PLJ 2009
----S. 11(2)--Constitution of
----Ss. 7 & 11--Constitution of
Constitution of
----Art. 199--West Pakistan Family Courts Act, 1964, S. 7(2)--Constitutional petition--Fallacious and based on wrong provision of law--Not sustainable--Applications for summoning the record and including the names of witnesses in the list of witnesses were dismissed--Sequence order was also passed--Challenge to--Validity--Petitioner shall be allowed to include the names of the two desired witnesses in the list subject to payment as costs but such witness shall not be summoned through the Court and if the petitioner wants to produce them he shall produce them on his own responsibility--Petition was allowed. [P. ] C
Mr. Muhammad Ahsan Nizami, Advocate for Petitioner.
Chaudhry Nawab Ali Meo, Advocate for Respondent No. 2.
Date of hearing: 8.10.2008.
PLJ 2009 Lahore 14Present: Zubda-tul-Hussain, J.MUHAMMAD AKRAM--PetitionerversusLEARNED JUDGE FAMILY COURT, PATTOKI DISTT. KASURand another--RespondentsW.P. No. 8580 of 2008, heard on 8.10.2008.
Judgment
The petitioner and the Respondent No. 2 are involved in multiple civil and criminal litigation which includes the proceedings of various suits before the Family Court. The Respondent No. 2 filed a suit for jactitation of marriage which is being contested by tooth and nail by the petitioner on the plea that the Respondent No. 2 had earlier filed suit for dissolution of marriage thereby admitting the factum of marriage. The petitioner wanted to produce evidence in support of this contention. For this purpose he submitted two applications before the learned Judge Family Court, one for summoning the record of the suit for dissolution of marriage allegedly filed by Respondent No. 2, and the other for including the names of two witnesses in the list of the witnesses appended with the written statement. Both these applications were dismissed by the order dated 17.3.2008 and 23.6.2008. In the same sequence the order dated 2.5.2008 was also passed. The validity and propriety of the orders dated 17.3.2008 and 23.6.2008 has been questioned in the prayer clause of this writ petition.
2. During the arguments the learned counsel for the petitioner also attacked the vires of the order dated 2.5.2008 to which the respondents' side took an objection that this has not been challenged in the instant writ petition. A perusal of the writ petition, however, shows that the order dated 2.5.2008 has not been impugned in the prayer clause but in the contents of the writ petition it has been impugned and challenged at more than one places. The contentions and rights of the parties have to be examined for the purposes of substantial justice and merely on clerical or technical basis no party can be denied the lawful relief. As the order dated 2.5.2008 has been challenged at more than one places in the writ petition, I am of the view that the omission to include it in the prayer clause does not affect the grievance of the petitioner against this order. Hence, this order dated 2.5.2008 shall also be deemed to be the subject of challenge in this writ petition.
3. The learned trial Court observed in relation to the later application of the petitioner for summoning the record of the suit that the certified copies thereof could be produced, as the same were per se admissible. This observation is unexceptionable and the application of the petitioner for summoning the record of the suit was unwarranted. If the petitioner wants to establish a fact on the basis of plaint or written statement etc. he can produce the certified copies of such record in support of his contentions. Hence, the writ petition insofar as it challenges the order dated 23.6.2008, is not tenable and is dismissed.
4. The order dated 17.3.2008 and 2.5.2008, however, seem to be little misconceived. The petitioner had submitted an application for including the names of the witnesses in the list whereas it was dealt with and decided as an application for additional evidence. The refusal was based on the provisions of Section 11(2) of the West Pakistan Family Courts Act, 1964 which deals with the summoning of the witnesses. This was not the case or prayer of the petitioner. The application and prayer of the petitioner was in fact covered by Section 7(2) ibid which is to the effect that the plaint shall contain all material facts relating to the dispute and shall contain a Schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose. The provisions of sub-section (2) specifically lay down that the parties may, with the permission of the Court call any witness at any later stage if the Court considers such expedient in the interest of justice. By virtue of these provisions the Court is competent to allow a party to include the name of a desired witness in the list in accordance with sub-section (2) of Section 7 ibid. The witnesses so included can be produced by the party, though it cannot get the summons issued if within three days of the framing of the issues it has not intimated the Court its desire that a witness may be summoned through the Court.
5. When confronted with the provisions of Sections 7 and 11 of the Family Courts Act, 1964 the learned counsel for the petitioner stated that the petitioner would like to include the names of the witnesses in the list under sub-section (2) of Section 7 and would not seek the summoning of such witnesses through the Court but would himself produce them in evidence. He submitted that the necessity for including the names in the list of witnesses is that without including the names in that list the petitioner cannot even call the witnesses in the witness-box at his own responsibility.
6. As the order dated 2.5.2008 is patently fallacious and based on wrong provision of law, the same is not sustainable. The order dated 17.3.2008 and 2.5.2008 to the extent of the prayer in the application dated 11.3.2008 are, therefore, set-aside. The petitioner shall be allowed to include the names of the two desired witnesses in the list subject to payment of Rs. 10,000/- as costs but such witnesses shall not be summoned through the Court and if the petitioner wants to produce them he shall produce them on his own responsibility. This list shall be deemed to have been filed under Section 7(2) of the Family Courts Act, 1964. To the extent of including the names of the witnesses mentioned in the application dated 11.3.2008 in the list under Section 7(2) ibid the writ petition stands allowed in the terms mentioned above. Before concluding the judgment it also seems appropriate that a direction for expeditious disposal of suit of Respondent No. 2 be also passed because the parties are involved in multiple litigation and the usual period prescribed for the disposal of such suits has already elapsed. It is, therefore, directed that the learned trial Court shall finally dispose of the suit of the Respondent No. 2 within a period of three months from the date of the receipt of this judgment, under intimation to this Court.
(R.A.) Petition allowed
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