West Pakistan Family Courts Act (XXXV of 1964) authorizing

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