MUHAMMAD ARIF VS DISTRICT AND SESSIONS JUDGE, SIALKOT
2011 SCMR 1591
[Supreme Court of Pakistan]
Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ
MUHAMMAD ARIF and others---Petitioners
Versus
DISTRICT AND SESSIONS JUDGE, SIALKOT and others---Respondents
C.P. No. 695-L of 2011, decided on 17/06/2011.
(On appeal against the judgment dated 28-3-2011 passed by Lahore High Court, Lahore in W.P. No. 6370 of 2011).
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 2(d). & Sched. Item No.8 (Dowery)---"Party"---Suit for recovery of dowery articles-Contention that wife was competent to file such suit only against her husband and not against the father, mother and brother of her husband,, was baseless---Provisions of West Pakistan Family Courts Act, 1964 and its Schedule in item No.8 contains "dowery.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 2(d)---"Party"---Definition---Scope---Definition as given in S.2(d) of West Pakistan Family Courts Act, 1964 has two parts i.e. (a) any person whose presence as such is considered necessary for the proper decision of the dispute and (b) any person whom Family Court adds as "party" to such dispute--Definition of word "party" is though not very different from the one obtaining under C.P.C., yet it is comparatively more liberal and extensive than the proverbial "necessary or proper party" of a civil suit--Principles elucidated.
The term "party" has been defined in Section 2 (d) of the Family Courts Act, 1964.
This definition has two parts which are serialized as (a) and (b).
(a)any person whose presence as such is considered necessary for the proper decision of the dispute.
AND
(b)any person whom the Family Court adds as a party to such dispute.
The nature of family disputes and jurisdiction of the family court is special as well as peculiar. The West Pakistan Family Courts Act 1964 was therefore legislated "to make provisions for the establishment of Family Courts for the expeditious settlement and disposal of the disputes relating to marriage and family' affairs and for matters connected therewith". It was in this perspective that the definition of the term 'party' was specifically codified in section 2 (d) in the Act. This definition is though not very different from the one obtaining under C.P.C. yet it is comparatively more liberal and extensive than the proverbial 'necessary or proper party' of a civil suit.
In West Pakistan Family Courts Act, 1964 the term 'party' has been defined in the contextual necessity of "proper decision of the dispute"; the requirements of which determine its meaning and scope. In addition to the 'necessary' or 'proper' parties as in a civil suit, other persons "considered necessary" can be impleaded as parties in the family suit. Part (a) gives the deciding choice to a plaintiff to implead "any person whose presence as such is 'considered necessary for a proper decision of the dispute". The words are clear and need no interpretation. Part (b) relates to Family Court's discretion whereby in the exercise of its powers "a person whole the Family Court adds as a party to such dispute". The powers are akin to the C.P.C. powers under Rule 10 of Order I, C.P.C. but without its technical or restrictive constraints. The power of the Family Court is not however absolute or without limitations. It is controlled by the word 'such dispute'; outside which or unconnected with which or unrelated thereto, no person can be added by the Fancily Court.
The definition of the 'party' in the Act is absolutely clear that a family suit cannot be restricted inter se the spouses only i.e. one plaintiff against one defendant when others are considered necessary for proper decision of the dispute or require addition to such dispute. A family suit is not a sparring match in a wrestling ring where one wins and the other loses or gives up on injury. The Act does not relegate a family suit to a merciless war to bring defeat on one and victory on the other in the judicial battle field. The Act instead visualizes attainment of a social and family harmony by sparing the spouses humility of an outright defeat or loss and the life long acrimony between them for generations. The Family Court is required by law to use the mandatory pre and post trial reconciliation provisions meaningfully and purposively and to endeavour achievement of settlement/resolution/decision of the dispute(s) between die spouses in a manner as to enable them to pursue a peaceful and productive post-dispute life either matrimonially together or otherwise as former spouses but without wrangling on the children or other issues.
Such a result can only be achieved if other persons who for some credible reason are considered necessary or proper or relevant or related to the dispute and its decision are also parties in the suit. The clear examples are the suits for the recovery of dowery items, dower property or personal property/belongings (of wife) alleged to be in the possession or use of persons other than the husband or wife. Such persons will per force need impleadment or addition as parties for a comprehensive, final, effective and proper decision of the dispute(s) and enforcement of the decree(s). Similarly in the matter of custody of minor children, persons having custody of the minors have to be parties to the family suit. Non-impleadment of such persons may result in the frustration of proper 'adjudication of the dispute by the Family Court which also enjoys the inherent power to delete or strike out any party; un-necessary or improper or unconnected to the cause or the dispute and the suit.
