Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner challenges the judgment and decree dated 22.1.2002 passed by the learned Judge Family Court, Kot Addu, whereby the suit for the recovery of maintenance filed by Respondent Nos, 1 to 5 was decreed and Own Muhammad, Zain Muhammad Ghazi, Ali Hiader and Sarah Sahir minors were held entitled to get Rs, 800/- per month each and Mst. Khurshid Begum Rs, 1000/- per month from the date of institution of the suit i,e, 1.5.2000. Mst. Sarah Sahir daughter and sons were to receive Rs, 800/- per month till they attain the age of 12 years and thereafter Rs, 1500/- per month till the age of attaining majority in the case of sons and uptil marriage in case of daughter, whereas Mst. Khurshid Begum was to recover Rs, 1000/- per month from 1.5.2000 to 22.1.2002. She was also held entitled to get her maintenance at the rate of Rs, 1000/- per month from the petitioner in case she settled with him in future. The petitioner filed an appeal against the aforesaid judgment and decree and during the pendency of the said appeal vide order dated 10.6.2002 the learned Addl: District Judge, Kot Addu directed the petitioner to affix Court-fee amounting to Rs, 6,975/- on the memo of appeal and also deposit an amount of Rs, 70,000/- as subsistence allowance at the rate of Rs, 500/- per head per month w.e.f. March, 2000 till 29.6.2000 and vide order dated 29.6.20002 the appeal was dismissed for non-compliance of the abovesaid order. The said order has also been challenged through this writ petition.
2. The brief facts of the case are that the petitioner and Respondent No, 1 were married with each other on 15.12.1989 and out of the wed-lock three sons and one daughter were born, who are alive.
Respondent No, 3 filed two suits i,e, suit for recovery of dower and suit for recovery of maintenance whereas the petitioner filed a suit for restitution of conjugal rights. The learned Judge Family Court consolidated all the three suits. The controversial pleadings of the parties necessitated the framing of following issues:--
1. Whether the plaintiff is entitled to get the decree for dower as prayed for? OPP.
2. Whether the defendant is entitled to get the decree for restitution of conjugal rights? OPD
3. Whether the plaintiff has no cause of action to file her suit? OPD
4. Whether the suit is not maintainable in its present from in view of preliminary Objection No, 1 of the written statement? OPD
5. Whether the plaintiff is estopped by her word and conduct to file the suit? OPD
6. Relief.
Respondent No, 1 appeared as PW. 1 and also produced Farooq Ahmad Farooqi as PW. 2, submitted nikahnama and affidavits of witnesses and closed her evidence while the petitioner appeared as DW. 1 and produced. Ghulam Shank as DW.
2. However, his right for producing the documentary evidence was struck off. All the three suits were decreed by the learned Judge Family Court vide judgment and decree dated 22.1.2002. Against the said judgment and decree the petitioner filed an appeal for the' recovery of maintenance before the learned District Judge, Kot Addu which was entrusted to the learned Addl: District Judge and has been dismissed as discussed above vide order dated 29.4.2002.
3. Learned counsel for the petitioner contends that the learned Addl: District Judge has dismissed the appeal on technical reason that the petitioner failed to comply with the order dated 10.6.2002 for affixation of Court-fee and deposit of maintenance of the respondents in the Court. It is further contended that no condition could be imposed for the entertainment of the appeal and relies upon Muhammad Abdullah vs. Mst. Zubaida Begum and another (PLJ 1985 Lah: page 153) in support of his contention. It is further contended that as the appeal was not decided on merits, impugned order may be set aside. Also relies upon Mst. Hafizan vs. Muhammad Yasin and 2 others (PLJ 1985 Lah: page 276). It is next contended that the suit for maintenance had been decreed without framing any issue in this regard, hence the case of the petitioner was seriously prejudiced thereby and the judgment and decree of the learned Judge Family Court being also nullity in the eye of law is liable to be set aside.
