1. ' IFTIKHAR HUSSAIN BUTT, J.--- This appeal has been preferred against an order of Family Court, Muzaffarabad dated 16th of October, 2006 whereby, execution proceedings dismissed in default were restored.
2. ' The brief facts forming the background of instant appeal are that the respondents filed two separate applications for the execution of decree, dated 3-8-2006 which were pending disposal.
3. Both the applications were dismissed for wilt of prosecution vide its decision dated 16-10-2006.
4. Feeling aggrieved the respondents filed two separate applications for setting aside the aforementioned orders and contended that due to the heavy rains and land sliding the road was closed, therefore, she could not approach the trial Court on the date of hearing. She further averred that the learned counsel for the respondents was ill, therefore, she could not also appear before the Court below. Furthermore, she was under the impression that the appellant has challenged the proceedings before the apex Court, therefore, the proceedings of Court below have been kept in abeyance. In support of the petitions Mrs. Nabeela Nazir, Advocate filed her affidavit.
5. ' Both the petitions were resisted by the appellant and it was alleged that the respondents did not prove any sufficient cause for her absence. It was further contended that according to the provisions of the AJK Family Courts Act, 1993, the file dismissed for want of prosecution could not be restored. The Court below after hearing both the parties restored both the files vide its order dated 16-10-2006. Both the orders have been challenged through the instant appeal which is the subject- matter of this judgment.
6. ' Arguing on behalf of the appellant, Mir Abdul Latif, the learned counsel, submitted that the Family Court is not empowered to restore any application, dismissed for want of prosecution. The learned counsel further contended that even otherwise the respondents failed to prove any sufficient cause for her absence, therefore, the Court below fell in gray error while passing the impugned order. In support of his contention the learned counsel cited an unreported judgment of this Court titled Abdul Rehman v. Mst. Mukhta Dadi alias Mukhee Begum Civil Miscellaneous No,132 of 2006, decided on 17-11-2006.
7. ' Controverting the arguments raised by the learned counsel for the appellants Mrs. Balqees Rasheed Minhas, Advocate submitted that the impugned order being an interlocutory order, the instant appeal is not maintainable. The learned counsel also argued that due to the heavy rain and land sliding respondent No,1 who is a woman and other respondents are minor children could not approach the Court below and their counsel also could not appear because of her ailment. The learned counsel pointed out that appellants have challenged the proceedings before the apex Court, therefore, the appellants and their counsel were under the impression that the proceedings before the Court below have been kept in abeyance. The learned counsel further maintained that both the applications were filed during the prescribed period of limitation, therefore, the impugned order may be maintained. In support of the arguments, reliance was placed upon the following case-law:-- ' (1) 2005 SCR 409 and (2) 2006 SCR 104.
8. 'The arguments were heard pro and contra. The file and the case-law was also perused with care.
9. At the very outset, it will be relevant of the point out that the impugned order has been passed for the restoration of the execution proceedings initiated against the appellants which were dismissed for want of prosecution. Undoubtedly the orders for the restoration of the files dismissed for want of prosecution, are interlocutory orders because these orders do not finally dispose of the dispute between the parties. Section 14 of AJK Family Courts Act, 1993 (hereinafter to be referred as the Act) postulates that "any party aggrieved by a decision or a decree passed by a Family Court under this Act may, within thirty days of the date of such decision or decree, prefer an appeal to the Shariat Court. In this manner no provision was enacted to challenge the interlocutory matters by way of appeal or a revision petition because the Act was promulgated and the Family Courts were established for expeditious settlement and disposal of disputes relating to marriage, family affairs and for matters connected therewith.
10. ' In this view of the matter the present appeal is not maintainable against the aforesaid interlocutory orders. In this regard I am fortified by a case reported as Mst. Nasim Bashir v. Abdul Jabbar 2004 M LD 510. In the case under report, the cases were dismissed in default in absence of the party or the counsel. The applications for restoration of the above mentioned suits were filed before the trial Court which were accepted subject to payment of costs. The appeal filed on behalf of the respondent challenging the order of restoration of the suits before this Court was accepted but the apex Court set aside the judgment of this Court and opined in the following manner:-- "Therefore, keeping in view the phraseology employed in use of words 'decision' or 'decree' in section 14 of the Family Courts Act, 1993 in the light of dictionary meaning approved by the wisdom of the learned Judges while resolving the controversy in above referred authorities, we can safely arrive at a conclusion that interlocutory matters which do not finally dispose of the cases are not appealable before the Shariat Court. It follows that the appeal filed before the Shariat Court against the order recorded by the Judge Family Court for restoration of the suits was not competent. Therefore, the order passed by the Shariat Court was not maintainable as such is set aside by accepting the appeal. As the matter has been disposed of on the aforesaid point therefore we do-not feel any necessity to advert to other points raised by the parties .
11. Consequently, the suits shall proceed in the trial Court. The case-law referred to by the learned counsel for the parties due to its distinct facts is not squarely applicable to the case in hand as such is not discussed."
12. ' The aforementioned view was affirmed in case titled Mst. Shanaz Bibi and 2 others v. Munawar Din 2005 SCR 409 and it was observed that no appeal is competent against an interim order.
13. ' This view was further reaffirmed in a case reported as Muhammad Ramzan v. Rukhsana Kousar and another 2006 SCR 104.
