' MUHAMMAD MUZAMMAL KHAN, J.---Instant constitutional petition assailed the judgments/decrees, dated 25-3-2005 and 17-10-2005 passed by the learned Judge Family Court, Lahore, to be declared illegal void and of no legal consequence, whereby petitioner's right of cross-examining the witnesses of respondent No,1 was closed and his review petition was dismissed, respectively.
2. Precisely, relevant facts are that petitioner entered into a tie of marriage with respondent No,1 on 3-9-1993 against a dower of Rs,10,000 according to Muslim rites through a registered Nikah Nama.
This wedlock led to birth of one daughter and a son. Relations between the spouses did not remain cordial and ultimately resulted in separation. Respondent No,1 filed a suit for recovery of her dowry articles, which was contested by the petitioner, by filing his written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. During the course of recording of evidence of respondent No,1, case was fixed for 25-3-2005 for cross- examination of respondent's witnesses Bannay Mian her father but on account of profgssional pre- occupation of the learned counsel for the petitioner/ defendant he did not appear to cross examine the witnesses whereupon his right of cross-examination was closed.
3. Petitioner being aggrieved of closure of his right of cross-examination vide order, dated 25-3- 2005, filed an application for recall of this order but this application was dismissed by the learned JudgeFamily Court, (respondent No,2) on 17-10-2005 on the ground that there is no provisions of review in the Muslims Family Courts Act, 1964, hence he cannot set aside his own order. Petitioner, thereafter, filed this constitutional petition with the relief noted above. In response to notice by this Court respondent No,1 was served and she was issued postal card for today but did not appear.
Hence she is proceeded against ex parte.
4. I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Undisputedly, the learned Judge Family Court, (respondent No,2) has noted in his impugned order, dated 25-3-2005 that the learned counsel for the petitioner defendant was busy before this Court but the request of the petitioner was declined in view of his previous conduct of remaining absent. Though the reasons for declining the request for adjournment might be justified from the record but professional pre-occupation of the learned counsel for the petitioner before the High Court was sufficient ground for granting the request made there, yet the petitioner himself was present in Court but he was not called upon to cross-examine the witness. The learned Judge Family Court, was under legal obligation to grant the petitioner/ defendant an opportunity of cross-examining the witnesses Bannay Mian but he being oblivious of this legal position, passed the impugned order.
5. Similar, is the legal position of order-dated 17-10-2005 whereby recall of unjustifiable order, dated 25-3-2005 was declined on the ground that there was no provision in this behalf in the Muslim Family Courts Act, 1964. If there was no provision of review/recall of order which was bad at law then which was the provision in the said Act regarding closure of right of cross-examination. As a matter of fact, Muslim Family Courts Act, 1964 is not exhaustive to meet unseen unpredictable situations like taking of punitive action on non-filing of written statement deliberate avoidance of cross-examining the witnesses of the adversary and failure to produce evidence in spite of repeated opportunities. In these situations the learned Judge Family Court has to adopt procedure of his own choice and by applying general principles of procedure, he can take action and undo the same if some illegality comes to his notice. Scan of record and the impugned order revealed that controversy was not correctly decided and petitioner's right to cross-examine was illegally closed in spite of the fact that he could have been burdened with costs or in the alternative, case could have been adjourned to the next day thus both the orders impugned are not sustainable at law.
6. For the reasons noted above, instant petition is bound to succeed and is accordingly accepted.
The impugned orders, dated 25-3-2005 and 17-5-2005 passed by the learned Judge Family Court, are declared to be void non-existing in the eye of law, with the result that petitioner/defendant is granted only one opportunity of cross-examiningthe witness Bannay Mian of respondent No,1 on a date to be fixed by the trial Court subject to payment of costs of Rs,3,000 to respondent No,l. No further adjournment shall be granted to the petitioner and in case of absence of the learned Presiding Officer on the date fixed for cross-examination by him, the same shall be recorded by the Duty Judge working in his place. There will be no order as to costs.