4. On the other hand learned counsel for Respondents Nos, 1 to 5 opposes this petition on the ground that the appeal has not been dismissed only due to the non-deposit of the amount of maintenance by the petitioner but it has also been dismissed for non-deposit of Court-fee despite, specific order within the stipulated period and he never moved any application for extension of time in this regard. Also contends that admittedly the suit for maintenance was filed by Respondents Nos, 1 to 5 and the petitioner having filed written statement was fully aware of the facts and circumstances thereof, thus non-framing of the formal issue in this regard has not caused any material irregularity and case cannot be remandd merely on this ground. Relies upon Muhammad and 9 others us. Hashmat Ali (PLD 2003 S.C. page 271) wherein the Supreme Court of Pakistan has held that "where the pleadings of the parties related to a controversial question of tact and the parties had led evidence in support of their respective stance and decision on such question could be rendered in the light of the evidence available on record, the framing of separate issue and recording of further evidence in the matter was not an essential requirement of law for rendering decision."
5. I have heard the arguments of the learned counsel for the parties and also perused the impugned orders, The appeal has been dismissed by the learned Addl: District Judge on the ground that the petitioner failed to deposit an amount of Rs, 70,000/- towards maintenance of the respondents and affix Court fee amounting to Rs, 6,975/- within the stipulated period. Learned counsel for the petitioner has rightly relied upon Muhammad Abdullah vs. Mst. Zubaida Begum and another (PLJ 1985 Lahore page 153) wherein it has been held that the appeal can be dismissed only on merits. In the cited case condition was imposed for the deposit of certain amount and due to non-deposit of the said amount the appeal was dismissed by the learned Addl: District Judge. This Court keeping in view Section 14 which is self-contained Code as regards right of appeal and finding no provision in the aforesaid section curtailing the right of appeal held the impugned order directing the deposit of the decretal amount, before hearing the appeal on merits wholly untenable and the writ petition was accepted. The relevant portion is reproduced as under: "In the absence of any provision in the aforesaid section curtailing the right of appeal as has been done by learned Additional. District Judge, I am of the opinion that the impugned order directing the deposit of the decretal amount, before hearing the appeal on merits was wholly untenable. I regret to say that the learned Addl: District Judge has read more in the Statute than what it contained and proceeding on this wrong assumption has denied a right of hearing to the appellant to have his case decided on merits."
Keeping in view the abovesaid dictum, the condition imposed by the learned appellate Court for deposit of the decretal amount for entertainment of the appeal is also declared uncalled for.
6.As regards non-deposit of Court-fee, suffice it to say that sufficient opportunity was not afforded to the petitioner to deposit the same and at least one more opportunity should be provided to the petitioner to deposit the Court fee before dismissing the appeal on this ground; Even otherwise the deposit of Court-fee was a matter between the Court and the petitioner and respondents could not be benefited by it. The petitioner admittedly has been non-suited on technical grounds/reasons and it has been consistently held by the superior Courts that technicalities should not stand in the disposal of cases on merits. In Imtiaz Ahmad vs. Ghulam Ali and 2 others (PLD 1963 S.C. 382 at page 399), his Lordship Mr. Justice B.Z. Kaikaus (as he then was) stated as under: "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impress with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All the technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The. English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to substance defeats substantive right is defective to that extent. The ideal must always be a system that gives to every person what is his."
It is also observed that through the same judgment and decree impugned in appeal before the District Court three suits filed by the parties were decreed and separate 'appeal against recovery of dower amount was also filed by the petitioner against Respondent No, 1, which later on was returned to the petitioner for lack of jurisdiction by the learned Addl: District Judge vide order dated 29.4.2002 and in W.P. No, 3516/2002 the said order having been set aside, the appeal has been ordered to be decided on merits by the learned Addl: District Judge. Hence, it is felt appropriate that both the appeals be decided on merits by the learned Appellate Court having arisen out of the same judgment. I have intentionally not commented upon merits of the case lest it may prejudice the case of either party in the lower Court.
7. In view of the above discussion this writ petition is accepted, the order dated 29.6.2002 passed by the learned Addl: District Judge Kot Addu having been passed without lawful authority is set aside and the appeal shall be deemed to be pending in the Court of learned Addl: District Judge. Both the parties shall appear there on 31.5.2004. The petitioner if affixes Court fee amounting to Rs, 6,975/- in the meanwhile, the appeal shall be decided on merits within thirty days after 31.5.2004.
There will be no order as to costs.