-Ss 14(3) & 17---Appeal against interim order passed by Executing Court/Family Court---Provisions of C.P.C. and Qanun-e-Shahadat, 1984, not applicable to proceedings of Family Court--

 2022 Y L R 2114

Family Courts Act (XXXV of 1964)---

----Ss 14(3) & 17---Appeal against interim order passed by Executing Court/Family Court---Provisions of C.P.C. and Qanun-e-Shahadat, 1984, not applicable to proceedings of Family Court---Scope---Actual point involved in the present petition was that whether first Appellate Court had jurisdiction to entertain appeal against the order of Executing Court/Family Court as per provisions of Ss.14(3) & 17 of the Family Courts Act, 1964---Family Courts Act, 1964, was a special law and all the proceedings were conducted under the said Act, and when provision of only one appeal was provided that mean there was philosophy behind the said provision of the Act and Family Court had been empowered to decide all the matters while observing the principle of law---Provisions of C.P.C and Qanun-e-Shahadat, 1984, were not applicable to the proceedings of Family Court in order to decide the matters within the shortest possible time with permanent solution---Only one right of appeal had been provided by the Family Courts Act, 1964, against the final order of the Family Court, whereas no provision of appeal or revision should lie against an interim order of Family Court, especially when the petitioner had taken a specific objection regarding the maintainability of appeal before the first Appellate Court, that matter should have been decided first in view of spirit of law---

Judgment

SAFDAR SALEEM SHAHID, J.---Through this constitutional petition, Mst. Sadia Iqbal petitioner has challenged the validity of judgment dated 11.03.2016 whereby learned Addl. District Judge, Lahore set aside the orders dated 23.05.2015 and 15.12.2015 passed by learned Executing Court Lahore, "with the directions to learned Executing Court to determine/ascertain the actual value of gold ornaments and not pure gold, prevailing at the date of satisfaction/ execution of decree, when the judgment debtor had paid decretal amount, which was exact date of execution/satisfaction of decree, as per order of Hon'ble Lahore High Court, Lahore".

2. Perusal of order dated 06.05.2016 passed by this Court in the instant petition reveals that on the said date, learned counsel for the petitioner contended that respondent No.1 had filed an application before the learned Executing Court raising objection on the value of gold ornaments on 3rd June, 2015 which was dismissed vide order dated 11th June,2015. Thereafter, the respondent No.1 filed EFA No.1366 of 2015 against the said order, which he withdrew, after arguments, vide order dated 21.10.2015; that instead of availing appropriate remedy, he again moved an application with the same contents, pleadings and prayer seeking revaluation of the gold ornaments on 28.11.2015 which was also dismissed by the learned Executing Court vide order dated 15.12.2015. Thereafter, he preferred an appeal before the learned Lower Appellate Court which was taken up and decided vide impugned judgment dated 11.03.2016, despite the objection of learned counsel for the petitioner that appeal did not lie against the said interim order as per provisions of section 14(3) and 17 of the West Pakistan Family Court Act 1964.

3. Arguments heard. Record perused.

4. The actual point involved in the instant petition was that whether learned first Appellate Court was having jurisdiction to entertain the appeal against the interim orders of learned Executing Court as per provisions of sections 14(3) and 17 of the West Pakistan Family Court Act 1964?. Here I would like to reproduce section 14(3) and Section 17 (supra) as under:-

"Section 14(3) " No appeal or revision shall lie against an interim order passed by a family Court".

"Section 17 provisions of evidence Act and Code of Civil procedure not to apply.(1) save as otherwise expressly provided by or under this Act, the provisions of the (Qanun-e-Shahdat, 1984 (P.O No.10 of 1984) and the Code of Civil Procedure, 1908 (except sections 10 and 11) shall not apply to proceedings before any Family Court (in respect of part I of Schedule)."

(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts.

5. It has been noticed that Mst. Sadia Iqbal petitioner filed Writ Petition bearing No.29500 of 2013 before this Court. Vide order dated 12.06.2014 this court observed as under:-

" The respondent is held entitled for recovery of gold ornaments as prayed for or in alternate their market value which would be prevailing at the time of execution/satisfaction of the decree"

" From the above discussion, it has been established on record that both the learned courts below erred in law while declining the prayer of respondent for recovery of deferred dower. The petitioner could not prove that he has paid the dower during the existence of marriage, therefore, respondent is held entitled to recover Rs.1,00,000/- from the petitioner as deferred dower.

