Ahmed Nawaz Awan Vs. Fariha Malik and another” (2011 YLR 435), “Muhammad Iqbal Vs. Mst. Nasreen Akhtar” (2012 CLC 1407) and “Muhammad Islam Vs. Mst. Rashdah Sultana and 4 others” (2013 CLC 698).

WP- Family Law
8753-15

Shia husband without reading “Segheas”

(2014 MLD 254), it was held that the divorce pronounced by a Shia husband without reading “Segheas” will not be effective against the wife.

Used in Judgment of:

WP- Family Law
26026-14

No conflict between provisions of Civil Procedure Code, 1908 and provisions of Family Courts Act, 1964.

“Applicability of provision of C.P.C. in proceedings before Family Court. Provisions of Civil Procedure Code, 1908, would not be applicable in stricto senso to proceedings before Family Court; principles of Civil Procedure Code, would, however, be attracted specially when there was no conflict between provisions of Civil Procedure Code, 1908 and provisions of Family Courts Act, 1964.”

1999 CLC 81

Used In Judgement of:
2017 LHC 1486

Writ Petition-Family-Maintenance
6955-17

Leave the country of dispose of his property

“Application under O.XXXVIII, R.5, CPC could only be granted when sufficient material was on record that defendants were planning to leave the country with a view to defeat the recovery of plaintiff’s claim. No such circumstance existed in the present case. Vague allegation about intentions that defendant would leave the country were not sufficient. Definite evidence was required to be led before the Court in support of such contentions. Court was required to satisfy itself that defendant was about to dispose of his assets, only then such order could be made. Merely by establishing a prima facie case attachment before judgment could not be granted unless necessary ingredients of Order XXXVIII, R.5, C.P.C had been established. Attachment before judgment was not to be lightly ordered and Court had to satisfy itself before making such order whether defendant was about to leave the country of dispose of his property with a view to frustrate or delay execution of decree that could be passed against him.”

2005 CLC 1270

Used In Judgment of:
2017 LHC 1486

Writ Petition-Family-Maintenance
6955-17

Suit for enhancement of maintenance

On the issue whether a suit for enhancement of maintenance is maintainable under the Schedule, the answer is that the same is maintainable. The Schedule provides for the matter over which the family court should have jurisdiction. Maintenance is provided at serial No.3. As such there is no bar on filing a suit for enhancement of maintenance. There are bound to be changes in the circumstances and changes in the requirements of the children. Naturally, as the children will grow their needs will also grow. Reliance is placed on a case titled Arab Mir Muhammad Vs Mst. Iram Iltimas and 4 others (1999 CLC 1668). It is noted that this is an unrealistic approach that the maintenance allowance should remain fixed throughout the growing period of the minor or that the 5% increase should be considered sufficient. A father is legally bound to maintain the minor in terms of the requirement of the minor and the cost of living.

2012 CLC 1407

Used in the judgment of:

2018 LHC 1938

Trial Court and First Appellate Court are set aside

“After hearing the learned counsel for both sides and taking into consideration the fact that the property was originally owned by the Panjnad Textile Mills, therefore, it was incumbent upon the plaintiff/petitioner to have impleaded it as party and in absence of the original owner decree passed shall cause injustice to it and such order would not be executable against a person who was not a party to the proceedings. Therefore, we accept the request of the learned counsel for the petitioner. As a result whereof petition is converted into appeal the impugned judgment dated 1-3-2000 as well as judgments dated 2-2-1998 and 15-7-1996 passed by the trial Court and First Appellate Court are set aside and permission is accorded to the petitioner to withdraw the civil suit and file fresh suit on the same cause of action in accordance with law. Parties to bear their own costs”

2006 SCMR 913

Used in Judgment of:
WP- Family Law
11914-15

Family Court decreeing the suit

“Taking up the issue of dowry articles, again the evidence of the appellant was neither contradicted nor rebutted and the list of article as well as value of the articles shown in it must be accepted on its face value. Indeed reasons recorded by the trial Court in this behalf do not appeal to mind and assessment of value of the articles shown in it must be accepted on its face value. Indeed reasons recorded by the trial Court in this behalf do not appeal to mind and assessment of value of the articles in the sum of Rs.4,00,000 appears to be artificial, whimsical and arbitrary. On the other hand calculation made by the appellate Court accepting the claim of the appellant in the sum of Rs.9,55,038 is evidently justified and warranted by law. It was none of the business of the High Court in writ jurisdiction to substitute its own findings for the findings recorded by the court of appeal after due appraisal of evidence. We would, therefore, set aside the judgment of the High Court as well as that of the Family Court decreeing the suit in the sum of Rs.4,00,000 and restore the judgment of the appellate Court accepting the claim of the appellant, as pleaded in the suit.”

