Neither petitioner file written statement on day when he entered appearance before Judge Family Court nor submitted written statement on successive five adjourned dates for a period converting more than five months--

 PLJ 2022 Lahore 584

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

----S. 9--Punjab Family Courts (Amendment) Act, 2015--Closing of petitioner--Non-filing written statement by petitioner--Judge Family Court proceeded to close right of petitioner--Neither petitioner file written statement on day when he entered appearance before Judge Family Court nor submitted written statement on successive five adjourned dates for a period converting more than five months--Petitioner willfully and by design tried to prolong litigation and did not comply with order of court for submission of written statement.

                                                               [Pp. 584, 585 & 587] A, B & C

PLD 1981 SC 246; PLD 1974 SC 139 ref.

Mr. Mujeeb-ur-Rehman Hashmi, Advocate for Petitioner.

Haji Dilbar Khan Mahaar, AAG for State.

Mr. Aftab Hussain Malik, Advocate for Respondent No. 2.

Date of hearing: 2.2.2022.

 PLJ 2022 Lahore 584

[Multan Bench Multan]
Present: Shakil Ahmad, J.
ABDUL ZAHOOR--Petitioner
versus
JUDGE FAMILY COURT, MULTAN and another--Respondents
W.P. No. 220 of 2022, decided on 2.2.2022.

Order

Instant petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to assail order dated 20.11.2021 passed by learned Judge Family Court, Multan, whereby right of Abdul Zahjoor (petitioner herein) to submit written statement was closed.

2. Heard learned counsel for the parties and record so annexed with the petition perused.

3. Learned counsel for the petitioner contends that learned Judge Family Court proceeded to close the right of petitioner in undue haste on technical ground. Learned counsel, however, could not refute the fact that the petitioner through his counsel entered appearance before learned Judge Family Court on 14.06.2021. Neither petitioner filed written statement on the day when he entered appearance before learned Judge Family Court nor submitted written statement on successive five adjourned dates for a period covering more than five months till 20.11.2021 when impugned order was passed by learned Judge Family Court. Procedure for submission of written statement has been specified in Section 9(1) of the Family Courts Act, 1964 (hereinafter referred to as the 'Act, 1964'). For the facility of ready reference, said provision is reproduced hereunder:

"[S. 9. (1) Written statement.--On the date fixed under clause (a) of sub-section (1) of Section 8, the plaintiff and the defendant shall appear before the Family Court and the defendant shall file his written statement, and attach therewith list of his witnesses alongwith a precise of the evidence that each witnesses is expected to give."

Section 9(1) ibid has been amended by the Punjab Family Courts (Amendment) Act, 2015 (hereinafter referred to as 'Punjab Amendment'), which is reproduced hereunder for the facility of ready reference:

14(1) On the date fixed under Section 8, the defendant shall appear before the Family Court and file the written statement, a list of witnesses and gist of evidence, and in case the written statement is not filed on that date, the Family Court may, for any sufficient reasons which prevented the defendant from submitting the written statement, allow the defendant to submit the written statement and other documents on the next date which shall not exceed fifteen days from that date."

            In view of above hinted provision of law, the petitioner/defendant was required to have filed written statement on the date of his appearance before the learned Judge Family Court and an adjournment to submit his written statement could have only be granted to the petitioner only for the sufficient reasons so disclosed by him that prevented him from submitting the same on the date of his appearance and next date allowed by the learned Judge Family Court should not exceed 15 days from the date when the petitioner/defendant appeared before the learned Judge Family Court and in case petitioner fails to submit written statement on the subsequent date, his defence has to be struck off in view of newly inserted seb-section (5 A) of Section 9 through Punjab amendment. For the facility of ready reference, section (5A) is reproduced hereunder: -

17(5A) If the defendant fails to submit the written statement on or before the date under seb-section (1), the defence of the defendant shall stand struck off and the Family Court shall decide the case under the law."

As per above referred provisions, petitioner's right to submit written statement was to be struck off on the next date of hearing i.e 12.07.2021 when he failed to file written statement, although next date was granted in utter disregard of provisions of Section 9 (1) of the Punjab Amendment, whereunder next date should not have been granted beyond period of fifteen days. Despite the grace rather unnecessary leniency shown by learned Judge Family Court and that too in disregard of above hinted provisions of law, petitioner failed to file written statement and case was again adjourned for 11.09.2021 but on that date petitioner again failed to file the written statement. Submission of learned counsel for the petitioner that on these two dates learned Presiding Officer was on leave therefore non-filing of written statement on these two dates cannot be attributed to petitioner, on the face of it, is not only naive but also ridiculous, for the simple reason that absence of learned Presiding Officer in no way could have caused any hindrance in the way of the petitioner to comply with the order for submission of written statement by submitting written statement before the Court even the learned Judge Family Court was on leave as it was the judge who was on leave not the Court. It may further be seen that on the subsequent adjourned date i.e 13.10.2021 again written statement was not filed and learned Judge Family Court again proceeded to adjourn the case merely on the request of learned counsel for the petitioner by remaining in total oblivion to the above hinted provisions of the Punjab Amendment and finally on 20.11.2021, learned Judge Family Court proceeded to close the right of the petitioner to submit written statement. Learned counsel for the petitioner failed to advance any plausible reason or ground for not submitting written statement before the learned Judge Family Court for the period of more than five months. It may be advantageous to refer at this juncture that the provisions of Section 12-A of the Act, 1964 provide period of six months for the decision of a family case whereas in the instant case, it took period of around more than five months requiring the petitioner to file his written statement and even the same was not submitted till the impugned order was passed on 20.11.2021. Instant is a classic example of indolence on the part of the petitioner at one hand and on the other, showing of unnecessary and undue grace by learned Judge Family Court in granting successive dates in a mechanical manner for submission of written statement and that too in disregard of the provisions inserted through Punjab Amendment Undeniably, right of defence is fundamental right of the opposing party but at the same time parties to a lis have to show due diligence in-safeguarding their legal rights

and a party cannot be allowed to unnecessarily prolong the legal proceedings at his own whims and caprice. The Courts are well within jurisdiction to regulate the trial proceedings as per the dictates of relevant provisions of law and make their best efforts to conclude the trial within the prescribed period and would not allow a latish litigating party to jeopardize the ends of justice by procrastinating the lis and by militating against the provisions of law aimed at swift decision of family matters. It is well established principle of law that this Court in exercise of constitutional jurisdiction has only to see that whether the Court/tribunal acted without jurisdiction or had violated the statute or law laid down by the superior Courts. Reliance in this regard may safely be placed on cases reported as "Muhammad. Sharif and another v. Muhammad Afzal Sohail etc."(PLD 1981 Supreme Court 246), and "Muhammad Hussain Munir and others v. Sikandar and others" (PLD 1974 SC 139). At the cost of repetition, it may be observed that learned counsel for the petitioner failed to point out even a single instance/reason justifying non-submission of written statement on the part of the petitioner for the period of more than five months and this is clearly suggestive of the fact that the petitioner willfully and by design tried to prolong the litigation and did not comply with the order of the Court for submission of written statement. Law indeed favours the vigilant and not the indolent. In the instant case, it was not merely indolence on the part of the petitioner rather his conduct qua non-compliance of order for submission of written statement was contumacious. Learned counsel for the petitioner has failed to point out any valid ground wherefrom it may even remotely be considered that learned Court below while passing the impugned order has acted either without jurisdiction or the impugned order has been passed in violation of any law.

4.  The upshot of above discussion is that petition in hand is devoid of any force, therefore, the same is dismissed.

(K.Q.B.)