The Code is framed on the scheme of providing generally for the mode in which the High court is to exercise its jurisdiction, whatever it may be while, specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the code is not to apply.

11. In this regard although the Civil Procedure Code 1908 (CPC) is not applicable to the suits filed under West Pakistan Family Courts Act, 1964, however High Court in its extra ordinary Constitutional jurisdiction can recourse to CPC as an enabling tool. In this regard reference is made to the decision of Hon’ble Supreme Court of Pakistan in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) wherein it was held; 

“The Civil Procedure Code regulates civil proceedings. The nature of the proceeding does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding. As regards application of the provisions of the Code in proceedings before a High Court, their Lordships of the Privy Council in Sabitri Thakurani v. Savi (1) observed: “The Code is framed on the scheme of providing generally for the mode in which the High court is to exercise its jurisdiction, whatever it may be while, specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the code is not to apply.” The underlining* in the above quotation is mine. The words underlined* clearly indicate that the provisions of the Code, other than the specially excepted ones, shall apply in the exercise of the High Court’s jurisdiction in a civil matter, whatever may be the nature of that jurisdiction”. 

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

WP- Family Law
19091-09

2014 LHC 5328