PLD 2006 Supreme Court 457

WP- Family Law
5855-13

Recovery of dower amount.

(2001 SCMR 1323), it has been held by the Hon’ble Supreme Court of Pakistan that where the husband participated in the proceedings but did not file written statement as directed, the Family Court is competent to strike off defence of the husband and pass the decree for recovery of dower amount.

2016 LHC 3015

Writ Petition-Family-Dowry Articles
6867-16

Fixation of an amount to be paid by the said organization to the minors

Abdul Majeed v. Additional District Judge, Faisalabad and 4 others (PLD 2012 Lahore 445) seeks indulgence of this Court for issuing direction to the Government organization viz Bait-ul-Maal for fixation of an amount to be paid by the said organization to the minors so as to reduce his miseries and of the minors as well. Accordingly with the assistance of learned Law Officer, the representative of Bait-ul-Maal was summoned, who informed the Court that the Government has not made any legislation as advised by this Court in reported judgment, however, undertakes that if the Court will fix the honoraria to be paid to the minors, the department will obey the order and there is no prohibition in their Rules and Regulations to do so, but specific rule in this regard has not been framed.

2016 LHC 4541

WP- Family Law
20482-16

Civil Procedure Code have been excluded by section 17 of the Family Court Act, 1964,

“The provisions of the Civil Procedure Code have been excluded by section 17 of the Family Court Act, 1964, to proceedings under it. And it has been consistently held that such provisions are not stricto sensu applicable to the proceedings before the Family Court. However, as the Family Court Act is not an all-encompassing legislation and the principles of certain provisions of the Code of Civil Procedure have at times been invoked when necessary to give effect to the Family Court Act.”

PLD 2011 SC 221

Writ Petition-Family-Dowry Articles
6867-16

Responsible for maintaining their grandchildren

“Although leave was not granted to examine this point we permitted the learned counsel to advance the same so as to clarify the legal position. No doubt grandparents, if affluent, will be obliged to maintain grand children if they are destitute. But the command would issue in this behalf when there is no other nearer relation and/or more responsible in this behalf. Accordingly, when a specific proposition was put to the learned counsel in this behalf he could not advance his argument any further. The question posed was: whether, in presence of the father the grandparents, whether on the paternal or on the maternal side, will be more responsible for maintaining their grandchildren as compared to the father's duty to maintain his own children learned counsel without hesitation admitted that the priority-wise it would be the duty of the father.”

PLD 1991 Supreme Court 543

WP- Family Law
15699-14

Delay, defeat or otherwise frustrate any decree that may be made in the suit

“The crucial element must be that the concerned defendant intends to dispose of the subject property with intent to delay, defeat or otherwise frustrate any decree that may be made in the suit. Clearly, such intent would hardly ever been expressly spelt out and in the normal course, must be gathered or inferred from the relevant facts and circumstances. The primary circumstance relied upon by learned counsel for the plaintiff in this regard was the alleged disobedience of the interim orders made in the litigation. However, after reviewing the material and considering the interim orders which have been placed on record, I am not satisfied that such an intent can be clearly spelt out.”

2012 MLD 171

PLD 2017 Lah. 689

Consideration of welfare in determining the question of custody.

“The primary consideration for determining the question of custody is always the welfare of the minor and there could not be an absolute rule and fixed criteria to determine the question of welfare in the same manner in each case rather it being a mixed question of law and fact is decided in the facts of each case and consequently the factors having only social importance or the desirability of the father or mother to retain the custody of minor, would not overwrite the consideration of welfare in determining the question of custody.”

PLD 2003 Supreme Court 877

Writ Petition No.8676 of 2015.

Right of petitioner to interim relief

As the said Ordinance has taken away the right of petitioner to interim relief, learned counsel submitted that this was a ground which entitled the petitioner to prosecute a writ petition despite the pendency of the proceedings on the District Court. The argument is misconceived because the writ jurisdiction of the superior Courts cannot be invoked in aid of injustice and in order to defeat the express provisions of the statutory law.

1976 SCMR 450

2018 LHC 1173

Applicability of provision of C.P.C. in proceedings before Family Court

Pakistan Family Law Case Laws

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