3. Mr. Hassan Afridi, Advocate for the petitioner contended
with force that the impugned judgment and decree suffers from
the vice of gross misreading and non-reading of evidence and
that the learned trial Judge was not empowered to close the
evidence of the petitioner and deprive him of the right of
defence. The submissions of the learned counsel are not tenable.
No doubt it is true that there is no express provision in West
Pakistan Family Courts Act (XXXV of 1964) authorizing a
Family Court to close the evidence of a party. There is also no
provision to the effect that a party's evidence shall not be closed
even if that party fails to produce evidence, without sufficient
cause, despite having availed of several opportunities to do so.
The Family Court can close the evidence of a party who fails to
adduce evidence without sufficient cause as held in Syed
Shaukat Abbas v. Mst. Bushra Rani and another PLD 1982 Lah.
281. Provisions of the Act, which is a special law enacted to
provide facility to the litigants in family matters. The role of the
Family Court is not merely adversely but it is also inquisitorial,
therefore, it is within its power to pass any order which may
promote the ends of justice, Family Court is empowered to take
all steps which it deems necessary to ensure that substantial
justice is done. Provisions of C.P.C. are not applicable in sitricto
senso by virtue of section 17 of the Act and Judge, Family Court
is competent to regulate its own proceedings as the Act does not
make provisions for every conceivable eventuality and
unforeseen circumstances. In Khalil-ur-Rehman Bhutta v. Razia
Naz and another 1984 CLC 890 the following observations were
made:--
"(6) As regards the contention that the petitioner's
defence could not have been struck off, it is to be
seen that despite having been, given opportunities,
he did not file the written statement. It is true, that
except sections 10 and 11, C.P.C., which have been
made applicable to a Family Court, under section
17 of the Act the rest of the C.P.C. on its own force,
does not apply to the proceedings before it. It is, however, to be kept in mind that the Family Courts
Act, dots not provide for every conceivable
eventuality and unforeseen circumstance. Though it
is a forum of limited jurisdiction yet it has to
regulate its own proceedings. A situation may crop
up, before a Family Court that a defendant
persistently defaults in submitting his written
statement and acts contumaciously, as happened in
the instant case. Will the Family Court be
powerless to proceed against such a litigant? If the
Court is held to be denuded of authority, to pass a
punitive order against such a defaulter that would
result in paralysing its function. It must be
remembered that the Family Courts Act has been
enacted with the object of expeditious disposal of
the disputes relating to the family affairs. Thus, for
the orderly dispensation of justice under the Act, in
the case of a contumacious default of a defendant,
to file the written statement, the Family Court will
be well within its authority to make an order, in the
nature of one envisaged by Order VIII, rule 10,
C.P.C. and deprive him of his right to file the
written statement. I think that the learned trial
Court proceeded against the petitioner on a similar
line and by using the expression as to the striking of
his defence, it simple meant to take away his right
of filing written statement. Anyhow, even if there is
some betrayal of over-stopping by the trial Court in
view of the conduct of the petitioner I do not feel
persuaded in this behalf, to strike down the order
dated 28th February, 1983."
2004 CLC 703
Used in Judgment of:
Lahore High Court
WP- Family Law
700-10