Another question is should part (a) and part (b) of the definition 'party' be read in conjunction because of the word 'AND' between them or should 'and' be read disjunctively as 'or'.
When the sense so requires 'and' may be read as 'or', and 'or' read as 'and' "in ordinary use the word "OR" is disjunctive while word 'AND' is conjunctive. However, the word 'or' and the word 'and' are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the court, through construction, may change one to the other. This cannot be done it the statutes' meaning is clear, or it' the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions to carry out the intention of the legislation it may be necessary to read "and" as "or" and vice versa.
Two parts (a) and (b) of the definition 'party' though look interconnected by word 'and' yet analysis of their respective scopes speak of their independence. Because each of these two parts comprise of self- contained provisions which are complete in all respects. Also that each part begins with the words "any person", which grammatically provide a clear demarcating line between the two. As such Part (a) and Part (b) are disjunctive in scope. Word "and between the two parts is to be read as "or". The conjunctive reading of (a) and (b) will lead to unreasonable difficulties that may defeat the legislative meaning flowing from the scheme of the West Pakistan Family Courts Act, 1964; intent of which appears to be otherwise than to conjunct part (a) and (b) in terms of the definition of 'party'. Reading (a) and (b) conjunctively will also restrict the scope of the definition. It will cause unnecessary complications and delays in the trial. A person 'considered necessary' and thus impleaded by the plaintiff, will need Court's permission or order to be added as a party, though such permission or order is not required under the statute. Further that such an interpretation will render part (a) as redundant and ineffective; intent for which cannot be attributed to the legislature.
It will also keep the related and necessary persons out of the trial thereby preventing effective and binding adjudication. Such restrictive reading will defeat the purpose, meaning, intent, subject matter and context of the statute and will lead to unjust, oppressive and absurd consequences destructive to the 'dispute resolution' or `dispute settlement' or `dispute adjudication'.
Crawford's "Statutory Construction; Interpretation of Statutes" and Maxwell on the Interpretation of Statutes ref.
(c) Civil Procedure Code (V of 1908)---
----O. I, Rr. 1, 3, 6, 7, 10 & 13---Parties to suit---Object of O.I, Rr. 1 & 3, C.P.C.-"Necessary party" and "proper party "---Concept---Objection to joinder, misjoinder or non joinder must be taken at the earliest, failing which as per O. I, R.13, C.P. C., such objection will be deemed to have been waived---Principles.
Rules 1 and 3 of Order I, C.P.C. are enabling and permissive rules admitting of other amplifications as well. Joinder of several persons as co-plaintiffs or co-defendants in a suit under C.P.C. rests upon the right of relief arising out of the same act or transaction or series of acts or transactions involving common questions of law and facts. The general principle of law is that where persons are jointly entitled or liable, they must be made parties to the suit as otherwise the suit may not result into an effective, enforceable or binding decree. It is not necessary that each plaintiff or defendant must be equally interested in the entire subject matter of the suit. The object of Rules 1 and 3 of C.P.C. is to avoid multiplicity of suits. To attain this object, the Court also possesses the power to add defendants (Rules 6, 7 or 10) irrespective of their limited interest in the subject matter of the suit (Rule 5). So much so that a plaintiff in doubt as to the persons against whom he has or could have the right of relief; wholly or partially, been allowed the right under Rule 7 to implead/join them as defendants "in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties". The object of the law is that even a doubt should not be permitted to hinder an effective adjudication of a trial. Similarly Rule 10 empowers the Court to substitute or add a party in the suit or to strike out an improperly joined plaintiff/defendant. The rule therein is that "the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added". This is to obtain complete and effective decision of all the questions/issues arising from a suit and importantly to prevent separate actions on the same cause or causes. A party who ought to have been joined is a 'necessary party' and one whose presence is necessary for the adjudication of all issues and matters involved in the suit is a 'proper party'. In the absence of a 'necessary party', a suit cannot be proceeded with and a final and binding decree cannot be passed. To pass an effective and binding decree, all questions/issues/matters arising from the suit will need to be adjudicated upon; for which presence of certain other persons before the Court is essential. They have been classed' as the proper parties; whose interest in or against the relief or the subject matter of the suit may be marginal, nominal, limited or none. The presence of proper parties before the Court is also to prevent frustration or embarrassment of the suit by containing investigations/inquiries on the same controversies in more than one trial. An objection to their joinder, mis-joinder or non-joinder must be taken at the earliest. Failing which as per Rule 13 thereof such objection will be deemed to have been waived.