Keeping in view the aforesaid observations passed by this Court, the learned Executing Court vide order dated 23.05.2015 had fixed the value of seventy tolas gold ornaments as Rs. 32,90,000/- and dower amount of Rs. 1,00,000/-, total decretal amount was calculated as Rs. 33,90,000/ and thereafter the learned Executing Court, Lahore directed the respondent/judgment debtor to present seventy tolas gold ornaments or its value ascertained hereinabove or Rs. 33,90,000/- as decretal amount. The respondent/ judgment debtor filed an application seeking evaluation of correct price of gold ornaments and depositing of an amount of Rs. 3,00,000/- in lieu of decretal amount which was dismissed by learned Executing Court vide order dated 11.06.2015. Being aggrieved by the orders of learned Executing Court, the respondent/judgment approached this Court by filing EFA No.1366 of 2015 which was dismissed by this Court vide order dated 21.10.2015 and that dismissal order was not assailed by the respondent/ judgment debtor. It has further been noticed that respondent/judgment debtor also filed an application under section 151, C.P.C. read with section 94 of C.P.C. praying the court to appreciate the actual direction of this Court given in para No.13 of the judgment dated 12.06.2014 passed in W.P. No.12640 of 2013, which was also dismissed by learned Executing Court vide order dated 15.12.2015. Thereafter on 05.01.2016 against the orders dated 23.05.2015 and 15.12.2015 passed by learned Executing Court, the respondent/judgment debtor filed a family appeal before the learned Addl. District Judge, Lahore who set aside the aforesaid orders passed by learned Executing Court. The other question arises that whether interim order dated 23.05.2015 passed by learned Executing Court, during the execution of decree in question can be assailed through appeal which was allegedly filed by the respondent/judgment debtor on 05.01.2016 with the delay of more than seven months. The West Pakistan Family Courts Act, 1964 provides only one provision of appeal and in view of that whether appeal against other interim order dated 15.12.2015 is competent and maintainable before learned Ist Appellate Court. During the course of arguments learned counsel for respondent/judgment debtor took stance that an illegal order of the court may be assailed in appeal before the court of competent jurisdiction and as such the appeal before the learned appellate court regarding the aforesaid orders passed by learned Executing Court was well maintainable before the said Court. It was further contended by learned counsel for the respondent that learned executing Court was bound to fix the market value of alleged gold ornaments keeping in view the spirit of judgment dated 12.06.2014 passed by this Court in W.P. No.12640 of 2013 which was not certainly followed by the learned Executing Court. In the case reported as "Muhammad Sadiq v. Dr. Sabir Sultana" (2002 SCMR 1950) the Hon'ble Supreme Court of Pakistan has observed as under:-

Ss. 13 & 17---Civil Procedure Code (V of 1908),O.XXI, R.54--- Order of attachment and auction of property by the Family Court---Compliance of O.XX,R.54, C.P.C.--- Necessity--- Provisions of O.XXI, R.54, being not mandatory substantial compliance with the said provision is enough---Strict compliance with O. XXI, R. 54, C.P.C. may not be insisted upon as S.13 of the West Pakistan Family Courts Act, 1964 provides for the execution of a decree passed by the Family Court and application of O.XXI, R.54, C.P.C has been excluded by S.17 of the said Act.

The West Pakistan Family Courts Act, 1964 is a special law and all the proceedings are conducted under the said act and when only one provision of appeal is provided that means there is philosophy behind the said provision of afore-mentioned Act and Family Court has been empowered to decide all the matters while observing the principle of law. The provisions of C.P.C. and Qanun-e-Shahadat Order are not applicable to the proceedings of Family Court in order to decide the matters within the shortest possible time with permanent solution. This is why that only one right of appeal has been provided by the Act against the final order of the Family Court Court, whereas no provision of appeal or revision shall lie against an interim order of the Family Court, especially when the petitioner has taken a specific objection regarding the maintainability of appeal before the learned Ist Appellate Court, that matter should have been decided first in view of spirit of law. Keeping in view the facts and circumstances of the case, this court has reason to believe that learned Addl. District Judge, Lahore while assuming the jurisdiction to entertain the said appeal and passing the impugned order, erred in law by setting aside the interim orders passed by learned Executing Court.