14. ' A careful perusal of the above cited authorities show that the Legislator was wise enough not to introduce any provision for challenging the interlocutory matters before this Court, therefore, under section 14 of the Act only a decision or decree passed by Family Court was made appealable before this Court. In such state of affairs the present appeal is not maintainable, against interim order.
15. ' Even otherwise the respondent has proved sufficient cause for her absence because on account of heavy rains and land sliding she could not approach the Court at relevant time. She is a woman and other respondents are her minor children. She is pursuing the facing execution proceedings and her counsel who is also a lady could not appear before the Court because of her ailment. The petitions for restoration have also filed within 9 days of the dismissal. An affidavit in support of the averments has been filed by the learned counsel. The cumulative effect B of all aforementioned facts and reasons do constitute a sufficient cause for non-appearance of the respondents before the Court below.
16. ' So far as an objection raised by the learned counsel for the appellants is concerned that learned Judge Family Court was not competent to restore an application dismissed in default because rule 12(2) of the AJ&K Family Courts Procedure Rules, 1998, (hereinafter to be referred as Family Courts Rules) do not cover the case of an application and a suit only. No doubt Rule 12(2) of Family Courts Rules, postulates that the Court is empowered to restore a suit only but at the same time according to the definition clause, Rule 1 clause (e) of Family Courts Rules, the word "suit" includes an application for the custody of children or guardianship. It was held in Mst. Zarina Begum's case 1996 SCR 82 that even though Qanun-e-Shahadat and C.P.C. Are not applicable to the proceedings before the Family Courts or the Shariat Court but despite that the general principles of the law of evidence and procedure cannot be departed from and are to be followed.
17. ' In Rubina Fazal's case 2005 SCR 37 the following principle was enunciated:-- "No doubt the provisions of C.P.C. And the Evidence Act are not applicable in the proceedings conducted under the provisions of Family Courts Act, 1993, however, the inherent powers are available to the Courts which are invoked when any situation is not covered by express provision of law and where the Courts feel that justice is to be done, then in such peculiar circumstances even though no procedure is prescribed for such occasion, the Courts in exercise of inherent powers in such exceptional circumstances allow the parties such relief which in their opinion would meet the ends of justice. In suitable cases where no codified law is available, the Courts have got inherent competence to determine how their proceedings should be conducted. The Courts can adopt a suitable procedure which is nearer to the principle of justice. Under the provisions of the Family Courts Act, 1993 there is no absolute bar on the powers of the Family Courts that these cannot allow any suit to be restored where it is dismissed in default or these cannot allow a party to amend its pleadings. Therefore, the learned Judge in the Shariat Court while placing reliance upon the case titled Mst. Zareena Begun v. Nisar Hussain and another 1996 SCR 82 rightly allowed the amendment application of the respondent, whereby he wanted to raise the question of divorce."
18. ' The close scrutiny of above case-law shows that in absence of any express provision of law, the Court while invoking its inherent powers can adopt any suitable procedure nearer to the principle of justice. In the instant case under the provisions of Family Courts Rules the Family Court can restore a suit dismissed in default, therefore, there should be no bar on a family Court to restore an application dismissed for want of prosecution. Coming toward C.P.C. An identical provision has been introduced in Order IX, rule 4, C.P.C. Which deals with the restoration of suits. The aforementioned rule postulates that in case of dismissal of a miscellaneous application for want of prosecution, an aggrieved person could seek the remedy for restoration of his petition or file a fresh petition. In this regard I am fortified by a case titled Azeez Dili and another v. Qadir Buksh and 2 others PLD 1987 Lah.
19. 119.
20. ' As stated earlier a miscellaneous application can also be restored by a Civil Court under the provisions contained in Civil Procedure Code along with a suit, therefore, the word "suit" appearing in Rule 12(2) of Family Court Rules also includes an application. Therefore, an application can also be restored by a Family Court like a suit. According to the Law Lexicon by Justice T.P. Mukherjee (Fourth Revised and Enlarged Edition), the word "suit" has been judicially defined at page 736 as under which also includes the execution proceedings:-- ""Suit" in its common parlance is a term of a wide amplitude. Broadly, a "suit" is a proceeding in a Court of justice for the enforcement of a right denoting a legal proceeding of a civil kind. It is a proceeding in a Court according to the forms of law to enforce the remedy to which a party deems itself entitled. Lord Coke defines a suit to be 'action nihil aliud est, quam jus persequendi in juidicio quod sibi debetur" meaning "an action is nothing else than the right of pursuing in a Court of justice, that which is due to one". Blackstone simply says that a "suit" is a legal demand of one's rights. In its generic sense, a "suit" is the pursuit or prosecution of some claim. The term "suit" in its comprehensive sense may be treated as applying to any original proceeding in a Court of justice by which a party pursues the remedy which the law grants him. The modes of proceeding may be various depending upon the different stages in the litigation, that is, proceedings in the original Court, Court of appeal, proceedings in the nature of review or revision and execution proceedings.
21. The legal signification of the word "suit" is very broad, and the term has also a much narrower meaning when it -is examined in the procedural sense." (underlining is mine).
22. ' In the light of the above discussion, I am unable to subscribe the view taken by my learned brother in the case referred to by the learned counsel for the appellants.
23. 'For the foregoing reasons, I see no force in this appeal which is IF hereby dismissed.