(d) Interpretation of statutes---
----Use of words "and" and "or"---Principles.
When the sense so requires 'and' may be read as 'or', and 'or' read as 'and'. "In ordinary use the word "OR" is disjunctive while word 'AND' is conjunctive. However, the word 'or' and the word 'and' are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the court, through construction, may change one to the other. This cannot be done if the statutes' meaning is clear, or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions.
To carry out the intention of the legislature it may be necessary to read "and" as "or" and vice versa.
Crawford's "Statutory Construction; Interpretation of Statutes" ref.
(e) Interpretation of statutes---
----Intention of legislature---To carry out the intention of legislature it may be necessary to read "and" as "or" and vice versa.
Maxwell on the Interpretation of Statutes ref.
(f) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 2(d) & Sched. Item No. 8---Constitution of Pakistan, Art .185(3)---Suit for recovery of dowery articles by wife---Impleadment of father, brother and mother of husband as party by wife---Petitioners (father, brother and mother) never objected to their impleadment in their written statement before the Family Court or in their appeal before the first appellate court or in the constitutional petition before the High Court---Question of jurisdiction of Family Court was also not raised before any of the courts and petitioners fully participated in the suit trial, filed their appeal and then a constitutional petition in the High Court---Petitioners, in circumstances, were debarred from claiming such a ground (objection to the impleadment) for the first time before the Supreme Court-Petition for leave to appeal was dismissed.
M. Iftikhar Shah Advocate Supreme Court for Petitioners.
Malik Amjad Pervaiz, Senior Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Respondent No.2.
Date of hearing: 17th June, 2011.
ORDER
MUHAMMAD SAIR ALI, J.---Respondent No.2 filed a suit for recovery of the dowery articles against her husband Muhammad Wajid (who is not a petitioner in the present leave petition) and petitioners Nos.1 to 3 respectively being her husband's father, brother and mother. The suit was decreed by the learned Family Court Judge on 8-11-2010. Appeal filed by all the tour defendants was dismissed on 9-2-2011 by the learned First Appellate Court. Whereafter the constitution petition in the High Court was tiled by the suit defendants Nos. 2, 3 and 4 i.e. the present three petitioners only. The defendant No.1 i.e. the husband opted not to tile the constitution petition and thus accepted the judgment and decree against him. This constitution petition was also dismissed in limine through the impugned judgment dated 28-3-2011. Hence the present petition for leave.
2. The only ground urged by Mr. Muhammad Iftikhar Shah, learned Advocate Supreme Court for the petitioners is that respondent No.2 was competent to file her suit only against her husband and not against the present petitioners i.e. the father, mother and brother of her husband. And that the Family Court thus had no jurisdiction to proceed against the petitioners. Malik Amjad Pervaiz, learned Senior Advocate Supreme Court appeared on court notice for respondent No.2.and made his submissions.
3. We have considered the submissions of the learned Advocate Supreme Courts for the parties.
4. The learned Advocate Supreme Court for the petitioners seems to have overlooked the provisions of the West Pakistan Family Courts Act, 1964 and its schedule where item No.8 i.e. "dowdy" was added by the Family Courts (Amendment) Act (Act 7 of 1997). Had the learned counsel bothered to read 1964 Act, he would not have raised such a baseless objection.
5. The term "Party" has been defined in section 2(d) the Family Court's Act, 1964 as under;
"Party" shall include any person whose presence as such is considered necessary for a proper decision of the dispute and' whom Family Court adds as a party to such dispute".
This definition has two parts which for convenience are serialized as (a) and (b):--
(a) any person whose presence as such is considered necessary for the proper decision of the dispute.
AND
(b) any person whom the Family Court adds as a party to such dispute.
6. The nature of family disputes and jurisdiction of the family court is special as well as peculiar. The West Pakistan Family Courts Act 1964 was therefore legislated "to make provision for the establishment of Family Courts for the expeditious settlement and disposal of the disputes relating to marriage and family affairs and for matters connected therewith". It was in this perspective that the definition of the term 'Party' was specifically codified in section 2(d) in this Act. This definition is though not very different from the one obtaining under C.P.C. yet it is comparatively more liberal and extensive than the proverbial 'necessary or proper party' of a' civil suit.
