--S. 14--Constitution of Pakistan, 1973, Art. 199--Challenged the order of Family Court--Right of cross-examine the witnesses was closed

 PLJ 2009 Lahore 822

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Constitution of Pakistan, 1973, Art. 199--Challenged the order of Family Court--Right of cross-examine the witnesses was closed--Held: Last opportunity was granted to cross-examine the witnesses--Respondent had already been divorced by the petitioner and his conduct as reflected from the order sheet appended with the writ petition showed his refractoriness--Reluctant to cross-examine the PWs with a view to teas her and to prolong the matter.     [P. 823] A

Interlocustory Order--

----Impugned order was to all intents and purposes an interlocutory in nature--Validity--Law does not provide any appeal or revision in hierarchy of family laws--Petitioner on proper showing would have an opportunity to challenge the same if and when he would bring an appeal against the final decision in terms of S. 14 of the Family Court Act, 1964--There is no dearth of authority that the expression "decision" means final decision and the same will be read ejusdem genris with "Judgment"--Petitioner will have an aeduqate and alternative remedy at the time of appeal.  [Pp. 823 & 824] B

Mr. Shahid Shaukat, Advocate for Petitioner.

Date of hearing: 25.2.2009.

 PLJ 2009 Lahore 822
Present: S. Ali Hassan Rizvi, J.
KHALIL AHMAD--Petitioner
versus
JUDGE FAMILY COURT, FAISALABAD and another--Respondents
W.P. No. 3689 of 2009, decided on 25.2.2009.

Order

Khalil Ahmad writ petitioner has challenged the validity of the order dated 16.1.2009, passed by learned Judge, Family Court, Faisalabad whereby the right of the petitioner to cross-examine the witnesses of the Plaintiff/Respondent No. 2 Mst. Naila Majeed was closed.

2.  It was argued by the learned counsel for the petitioner that the impugned order was too harsh; that on 12.1.2009, the Reader of the Court had told the next date as 26.1.2009 but that actually it was 16.1.2009; that the omission to record correct date was only a lapse condonable; that valuable rights of the petitioner had been closed; that wrong recording of date was supported by an affidavit of the learned counsel and that law favours decision on merits than on technicalities. According to learned counsel, the learned Judge, Family Court had committed material illegality and irregularity while passing the impugned order, which justified interference by this Court in the exercise of Constitutional jurisdiction.

3.  I have heard learned counsel for the petitioner and gone through the record. The perusal of the relevant order dated 16.1.2009 would show and show clearly that a reference was made to the orders of 3.1.2009 and 12.1.2009, which transpired that even earlier, the proceedings were adjourned for cross-examination of the witnesses of the Plaintiff/Respondent No. 2 with a caution that last opportunity was being granted. A copy of order dated 3.1.2009 is also appended with the writ petition. It showed that an application of the petitioner was accepted subject to payment of cost of Rs.1000/- and last opportunity was granted to cross-examine the PWs adjourning the case for 12.1.2009. It was also cautioned that in case of non-compliance of the order on the part of the petitioner (defendant), the order dated 24.11.2008 would stand resurrected. The Respondent No. 2 Mst. Naila Majeed had already been divorced by Khalil Ahmad, writ petitioner and his conduct as reflected from the order sheet appended with the writ petition relating to 24.11.2008, 3.1.2009 and 16.1.2009 showed his refractoriness. He appeared to be reluctant to cross-examine the PWs of the plaintiff/ Respondent No. 2 Mst. Naila Majeed with a view to tease her and to prolong the matter. A copy of the diary appended with the writ petition (vide page 12) showed that on 3.1.2009, the case entitled as Naila Majeed Vs. Khalil Ahmad was duly entered at Sr. No. 4. A close observance of the date recorded against it showed 16.1.2009. The digit "1" to the naked eyes appears to have been overwritten so as to show it as "2" making the date as 26.1.2009 instead of 16.1.2009. With respect to the learned Advocate who had sworn an affidavit as to the misconception of date (Annexure-F), I find that it was of no help for reason more than one. Firstly it does not show as to which was the date, which was recorded by him on account of misconception. The affidavit was also not in accordance with law. Its contents were neither couched nor verified as per High Court Rules & Orders. The impugned order passed by the learned Judge, Family Court, is not only clothed with authority but is also fully justified. The impugned order dated 16.1.2009 was to all intents and purposes an interlocutory in nature. The law does not provide  any  appeal  or  revision  in  the  hierarchy  of Family Laws. The petitioner on proper showings would have an opportunity to challenge the same if and when he would bring an appeal against the final decision/judgment in terms of Section 14 of the Family Court Act, 1964. There is no dearth of authority that the expression "decision" means final decision and the same will be read ejusdem generis with "judgment". In other words, the petitioner will have an adequate and alternative remedy at the time of appeal as aforementioned. Considering the conduct of the petitioner, the learned Judge Family Court was constrained to pass the impugned order dated 16.1.2009. There was no illegality or irregularity in passing these orders. The present writ petition is without any substance. It is not entertainable and is consequently dismissed in limine.

(M.S.A.)    Petition dismissed.