-Fight to defend was lost u/S. 17-A of Family Courts Act, 1964, when defendant ordered to pay interim maintenance allowance fails-

 PLJ 2013 Lahore 232

Punjab Family Courts Act, 1964 (XXXV of 1964)--

----S. 17-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Struck off right to cross examine witnesses--Suit for payment of maintenance allowance--Order to pay interim maintenance to minor--Right of defence was right to contest and endeavour to defeat claim of plaintiff--Validity--Fight to defend was lost u/S. 17-A of Family Courts Act, 1964, when defendant ordered to pay interim maintenance allowance fails--Since right to defend was right to contest and to endeavour to defeat claim made by plaintiff set forth in plaint, it was done by defendant by presenting written statement of his defence, by production of his own evidence by subjecting witnesses of plaintiff to cross examination and by objecting to admissibility and relevance of document produced by plaintiff--On account of failure to do facts or on account of breach of conditions, defendant loses his right to defend claim set forth by plaintiff--Petitioner had neglected to pay interim maintenance allowance--Court might strike off right of defence of petitioner--Husband had lost his right of defence that includes right of filing written statement production of evidence, subjecting plaintiff witnesses to cross examination and of objection to admissibility or relevance of plaintiff's documents--Court has right to examine genuineness of claim, needs of minors and financial capacity to maintenance allowance--Impugned order was decided to strike off defence of petitioner u/S. 17-A, his right to produce evidence would be deemed to have been struck off--Petition was dismissed.        [P. 234] A, B, C, D, E & F

1999 SCMR 2832 & 2007 CLD 1649, ref.

Khawaja Qaiser Butt, Advocate for Petitioner.

Malik Farooq Ahmad Thaheem, Advocate for Respondents.

Date of hearing: 15.1.2013.

 PLJ 2013 Lahore 232

[Multan Bench Multan]

Present: Ijaz Ahmad, J.

MUHAMMAD EJAZ--Petitioner

versus

JUDGE FAMILY COURT, KHANEWAL and 3 others--Respondents

W.P. No. 15680 of 2012, decided on 15.1.2013.

Order

The Respondents No. 2 & 3, sons and Respondent No. 4, wife of the petitioner, instituted a suit for payment of maintenance allowance @ Rs.5000/- each per month. The suit was contested. The learned Judge, Family Court vide order dated 02.10.2012 ordered the petitioner to pay Rs.1500/- per month to the minor Respondents No. 2 and 3 as interim maintenance. It was not paid. The learned Judge, Family Court vide order dated 28.11.2012 struck off the right of the petitioner to cross-examine the witnesses, under Section 17-A of the West Pakistan Family Courts Act, 1964.

2.  It is contended by the learned counsel for the petitioner that in case of failure to comply with the interim order for the payment of maintenance allowance, the learned judge could strike off the defence of the petitioner which includes the submission of written statement if already not made and the right to produce his own evidence. The right of the petitioner to cross examine the respondents/plaintiffs' witnesses could not be struck off.

3.  On the other hand, it is contended by the learned counsel for the respondents that in case, the interim order of Family Court for the payment of maintenance is not complied with, the plaintiffs are entitled to a decree for payment of maintenance allowance forthwith and that the striking off defence of the defendant includes refusing him the right to submit written statement, produce his own evidence and to cross examine the witness produced by the plaintiffs.

4.  I have heard the learned counsel for the parties and have also gone through the record.

5.  The right of defence is the right to contest and endeavour to defeat the claim of the plaintiff. It is a set of acts placing the defence between the force exerted by plaintiff by initiation of suit and the object to have the relief from the Court. Various statutes bestow this right on the defendant as a matter of right. It accrues to the defendant, the movement a plaintiff institutes a suit. Rule 1 of Order VIII C.P.C provides that the defendant may, and, if so required by the Court, shall at or before the first hearing present a written statement of his defence. Same is the case in a suit instituted under West Pakistan Family Courts Act, 1964 and many other provisions of law. However, in a suit instituted under Order XXXVII, C.P.C, under Financial Institutions (Recovery of Finances) Ordinance, 2001 and under Punjab Rent Premises Act, 2009, the right to defend or contest has to be sought. This fight to defend is lost under Section 17-A of West Pakistan Family Courts Act, 1964 when defendant ordered to pay the interim maintenance allowance fails. Under Section 10(11) of the Ordinance, 2001 ibid if an application for leave to contest is rejected or the defendant fails to fulfill the conditions, a decree will be passed in favour of the plaintiff and against the defendant forthwith. Same is the case in an application made under PRPA, 2009. Similar are the provisions under Order XXXVII, Rule 2(2) C.P.C. Since the right to defend is the right to contest and to endeavour to defeat the claim made by the plaintiff set forth in the plaint, it is done by the defendant by presenting the written statement of his defence, by production of his own evidence, by subjecting the witnesses of plaintiff to cross-examination and by objecting to the admissibility and relevance of the document produced by the plaintiff. On account of failure to do certain facts or on account of breach of certain conditions, the defendant loses his right to defend the claim set forth by the plaintiff.

6.  In the instant case, the petitioner/defendant had neglected to pay the interim maintenance allowance. The penalty provided under Section 17-A of the West Pakistan Family Courts Act, 1964, the Court might strike off the right of the defence of the petitioner. The Court had on the previous date warned the defendant that it could be done. The petitioner/defendant has lost his right of defence that includes the right of filing the written statement, production of evidence, subjecting the plaintiff's witnesses to cross-examination and of objection to the admissibility or the relevance of the plaintiff's documents.

7.  However, this penalty imposed on the petitioner will not automatically entitle the respondents/plaintiffs to a decree for payment of maintenance allowance as prayed in the plaint. The Court has the right to examine the genuineness of the claim of the plaintiff, the needs of the minors and the financial capacity of the petitioner to pay the maintenance allowance. I seek support from the judgments `Col. (Retd.) Ashfaq Ahmed and others vs. Sh. Muhammad Wasim' (1999 SCMR 2832) and `Kings Tyre Industries Limited through Director and 5 others vs. Union Bank Limited through Manager and 2 others' (2007 CLD 1649). Since the Judge Family Court, in view of the impugned order has decided to strike off the defence of the petitioner under Section 17-A of the Act ibid, his right to produce evidence shall also be deemed to have been struck off. This petition fails and is dismissed.

(R.A.)  Petition dismissed