7. Considering that the definition of 'Party' has been codified in the Act of 1964, the word 'Party' has not been so defined in the Civil Procedure Code, 1908. (the provisions of which are inapplicable to the proceedings before a family court). However, rules legislated under the First Schedule of the Civil Procedure Code (Act V of 1908) lay down the principles of law for a civil suit on "PARTIES TO SUITS" under Order 1; the subject matter of which is the joinder, non-joinder, mis joinder, addition, deletion and transposition etc. of parties. Person(s) having right to relief can be the plaintiff(s) and the person(s) against whom such relief is claimable can be joined as defendant(s). Under Rule 1 of Order 1, C.P.C. "all persons maybe joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist .." Similarly in Rule 3 thereof " any persons may be joined as defendants against whom any right to relief in respect of or .. arising out of the, same act or transaction or series of acts or transactions is alleged to exist "
It is well settled that Rules 1 and 3 of Order 1, C.P.C. are enabling and permissive rules admitting of other amplifications as well. Joinder of several persons as co-plaintiffs or co-defendants in a suit under C.P.C. rests upon the right of relief arising out of the same act or transaction or series; of acts or transactions involving common questions of law and facts. The general principle of law is that where persons are jointly entitled or liable, they must be made parties to the suit as otherwise the suit may not result into an effective, enforceable or binding decree. It is not necessary that each plaintiff or defendant must be equally interested in, the entire subject matter of the suit. The object of Rules 1 and 3 of C.P.C. is to avoid multiplicity of suits. To attain this object, the Court also possesses the power to add defendants (Rules 6, 7 or 10), irrespective of their limited interest in the subject matter of the suit (Rule 5). So much so that a plaintiff in doubt as to the persons against whom he has or could have the right of relief; wholly or partially, been allowed the right, under Rule 7 to implead/join them as defendants "in order that the question as to which .of the defendants is liable, and to what extent, may be determined as between all "parties". The object of the law is that even a doubt should not be permitted to hinder an effective adjudication of a trial. Similarly Rule 10 empowers the Court to substitute or add a party in the suit or to strike out an improperly joined plaintiff/defendant. The rule therein is that "the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added". This is 'to obtain complete and effective decision of all the questions/issues arising from a suit and importantly to prevent separate actions on the same cause or causes. A party who ought to have been joined is a 'necessary party' and one whose presence is necessary for the, adjudication of all issues and matters involved in the suit is a 'proper party'. In the absence of a 'necessary party', a suit cannot be proceeded with and a final and binding decree cannot be passed. To pass an effective and binding decree, all questions/issues/matters arising from the suit will need to be adjudicated upon; for which presence of certain other persons before the Court is essential. They have been classed as the proper parties; whose interest in or against the relief or the subject matter of the suit may be marginal, nominal, limited or none. The presence of proper parties before the Court is also to prevent frustration or embarrassment of the suit by containing investigations/inquiries on the same controversies in more than one trial. An objection to their joinder, mis-joinder or non-joinder must be taken at the earliest. Failing which as per Rule 13 thereof such objection will be deemed to have been waived.
8. In 1964 Act, the term 'Party' has been defined in the contextual necessity of "proper decision of the dispute"; the requirements of which determine its meaning and scope. In addition to the 'necessary' or 'proper' parties as in a civil suit, other persons "considered necessary" can be impleaded as parties in the family suit. In our reading of the definition, part (a) gives the deciding choice to a plaintiff to implead "any person whose presence as such is considered necessary for a properdecision of the dispute". The words are clear and need no interpretation. Part (b) relates to Family Court's discretion whereby in the exercise of its powers "a person whom the Family Court adds as a party to such dispute". The powers are akin to the C.P.C. powers under Rule 10 of Order 1, C.P.C. but without its technical or restrictive constraints. The power of the Family Court is not however absolute or without limitations. It is controlled by the word such dispute'; outside which or unconnected with which or unrelated thereto, no person can be added by the Family Court.
9. The definition of the, 'Party' in the Act is absolutely clear that a family suit cannot be restricted inter se the spouses only i.e. one plaintiff against one defendant when others are considered necessary for proper decision of the dispute or require addition to such dispute. A family suit is not a sparring match in a wrestling ring where one wins and the other loses or gives up on injury. The Act does not relegate a family suit to a merciless war to bring defeat on one and, victory on the other in the judicial battle field. The Act instead visualizes attainment of a social and family harmony by sparing the spouses humility of an outright defeat or loss and the life long acrimony between them for generations. The family court is required by law to use the mandatory pre and post trial reconciliation provisions meaningfully and purposively and to endeavour achievement of settlement/resolution/decision of the dispute(s) between the spouses in a manner as to enable them to pursue a peaceful and productive post-dispute life either matrimonially together or otherwise as former spouses but without wrangling on the children or other issues.
