This judgment will dispose of Civil Revision No. 705/69 and Civil Revision No. 30/70. In both cases, the revision petitions are directed against interlocutory orders. In Civil Revision No. 705/69, the order impugned is dated 28-4-69 passed by Ch. Abdul Hafeez Cheema, Civil Judge, Lahore, with powers of Judge, Family Court, whereby he refused the prayer of the petitioner to summon certain witnesses for cross-examination; while Civil Revision No. 30/70 is directed against the order dated 24-11-1969 passed by Mian Muhammad Arshad, Judge, Family Court, Lahore, whereby he directed that two witnesses out of four desired to be produced by the petitioner should be treated as having been given up because of failure of the petitioner to comply with the earlier directions issued in connec--petition with the summoning of the said two witnesses. These two cases have been heard together because a common question of law arose in both the said petitions, namely, whether these orders are revisable under the provisions of section 115, C. P. C.?
2. Raja Mahmood Akhtar, Advocate, in support of these petitions relied upon Mst. Gaman v. Taj Din (PLD 1968 Lah. 987) which is a judgment of Single Bench in which it has been bell that the Family Court established under the West Pakistan Family Courts Act, 1964, is a Court of law as contemplated in Article 1102 read with Article 242 of the 1962-Constitution and is from all points of view a Court subordinate to the High Court, within the meaning of Article 102 of the Constitution.
The present petition, however, is not a petition under Article 102 of the Constitution but a petition under section 115, C. P. C. This provision lays down that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and make such orders in relation thereto as it thinks fit. Section 3 of the C. P. C. Enacts that for the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.
The question therefore is whether the Family Court is a Court subordinate to the High Court for the purposes of the Code of Civil Procedure.
3. With reference to this contention learned counsel for the petitioners drew my attention to a Full Bench judgment of the Lahore High Court namely, Works Manager, Carriage and Wagon Shop v. K.
G. Hashmat (AIR 1946 Lah. 316) wherein their Lordships after laying down the test to find out whether a certain Tribunal is a Court or not went on to hold that the "Authority" appointed under section 115 of the Payment of Wages Act, 1936 performing as it did the delegated functions of the State and proceeded in exercise of its functions in a judicial manner was to be regarded as a civil Court and that it is a Court subordinate to the High Court within the purview of section 115, C. P. C.
And section 44 of the Punjab Courts Act. In a subsequent Full Bench ruling of the Lahore High Court reported as the Corporation of the City of Lahore v. Mst. Fahmida Begum (PLD 1952 Lah. 258) where the question arose if the orders of the Rent Controllers could be revised under section 115, C.
P. C. It was held that the Rent Controller and the Appellate Authority under the Punjab Urban Rent Restriction Act (VI of 1947) are not Courts and in any case not Courts subordinate to the High Court and a revision against their orders is not competent under section 115, C. P. C. In coming to this conclusion reliance was placed on the majority view expressed in another Full Bench judg--ment, namely Sultan A.I Nanghiana v. Nur Hussain (AIR 1949 Lah. 131). A passage extracted from the judgment recorded by Munir, A. C. J., appearing at page 161 of the report wherein reference has been made to section 3 of the Code of Civil Procedure is relevant in this context and may be reproduced with the advantage. "This is the only definition of subordination given in the Code and the presumption is that the word "subordinate" in section 115 of the Code is used in the sense in which it is defined in section 3 and section 44, Punjab Courts Act, also uses the word "subordinate" and the only section of that Act that defines and enumerates subordinate civil Courts is section 18, which says that besides the Courts of Small Causes established under the Provincial Small Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be the following classes of civil Courts, namely, (1) the Court of the District Judge (2) the Court of the Additional District Judge ; and (3) the Court of the subordinate Judge. This section cannot be taken to mean that the Courts, established under any other enactment for the time being in force are all subordinate to the High Court. It is, however, true that in several decisions some Courts which are not specifically mentioned either in the Code of Civil Procedure or section 18, Punjab Courts Act have been held to be subordinate Courts for the purposes of suction 115, C. P.
C, I cannot accept the broad and unqualified proposition that once it is held that an officer, authority, or functionary is exercising the functions of a Court in relation to rights that may be called "civil" that officer, authority or functionary must be held to be subordinate to the High Court.
The result of any such finding would be that all Courts which adjudicate upon the civil rights of subjects whether in cases between the subjects themselves or between the State and the subject will be subordinate to the High Court and this will bring within the sphere of subordination not only the revenue Courts which admittedly decide civil dispute between the parties but also the income- tax authorities which determine the subject's liability to the State". I respectfully agree and may add that the words "subordinate Court" in section 115 of the Code of Civil Procedure ought to be understood in the sense given to them in section 3, otherwise the words "for the purposes of this Code" I would be rendered useless. Since section 3 is enacted for the purposes of the Code and deals with all the civil Courts and their subordination to one another, the inference appears to be irresistible that no Court other than that mentioned in it can be said to be subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure.
