' An ex parte decree of dissolution of marriage was passed by a Family Court against the petitioner and in favour of respondent No,
2. On an application of the petitioner this ex parte decree was set aside by the Family Court after it was satisfied that the service was not duly effected. This order was reversed in appeal by the learned Additional District Judge, Sheikhupura. Hence this writ petition.
2. Learned counsel for the petitioner argued that the order of the Family Court setting aside the ex parte decree was not appealable under section 14 of Family Courts Act. He relies upon Mian Manzar Bashir and others v. M. A. Asghar & Co. and Farhat Ullah Khan v. Mustafa All Khan.
3. Both these cases are under section 15 of the W. P. Urban Rent Restriction Ordinance. In the Supreme Court case an ex parte order of ejectment was refused to be set aside. It was in these circumstances that it was held by Noorul Arfin, J. In N. Q. Industries v. Mrs. Bapal Kaikhusro that such an order approximate in nature to an order of eviction under section 13 and was, therefore, appealable under section 15(1) (b) of the Ordinance. This case was cited with approval by their Lordships of the Supreme Court in the case of Mian Manzar Bashir. However, a distinction was drawn between a case where the Rent Controller refused to set aside an ex parte order and one where the proceedings were reopened from the ex parte stage to give reasonable opportunity of showing cause against the application for ejectment. It was held that it was an interlocutory order which was not appealable. Same principle was repeated in Parhat Ullah Khan v. Mustafa Ali Khan.
The question is whether this principle should be applied in a case under the Family Courts Act.1 2 3
4. The question whether under the Family Courts Act also interlocutory orders were appealable under section 14 of that Act came up for consideration in Syed Muhammad Raza Shah v. Sayeda Salma Gilani. Section 14 of the Act provides an appeal against decree or decision. In so far as decrees are concerned, there is no doubt that they can be passed at the stage of finality of the proceedings. The term 'decision' however was interpreted in this case as referring to final decisions of matter which did not culminate in a decree and which were referred to in various provisions of the Family Court Act, i. e. Sections 13, 15 and 16. It was held that interlocutory orders are not, however, appealable under section 14 also as is clear from para. 7 of the judgment which is reproduced below :- "I agree with the learned counsel for the respondent that the word 'decision' must mean a State of facts judicially determined. I also agree with his argument that if the intention of the Legislature be to use the word 'decision' as inclusive of interlocutory orders, the scope of section 14 cannot be narrowed down by reference to analogies from other enactments. We have to interpret the word 'decision' by reference to the provisions of the Act keeping in mind its object. It cannot be doubted, as held in Qudrat Ullah v. Iqbal Begum and Wajahat Ali v. Ghazala that < the purpose of the Act is to shorten litigation. The preamble of the Act also provides that it is enforced for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith. With this end in view it has been specifically laid down that except for sections 10 and 11 of the Code of Civil Procedure, no other provision of that Code or any provision of the Evidence Act provides a procedure of is own which is as free from technicalities as possible.
Before the Law Reforms Ordinance, 1972, was enforced, the Code of Civil Procedure read with West Pakistan Civil Courts Act, provided two appeals against a decree in cases where an appeal was competent before the District Judge. It also provided under section 115 for exercise of revisional jurisdiction against order which amounted to case decided. Its section 104 and Order XLIII, rule 1 make some interlocutory orders appealable. After the enforcement of the Law Reforms Ordinance, second appeal is competent only in cases where the value of the property involved exceeds Rs, 2,000 but the appellate decrees of the District Judge even now are subject to the revisional jurisdiction of the High Court. By providing in section 17 of the Act that C. P. C. Shall not apply to proceedings before Family Court, the guarantee of a dual appeal or of revisional jurisdiction against all orders amounting to cases decided has been taken away. Section 14 of the Family Courts Act provides only for one appeal. Its subsection (2) makes some decrees unappealable and final. These provisions read with the objective of the Act described in the preamble is an instrinsic aid to the interpretation of the word 'decision: I agree with the argument of the learned counsel for the petitioner that it will create an anomaly if it is held that on the one hand the matters falling under subsection (2) of section 14 are not appealable and on the other hand all the interlocutory orders which may cultimate in decrees governed by subsection (2) should be held to be open to appeal. The wider interpretation will defeat the object of expeditious disposal of the suits since such disposal will be obstructed like civil suits, if every order which amounts to a case decided within the meaning of section 115, C. P. C. Is held to be appealable under section 14 of the Act. The expeditious disposal will be indefinitely obstructed by the process of numerous appeals against interim orders. In these circumstances it will be unreasonable to hold that the Legislature which had whittled down the right of appeal against final decrees and had taken away even the revisional jurisdiction which it is within the discretion of the revisional Court to exercise, would vest the litigants with a right of appeal against the same category of orders which under the Code of Civil Procedure are revisable. A similar question arose on the interpretation of section 15 of the West Pakistan Urban Rent Restriction Ordinance before the Supreme Court in Ibrahim v. Muhammad Hussain PLD 1975 SC 457. A view which was contrary to the prevailing view was taken by their4 Lordships and it was held that an interlocutory order for deposit of rent passed under section 13(6) of the Ordinance was not appealable under its section 15."
5. Applying the principles of the authorities under the Rent Restriction Ordinance as well as the above case under the Family Courts Act, I am o the view that an order reopening the case after setting aside the ex part decree in order to give an opportunity to the defendant to show cause and to put up his point of view before the Court does not amount to a decision within the meaning of section 14 of the Family Courts Act and as such it was not appealable. I, therefore, allow this petition and quash the order of the learned Additional District Judge as having been passed without lawful authority. Since the respondent has not put in appearance to contest this case, I leave the parties to bear their own costs. PLD 1978 SC 185 PLD 1979 Lah. 132 PLD 1968 Kar. 589 PLD 1976 Lah. 1015