10. Such a result can only be achieved if other persons who for some credible reason are considered necessary or proper or relevant or related to the dispute and its decision, are also parties in the suit. The clear examples are the suits for the recovery of dowery items, dower property or personal property/belongings (of wife) alleged to be in the possession or use of persons other than the husband or wife. Such persons will per force need impleadment or addition as parties for a comprehensive, final, effective and proper decision of the dispute(s) and enforcement of the decree(s). Similarly in the matter of custody of minor children, persons having custody of the minors have to be parties to the family suit. Non-impleadment of such persons may result in the frustration of proper adjudication of the dispute by the Family Court which also enjoys the inherent power to delete or strike out any party; un-necessary or improper or unconnected to the cause or the dispute and the suit.
11. Another question is should part (a) and part (b) of the definition 'Party' be read in conjunction because of the word 'AND' between them or should 'and' be read disjunctively as 'or'.
Crawford's "Statutory Construction; Interpretation of Statutes" highlights the basic rule thereto that when the sense so requires 'and' may be read as 'or', and 'or' read as 'and'. Further says that "in ordinary use the word "OR" is disjunctive while word 'AND' is conjunctive. However, the word 'or' and the word 'and' are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the court, through construction, may change one to the other. This cannot be done if the statutes' meaning is clear, or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions.
Maxwell on the Interpretation of Statutes also states that to carry out the intention of the legislature it may be necessary to read "and" as "or" and vice versa like in the Disabled Soldiers Act 1601 which spoke of the property to be employed for the maintenance of "sick and maimed soldiers", but context thereto referred to soldiers who were either sick or maimed, and not only to those who were both.
12. The above reproduced two parts (a) and (b) of the definition 'Party' though look interconnected by word 'and' yet analysis of their respective scopes speaks of their independence. We say this because each of these two parts comprise of self-contained provisions which are complete in all respects. Also that each part begins with the words "any person", which grammatically provide a clear demarcating line between the two. As such Part (a) and Part (b) in our considered view are disjunctive in scope. Word "and" between the two parts is to be read as "or". The conjunctive reading of (a) and (b) will lead to unreasonable difficulties that may defeat the legislative meaning flowing from the scheme of the West Pakistan Family Courts Act, 1964; intent of which appears to be otherwise than to conjunct part (a) and (b) in terms of the definition of `Party'. Reading (a) and (b) conjunctively will also restrict the scope of the definition. It will cause unnecessary complications and delays in the trial. A person 'considered necessary' and thus impleaded by the plaintiff, will need Court's permission or order to be added as a party, though such permission or order is not required under the statute:' Further that such an interpretation will render part (a) as redundant and ineffective; intent for which cannot be attributed to the legislature.
It will also keep the related and necessary persons out of the trial thereby preventing effective and binding adjudication. Such restrictive reading will defeat the purpose,_ meaning, intent, subject matter and context of the statute and will lead to unjust, oppressive and absurd consequences destructive to the 'dispute resolution' or `dispute settlement' or `dispute adjudication'.
13. For the reasons above discussed, the objections as to the improper impleadment of petitioners as the suit defendants and absence of Family Court's jurisdiction have no substance. The same are rejected.
14. On Court question, the learned Advocate Supreme Court for the petitioners admitted that the petitioners never objected to their impleadment in their written statement before the Family Court or in their appeal before the first appellate Court or in the Writ Petition before the High Court or in the memo of this CPSLA before this Court. The learned Advocate Supreme Court also conceded that the question of jurisdiction of the Family Court was also not raised before any of the Courts. Had the petitioners been improperly impleaded, they would have protested and sought their deletion from the suit by proving themselves to be irrelevant or unnecessary in the dispute between the spouses. The petitioners without demur submitted to the jurisdiction of the Family Court. They fully participated in the suit trial, filed their appeal and then a writ petition. The petitioners are thus debarred from claiming such a ground now for the first time in the Supreme Court. Even otherwise the impleadment of petitioners as co-defendants did not affect the jurisdiction of the Family Court to try the petitioners. Had the learned Advocate Supreme Court for the petitioners only glanced through the law, he would have advised himself against raising such a frivolous ground in the Supreme Court in clear violation of the provisions of the law on the' subject.
We therefore, dismiss this petition with costs throughout. Leave is declined.
M.A.K./M-68/SCPetition dismissed.
