O. VII, Rr. 10 & 11--West Pakistan Family Courts Act, 1964, S. 17--Constitution of Pakistan, 1973, Art. 199-Question of--Cause of action--Application was rejected--Assailed-

 PLJ 2008 Lahore 165

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

----O. VII, Rr. 10 & 11--West Pakistan Family Courts Act, 1964, S. 17--Constitution of Pakistan, 1973, Art. 199-Question of--Cause of action--Application was rejected--Assailed--No illegality--Cause of action had arisen in favour of respondent/plaintiff--Maintainability of suit--Provisions of CPC are not applicable before Judge Family Court which functions under West Pakistan Family Court Act, 1964--Section 17 of this Act specifically bars the application of provisions of CPC except Section 10 and 11 of CPC--Judge Family Court functions as a tribunal and a wisdom of a legislators to oust the provisions of CPC is to provide speedy mechanism to decide the matrimonial disputes--Therefore, application under Order 7 Rule 11 of CPC filed by petitioner was not maintainable--Constitutional petition is not competent against the rejection of application under Order 7, Rule 11 of CPC.   [P. 166] A, B & C

Sh. Muhammad Babur Riaz, Advocate for Petitioner.

Date of hearing: 20.7.2007.

 PLJ 2008 Lahore 165

Present: Hasnat Ahmad Khan, J.

Sheikh ABDUL KARIM--Petitioner

versus

ATTA MANSOOR, LEARNED JUDGE FAMILY COURT, LAHORE and another--Respondent

W.P. No. 7144 of 2007, decided on 20.7.2007.

Order

The petitioner has challenged the order dated 29.6.2007 passed by the learned Judge Family Court Lahore, whereby the application under Order 7 Rule 11 CPC filed by him, has been dismissed.

2.  Brief facts of the case are that Huma Naseem, Respondent No. 2/plaintiff filed a suit for recovery of dower and dowery articles against the petitioner. During the pendency of the said suit, the petitioner instead of filing written statement submitted an application under Order 7, Rule 11 CPC for rejection of the plaint (copy of which has not been attached with this petition).

3.  Learned counsel has contended that the application under Order 7, Rule 11 CPC filed by the petitioner had illegally been dismissed by the Judge Family Court, Lahore; that mere perusal of the plaint would show that gold ornaments weighing 25-tollas delivered to the Respondent No. 2 by the petitioner at the time of marriage were in possession of the said respondent and that during a dacoity ornaments of gold were robbed. Lastly learned counsel argued that the suit filed by the Respondent No. 1/plaintiff was without any cause of action.

4.  I have heard the learned counsel and perused the record annexed with this petition. Para No. 1 of the plaint shows that the gold ornaments of the Respondent No. 1/plaintiff were deposited in a locker of UBL (jointly operatable by the parties) which statedly was in possession of the defendant/petitioner. It is a case of the petitioners that said ornaments had been burgled by some bandits. In the exercise of Constitutional jurisdiction of this Court it cannot be determined as to in whose possession was the key of the locker or whether any party had drawn the said articles from the locker, as it requires recording of evidence. Similarly, an FIR whose lodger is petitioner himself, cannot furnish a ground for rejection of plaint at initial stage.

5.  The contention of the learned counsel that the plaint does not disclose any cause of action, prima facie, does not hold ground. The very perusal of the plaint clearly discloses that cause of action had arisen in favour of the Respondent No. 2/plaintiff. For the correct decision of application under Order 7, Rule 11 CPC normally assertions/averments contained in the plaint are to be seen and unless proved otherwise are to be presumed to be correct. Reliance is placed on Prince Aziz-ur-Rashied Abbasi vs. Begum Katherine Abbasi and 4 others; (2005 MLD 1940). Besides, the provisions of CPC are not applicable before the Judge Family Court which functions under West Pakistan Family Court Act, 1964. Section 17 of said Act specifically bars the application of provisions of CPC except Sections 10 and 11 of CPC. The Judge Family Court functions as a Tribunal and the wisdom of the legislators to oust the provisions of CPC is to provide speedy mechanism to decide the matrimonial disputes. Therefore, application under Order 7, Rule 11 CPC filed by the petitioner was not maintainable. See Ghulam Murtaza vs. Additional District Judge (II), D.G. Khan and 2 others; (1999 CLC 81). Apart from it, constitutional petition is not competent against the rejection of application under Order 7, Rule 11 CPC. In this regard, reliance is placed on a case of Mirza Allah Ditta alias Mirza Javed Akhtar vs. Amna Bibi and 2 others; (2005 CLC 1478). Even otherwise writ petition is not maintainable against an interim order. To fortify my view reliance is placed upon Khan Muhammad vs. Khizer Hayat and others; (2005 MLD 67) and Muhammad Naveed vs. Deputy District Officer (Revenue) and 4 others; (2005 PLC (C.S.) 129). No illegality or procedural irregularity in the impugned order has been pointed out. This petition has no merit and is dismissed in limine.

(N.F.)      Petition dismissed.