Mr. Mumtaz Hussain, Advocate, appearing on behalf of the Advocate-General in response to a notice issued to the latter, drew my attention to three judgments from the criminal jurisdiction in support of the view that a Court or Tribunal of an "inferior" rank cannot be deemed to be subject to the revisional jurisdiction of the High Court only because of its being inferior in rank to the High Court. In Hari Meah v. State (PLD 1959 SC (Pak.) 307) a Special Magistrate appointed under the East Pakistan Food (Special Courts) Act, 1956, not being a First Class Magistrate appointed under the Criminal Procedure Code was held not to be a Court from whose judgment an appeal would lie under the provisions of section 408 of the Cr. P. C. In Sakhi Muhammad v. Wajid A.I etc. (PLD 1964 Lah. 426) it was held that a Court exercising criminal jurisdiction under special statute with regard to offences created by such statutes cannot be regarded as inferior criminal Court simply because under special Statute such a Court is "deemed to be a Court of Magistrate of the 1st Class under the Code of Criminal Procedure, 1898". The principle mentioned above was again reiterated in a recent judgment reported as Qazi Saleem v. Manager, National Products Co. (PLD 1970 Kar. 33) where orders passed by the Industrial Court were not held to be revisable under sections 435 and 439 of the Criminal Procedure Code by the High Court. The learned Judge in the course of his judgment observed "the crux of the whole question i.e. Whether the case is tried by a special kind of tribunal specially brought into existence by a statute or it is tried by a Court of Magistrate constituted under the Criminal Procedure Code. The Industrial Court is not a Court constituted under the Criminal Procedure Code but it is constituted under the Industrial Disputes Ordinance and despite the fact that the powers of a First Class Magistrate for trial of the offence are conferred upon it, no revision is maintainable." Although these authorities do not deal with the question under consideration and are, not, therefore, strictly relevant, they do throw some light on the general proposition that a Court which is inferior in rank to the High Court is treated as subordinate to it for purposes of exercise of revisional jurisdiction only if it has been declared subordinate to it by a statutory provision.
5. Mr. Mumtaz Hussain, Advocate, has in fact submitted that the provisions of Code of Civil Procedure are not intended to be applied except in certain special circumstances in matters covered by Family Courts Act and is support of this proposition drew my attention to the salient provisions of Family Courts Act. Section 3 of the Act lays down that the "Government shall establish one or more Family Courts in each District or at such other place as it may deem necessary and appoint a Judge for each of such Courts". The qualification of the Judges to be appointed is prescribed in section 4 which provides that "no person stall be appointed as a Judge of a Family Court unless he is or has been a District Judge, an Additional District Judge or a Civil Judge." This shows that a Judge of the Family Court need not be a serving District Judge or a serving Additional District Judge or a serving Civil Judge but can also be a person who has held such a capacity.
Section 5 of the Act lays down inter alia that the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule. The question of appeals is dealt with under section 14 of the Act. An appeal is provided to the High Court where the Family Court is presided over by a District Judge or an Additional District Judge but to the District Court in any other case. Thus section 14 prescribes the Code Procedure for redress against decisions given and decrees passed by the Family Court. It is suggested that because of the existence of this provision the powers of the High Court to exercise revisional powers under section 115, C. P. C. Are done away with. Section 16 of the Act empowers the Family Court to punish persons guilty of its contempt. Section 17 of the Act lays down that save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872 and the Civil Procedure Code, 1908, except sections 10 and 11 thereof shall not apply to proceedings before any Family Court. The provisions of section 17 of the Act are most significant and in my view provide an index to the intention of the Legislature.
The application of the Evidence Act and the Civil Procedure Code except to the extent stated, has been specifically excluded. The observations of Qadeeruddin Ahmed, J., as his Lordship then was, in Begum Zainab Tiwana v. Aziz Ahmad Waraich (PLD 1967 Lah. 977) are pertinent in this context. His Lordship observed that section 17 of the Family Courts Act was enacted with a view to implement a recommendation of the Law Reform Commission of 1958-59, which opined:- "In order to provide a cheap and speedy remedy to married women, orphans, sisters and daughters, who are generally handicapped for lack of funds, it appears necessary to set up Special Family Laws Courts, which will not be hide-bound by the technicalities of the C. P. C. Or the Evidence Act. They should instead follow a very much simplified procedure. We agree with the proposal made by the Commission on Marriage and Family Laws to the effect that the Legislature should lay down a few fundamental principles for the guidance of such Courts and the remaining procedure should be regulated by simple rules to be framed by the High Courts. The object aimed at should be that substantial justice should be ensured to the parties who will have recourse to these Courts and, therefore, there should be a certain amount of flexibility in the procedural rules that shall govern these Courts."
This intention would be frustrated if every case was liable to be carried to the High Court under section 115, C. P. C. The object of this Act is to provide a speedy method of settling) family disputes and if orders of interlocutory character are to be brought to the High Court, this object would be defeated. Under the provisions of the Act the family Court is subordinate to the High Court if it is presided over by a person who is or has been District Judge or an Additional District Judge and to the District Court in any other case, vide section 14 of the Family Courts Act. But merely because of this subordination to the) High Court it does not automatically follow that the orders passed by such a Court become revisable by the High Court. The revisional power is contained in section 115 of the C. P. C. However, by virtue of section 17 of the Act, the application of the provisions of the Code of Civil Procedure are excluded, except for certain limited purposes which are specified in the Act. Moreover, the Civil Procedure Code does not, as provided in section 4 override any special or local law. The provisions of section 17 of the Family Courts Act must, therefore, be given their full effect with the result that even if the Family Court is regarded as a Court subordinate to the High Court, the effect of section 17 of the Act is to exclude the orders of the Family. Court from the operation of section 115, C. P. C. And the said provision of law is not available for obtaining revision of orders passed by the Family Courts. In somewhat similar circumstances, in the case of Hafeez Ahmad v. Barkat A.I (PLD 1955 Lah. 629), Mr. Justice B. Z. Kaikaus also took a similar view.
6. The upshot of this discussion is that the revision petitions filed to challenge the orders passed by the Family Courts in ques--petition are not maintainable. Both these petitions, therefore, fail and are dismissed herewith. In all the circumstances there will be no order as to costs.