Factual controversies involved in the case, could not be solved without a full-fledged trial.

14. Similarly in Benedict F.D. Souza v. Karachi Building Control Authority and 3 others (1989 SCMR 918) it was observed that;

 "Factual controversies involved in the case, could not be solved without a full-fledged trial. Accordingly we find that the approach of the High Court in its discretionary writ jurisdiction to decline relief to the petitioner, was unexceptionable. No justification has been made out for grant of leave to appeal. The same is refused."

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Family Court has the power to review its own order, however, only to the limited extent and that too if the order under review is due to the reason mentioned in guideline (vi) above OR the order reviewed falls in the settled parameters of review

18. It is however necessary to mention here that although provision of review is not provided in the West Pakistan Family Court Act, 1964, however, in view of the law laid down by the Hon’ble Peshawar High Court in Muhammad Saad Ali & 2 others Vs. Mst. Maryam Khan & 2 others (2014 CLC 715) wherein it was held as under:- ―

"The Family Court has got every jurisdiction to adopt any procedure/law to meet the situation to do the substantial justice between the parties and to secure the ends of justice. Since the act, 1964 ibid is not comprehensive enough to meet every conceivable eventuality. So, the Family Court can adopt every procedure/law in furtherance of dispensation of justice unless the procedure/law going to be adopted is specifically prohibited. The Family Court when came across the situation of failure of the defendants to file written statement, borrowed the provision of striking off defence from the C.P.C. and passed an order in this regard, then the said Court while facing the situation of review of the same can take shelter of non-availability of the provisions of review in the Act, 1964 ibid? No. the Family Court cannot refuse to exercise the jurisdiction on the ground of non-availability of the provision of review. It is the principle of law that recourse to general law is permissible when the provisions of special law are silent on a particular point except where the provisions of general law are inconsistent with the provisions of special law".

 Hence in respectful agreement of the view above, the Family Court has the power to review its own order, however, only to the limited extent and that too if the order under review is due to the reason mentioned in guideline (vi) above OR the order reviewed falls in the settled parameters of review.

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Administration of justice laid down certain guidelines

15. This court in the case of Mst. Sitwat Chughtai and another v. Judge, Family Court, Lahore and another (PLD 2009 Lahore 18) for administration of justice laid down certain guidelines in the following manner:- 

(i) Purpose behind insertion of section 17-A in Family Courts Act, 1964 is to ensure that during pendency of proceedings with Family Court, financial constraints faced by minors are ameliorated; 

(ii) Family Court should broadly look into social status of parties, earning of defendant, his capacity to pay and requirements of minor is the touchstone on which Family Court should fix interim maintenance; 

(iii) For the reason that no right of appeal etc. has been provided against fixation of interim maintenance, such order being tentative and interim in nature, the Family Court should be more careful and precise in such context to ward off any injustice. 

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Family Court has the power to pass interim maintenance order at any stage of the suit.

12. Under the above provision, Family Court has the power to pass interim maintenance order at any stage of the suit. Normally it is passed after filing of the written statement on behalf of the respondent/defendant in the suit. Now if the defendant found the same to be excessive or if the order suffers from some illegality or irregularity or it is arbitrary, fanciful, void ab-initio, without jurisdiction or if the same has attained the status of a final order, then writ under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 will become maintainable. In this regard reference is made to Sikhawat Hussain vs. Farzand Bibi and 6 others 2004 MLD 1834 (Lahore), Ghulam Mohy-ud-Din v. Mst. Mehvish 2002 YLR 3771 (Lahore), Muhamamd Khalid Javeed v. Mst. Shahida Parveen and 4 others 2007 YLR 1366 (Lahore), Aamer Mehmood Hussain v. Naeha Aamer Sayed and 2 others 2011 MLD 1105 (Lahore), Abrar Hussain v. Mehwish Rana and 3 others (PLD 2012 Lahore 420) and Nadeem Raza v. Judge Family Court and 3 others 2013 YLR 965 (Lahore) 

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Rigidity in the operation of a legal system is a sign of weakness, not strength.

10. However, as Lord Nicholls of Birkenhead has held in Spectrum Plus Limited and others Vs. National Westminster Bank PLC ([2005] 2 AC 680) as under; 

―Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity. Far from achieving a constitutionally exemplary result, it can produce a legal system unable to function effectively in changing times. 'Never say never' is a wise judicial precept, in the interest of all citizens of the country.‖ Therefore, in the extreme exceptional cases a writ petition against interlocutory orders may be held maintainable.

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Erred in law while transferring the family suit to the court of learned Guardian Judge who lacks jurisdiction to hear and try the family cases

3. It is argued by the learned counsel for the petitioner that the learned District Judge erred in law while transferring the family suit to the court of learned Guardian Judge who lacks jurisdiction to hear and try the family cases. Places reliance on the case of Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others (PLD 2012 Supreme Court 66).

Part of Judgment : 

LAHORE HIGH COURT 

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Interim order is maintainable.

5. Learned counsel for the petitioner/father relied upon Irfan Ahmed v. II-Judicial Magistrate East, at Karachi and another 2006 MLD 135 (Karachi) and Mst. Samina Afzaal & 5 others Vs. Additional District Judge and another 2010 MLD 52 (Lahore) to state that writ petition against interim order is maintainable. Further states that no appeal is available against interim order, therefore writ petition being efficacious and adequate remedy lies against interim orders.

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

WP- Family Law
21213-14

2014 LHC 6331

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