' SYED QALB-I-HASSAN, J.--- The dispute in this petition arises out of a pending suit under West Pakistan Family Courts Act, 1964 filed by respondent No,1 against the petitioner in which his defence was struck off on 5-7-2008 and the case was adjourned for evidence of respondent No, 1 .
2. The facts giving rise to the present writ petition are that respondent No,1 filed a suit for jactitation of marriage against the petitioner on 19-3-2008 and the case was adjourned for 1-4-2008 for appearance of the petitioner. The case was again adjourned and the petitioner was served through registered post acknowledgment due and through courier service for 11-4-2008 but nobody has appeared on behalf of the petitioner, therefore, fresh notices were again issued through registered post acknowledgement due for 25-4-2008. On the said date, Presiding Officer was on leave and the case was adjourned for 14-6-2008 and the petitioner was again served through publication of notice in daily "Nawa-i-Waqt" along with fixation of notice for 21-6-2008. The petitioner appeared on 21-6-2008 and was directed to file the written reply and the case was adjourned for 28-6-2008. On 28-6-2008, petitioner was again directed to file the written reply and the case was-adjourned for 5-7-2008. The petitioner did not file the written reply on the said date and moved an application for contempt of Court against the respondent No,
1. Learned Family Court struck off defence of respondentNo,1
3. The petitioner has assailed the interlocutory order passed by the Family Court through the instant writ petition.
4. Learned counsel for the petitioner contended that the learned Family Judge did not apply his judicial mind and passed the impugned order in haphazard manners and the same is not sustainable. Learned counsel further contended that the impugned order is outcome of misreading and non-reading of material facts on file and prayed for setting aside the order by declaring it as null and void. Learned counsel for the petitioner supported his contentions by placing reliance on:- -- ' Maqsood Ahmed v. Judge, Family Court, Burewala and 5 others 2001 CLC 567 (Lahore), Lt.-Col. Mohsin Shah v. Mst. Qaseema Wahid and others 1995 M LD 1032 (Lahore), Zulfiqar Ali v. Ch. Munir Ahmed and another 1999 CLC 731 (Lahore), Ghulam Muhammad and others v. Munir Ahmed Shah and others 1994 CLC 14 (Lahore), Javed Akhtar v. Nasreen Akhtar and another 2007 M LD 803 (Lahore) and Makhdoom Ali v. Mst. Razia Sultana and others 2007 M LD 41 (Lahore).
5. Learned counsel for the respondent contended that the petitioner has adopted delaying tactics to harass respondent No,
1. The Family Court has provided sufficient time to file the written reply but the petitioner has failed to submit his reply, therefore, learned Family Court has rightly struck off the defence of the petitioner. Learned counsel also raised preliminary objections regarding the maintainability of this petition and argued that the interlocutory order under attack is not challengeable through the constitution petition.
6. First question in this petition is whether the writ petition is competent against the impugned order. On perusal of the impugned order, although defence was struck off but the case is pending and adjourned for evidence of respondent No,1, therefore, the learned Family Court did not determine rights of parties inter se and passed an order incidental and ancillary in its nature regulating the procedure of the Court for trial. Since the suit is still pending, interlocutory order passed by Family Court could not be deemed to have passed final decision, so as to render it appealable before the District Court or subject to judicial scrutiny before this Court in exercise of constitutional jurisdiction. In case titled Muhammad Arif-ud-Din v. Mst. Mujeeb-un-Nisa and 3 others the learned Single Judge of Sindh High Court, his Lordship Rana Bhagwan Das, J. (as he then was) observed in the following:--- "Where defendants' side was closed due to non-production of evidence, such order did not determine rights of parties inter se and was incidental and ancillary in its nature regulating the procedure of Court for trial of suit for maintenance---Suit against defendants being still pending decision, interlocutory order passed by Trial Court could not be deemed to have attained finality so as to render it appealable before District Court or subject to judicial scrutiny before High Court in exercise of its constitutional jurisdiction---Each and every order passed by a Court of law would not amount to decision---Orders regulating mode of proceedings before Court and not deciding rights and obligation of parties, finally, cannot be treated as "decision given", amenable to appeal- --Appeal against order in question, whereby defendant's side was closed was not competent--- Likewise constitutional petition against said order was not maintainable."
7. That like section 14(3) of the Family Courts Act, 1964 a specific bar has been imposed to challenge the interlocutory orders in different Rent Restriction Ordinance and there are number of judgments under West Pakistan Urban Rent Restriction Ordinance, 1959 and Cantonments Rent Restriction Act, 1963 wherein it has been held that if Legislature has not made an interim order appealable, the writ petition cannot be permitted to be filed to challenge such an order appeal from or called into question in writ jurisdiction before the High Court.
8. For the above said discussion, there is no merit in this petition which is without any substance. It is accordingly dismissed. Since the proceeding in the learned Family Court were stayed by this Court on the application moved by the petitioner, trial Court shall take steps for early decision of this suit strictly in accordance with law and without unreasonable delay.