Writ Jurisdiction-- ----Interim orders passed in family cases can be assailed in writ jurisdiction--Validity--Against interim order in family cases High Court can interfere in writ jurisdiction.

 PLJ 2010 Lahore 400

Constitution of Pakistan, 1973--

----Art. 199--Family Courts Act, 1964, S. 17-A--Constitutional petition--Right of cross-examination was closed--Petitioner filed an application before Family Court to frame appropriate issues--Application was dismissed--Challenge to--Question of--Interim orders passed in family cases can be assailed in writ jurisdiction--Interference in interlocutory order and in proceedings of Trial Court--Validity--Relief was refused unless interim orders bear characteristics of effect of final order--Interim order could not be subjected to judicial scrutiny in writ jurisdiction--Held: Order assailed in the instant writ petition is of interim in nature it does not bear the characteristic of final order--Writ petition was dismissed.      [P. 403] C

Writ Jurisdiction--

----Interim orders passed in family cases can be assailed in writ jurisdiction--Validity--Against interim order in family cases High Court can interfere in writ jurisdiction.        [P. 402] A

PLJ 1986 Lah. 541, PLD 1982 Lah. 168, PLD 1982 Lah. 92, 1988 MLD 2949, NLR 1988 Lah. 599, 1994 CLC 14 & NLR 1995 Civil 134, rel.

Civil Procedure Code, 1908 (V of 1908)--

----O. VII, R. 11--Constitution of Pakistan, 1973--Art. 199--Application before Family Court for rejection of plaint which was refused--Held: Against an interim order writ petition is not maintainable unless interim order gets the characteristics of final order.   [P. 403] B

2008 CLC 585 rel.

Syed Athar Hassan Bukhari, Advocate for Petitioner.

Date of hearing: 16.12.2009.

 PLJ 2010 Lahore 400

[Multan Bench Multan]

Present: Hafiz Abdul Rehman Ansari, J.

Mian KASHIF MEHMOOD-UL-HASSAN--Petitioner

versus

JUDGE FAMILY COURT etc.--Respondents

W.P. No. 9384 of 2009, decided 16.12.2009.

Order

Through this constitutional petition, the petitioner seeks setting aside of the order dated 10.11.2009 passed by learned Judge Family Court, on the application of the petitioner, for framing of appropriate issues in the light of divergent pleadings of the parties. Learned Judge Family Court not only dismissed the application, also recorded the evidence of the defendant, DW-1 to DW-3 the same day.

2.  Brief facts of the instant case are that Mst. Muddasar Nawaz daughter of Haji Muhammad Nawaz filed a suit for dissolution of marriage against the petitioner. Respondents Nos. 2 & 3 filed suit for maintenance allowance alleging therein that Respondent No. 2 married with petitioner on 25.12.2003 and out of this wedlock Respondent No. 3 was born on 23.08.2006. In the beginning relations between the spouses remained cordial which later on become strained. It is alleged in the suit that the petitioner expelled them from the house in three clothes. The petitioner/defendant contested the suit and filed separate written statements, controverted the contents of each suit. In the written statement it was alleged that Mst. Muddasar Nawaz got benefit of Rs. 9,00,000/- during the "abadi" period when she was going to participate in the marriage ceremony of her younger sister. At that time she took golden ornaments, detail of which has been given in the written statement. He took stance that he never expelled the petitioner from his house. He still wants her re-union.

3.  At one stage, the case was transferred from the Court of Abid Hussain Malik, Judge Family Court to the Court of Mr. Jalil Ahmad, Judge Family Court on 06.12.2009.

4.  Later on the petitioner/defendant dis-appeared from the Court and ex-parte proceedings were initiated against the petitioner. The petitioner submitted an application for setting aside ex-parte proceedings which was accepted subject to payment of cost of Rs. 200/- vide order dated 07.10.2009.

5.  Learned counsel submits that no proper issues were framed from the divergent pleadings of the parties and on 12.10.2009 only one following issue was framed.

Issues.

"Whether plaintiff is entitled to the decree as prayed for in the plaint? OPP"

6.  On 2.11.2009 the aforesaid suit was consolidated with the suit for maintenance allowance and following additional issue was framed.

"Whether the plaintiff is entitled to the decree of dissolution of marriage? OPP."

7.  On 02.11.2009 the examination-in-chief of PW-1 and PW-2 were recorded but the counsel for the petitioner was ill and cross-examination was not held. Learned counsel submits that the Judge Family Court without granting fair and square opportunity of cross-examination closed his right of cross-examination on 2.11.2009. On 10.11.2009 the petitioner submitted an application before Judge Family Court to frame the appropriate issues and dismissed the application on 10.11.2009. Present writ petition is filed, to assail the order passed by learned Judge Family Court on 10.11.2009 which is of interim in nature and does not reflect characteristic of final adjudication of the dispute. In family matters interim orders cannot be assailed through constitutional petition unless any interim order attains the characteristic of final order. Learned counsel for the petitioner was asked to assist this Court, on law point, interim orders passed in family cases can be assailed in writ jurisdiction. He made reliance on PLD 1982 Lahore 168 (DB), PLD 1982 Lahore 92, PLJ 1986 Lahore 541, 1988 MLD 2949, NLR 1968 Lahore 599 (DB), 1994 CLC 14 and NLR 1995 Civil 134.

8.  In all these judgments cited above not in a single judgment it is held that against interim order in family cases this Court can interfere in writ jurisdiction. I concur the view expressed by my learned brother, J., in "Ishfaq Ahmad vs. Judge Family Court" (2007 YLR 1550). In this case defendant failed to file written statement the right of defence to file written statement, was struck off. The said order was challenged in the constitutional jurisdiction. Interference in interlocutory order and in the proceedings of the trial Court in the pending family suit before the learned Judge Family Court, was refused. It was held by the learned Judge that if suit was decided against the defendant ultimately and he wanted to file an appeal there it would be open for him to assail impugned order in the appeal but in writ jurisdiction the learned Judge refused to interfere in the interim order of the Judge Family Court. The learned brother Judge also observed that scope of appeal is wider than that of writ petition. In another case reported as "Abdul Karim vs. Ata Mansoor" (2007 CLC 1671), an application filed under Order VII Rule 11 of CPC before the learned Judge Family Court for rejection of plaint which  was  refused.  Against  this  order writ petition was filed the same was also dismissed on the point of maintainability. Against an interim order writ petition is not maintainable unless the interim order gets the characteristics of final order. In case reported "Muhammad Irfan vs. Judge Family Court" (2008 CLC 585 (c)), interim maintenance allowance was fixed by the learned Judge Family Court under Section 17-A of the Family Courts Act, 1964, which was challenged in the constitutional jurisdiction. Relief was refused unless interim orders bear characteristics of effect of final order. Interim order could not be subjected to judicial scrutiny in writ jurisdiction. I concur the view expressed in these three cases. Order assailed in the instant writ petition is of interim in nature it does not bear the characteristic of final order. I would not like to interfere in this order in writ jurisdiction. This writ petition is dismissed in limine.

(R.A.)  Petition dismissed.