' MUHAMMAD MUZAMMAL KHAN, J.---Instant constitutional petition challenged remand order dated 10-12-2005 passed by the learned Additional District Judge, Jhang, to be declared illegal, void and of no legal consequence, whereby appeal filed by respondent No,3 was accepted and case was remanded to the learned Judge Family Court for fresh decision after recording of further evidence.
2. Succinctly, relevant facts are that respondent No,3 (Mst. Shehla Bibi) filed a suit for jactitation of marriage against the petitioner averring that she was married with one Ghulam Abbas and had been performing her marital obligations but petitioner falsely pretended that she is his legally wedded wife on the basis of oral Nikah, in presence of the witnesses. Respondent No,3 further averred that she could not enter into any tie of marriage with the petitioner and as a matter of fact, she never became his wife, thus prayed for jectitation.
3. Petitioner being defendant in the suit, contested the same by filing his written statement and emphasized that respondent No,3 was his wife. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. After examination of P.W.1 and P.W.2, respondent No,3 got recorded her own statement and closed her evidence on 6-11-2004. Petitioner also produced four witnesses and closed his evidence. At this juncture, respondent No,3 filed an application praying permission to produce copy of her Nikahnama with Ghulam Abbas, which was contested by the petitioner and was ultimately dismissed by the learned Judge Family Court vide order dated 5-5-2005. Suit was ultimately decided against respondent No,3, as the same was dismissed by the learned Judge Family Court vide judgment/decree dated 11-5-2005.
4. Respondent No,3 filed an appeal before the learned Additional District Judge and in memo. Of appeal she specifically urged that she was already married with Ghulam Abbas son of Umar Hayat and thus claim of the petitioner of verbal Nikah was unfounded. Learned Additional District Judge vide his judgment/decree dated 10-12-2005 accepted the appeal and remanded the case to the learned Judge Family Court, permitting the respondent No,3 to produce further evidence to substantiate, her plea of earlier marriage with Ghulam Abbas. Petitioner being aggrieved of remand of case, filed instant constitutional petition with the relief noted above. Respondent No,3 in response to notice by this Court appeared and was represented through her counsel.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Though provisions of Civil Procedure Code, 1908 were not directly applicable to the suits covered by Schedule to Muslim Family Courts Act, 1964, yet principles thereof are being adopted and applied to those proceedings. Respondent No,3 had moved an application for permission to produce her Nikahnama with Ghulam Abbas, which was dismissed by the trial Court vide order dated 5-5-2005 and this order could have been set aside by the Court of appeal against the final judgment/decree under the principles enshrined by section 105, C.P.C. Similarly, case of respondent No,3 from its very inception was that she was married to Ghulam Abbas son of Umar Hayat and subsequent claim of the petitioner of oral Nikah with her was fake. By borrowing general principles of Order XLI, rule 27, C.P.C., necessity of production of additional evidence was felt by the Appellate Court, which was competent to adjudge, the order dated 5-5-2005 passed by the trial Court, as well. Even otherwise, no injustice has been done to the petitioner through the impugned order, whereas controversy could not be put to rest without permitting respondent No,3 to produce evidence with regard to her earlier Nikah with Ghulam Abbas. Submissions of the learned counsel for the petitioner with regard to discourage of unnecessary remands by the Appellate Court, have not impressed me to hold that the impugned order was unwarranted. According to my estimations, evidence sought to be produced by respondent No,3 was necessary for just/fair decision between the parties. Above all, petitioner has been given right of rebuttal by the Appellate Court and if he in his place, feels that Nikahnama of respondent No,3 with Ghulam Abbas is not genuine, he will be given a right of leading evidence in support thereof.
6. For the reasons noted above, respondent No,1 correctly concluded the lis without committing error of law. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition, which being devoid of any merit, is dismissed with no order as to costs.