' The validity of the judgment and decree, dated 5-1-1980, passed by the Judge, Family Court, Jhang has been assailed through the present petition.
2. Respondent No, 2 filed suit for dissolution of her marriage with the petitioner. After the written statement had been filed by the petitioner, the learned Court fixed a date for pre-trial hearing of the case as envisaged by the provision contained in section 10 of the West Pakistan Family Courts Act, 1964 (hereinafter called as the Family Courts Act). It is admitted that as many as six opportunities were granted to the petitioner for his personal appearance at the pre-trial stage so as to find out whether there was possibility of reconciliation between the parties. Since the petitioner did not appear in the Court on 5-1-1980, therefore, an ex parte decree was passed against him for dissolution of marriage.
3. It has been contended by Mr. Laqa Haider Zaidi, learned counsel for Respondent No, 2, that since the provision as contained in section 10(2)(3) of the Family Courts Act is mandatory and the parties have to appear before the Court at the pre-trial stage in compliance with the order, if so passed by the Court, and the petitioner did not appear in spite of service, therefore, the suit has been rightly decreed against him.
' It is contended that the learned Judge, Family Court, had jurisdiction to decide the matter rightly or wrongly and as such the petition under Art. 199 of the Constitution, invoking the extraordinary jurisdiction is not competent, there being no illegality or excess, of jurisdiction on the part of the Court. According to him a particular mode has been prescribed by the Legislature for effecting compromise between the parties and under the law that particular mode in that manner has to be followed. The learned counsel has contended that in the event of disobeying the order of the learned Judge, Family Court, for his personally appearance, the petitioner is not entitled to be shown any indulgence.
' The main question involved in the present case is as to what is the effect of having not appeared personally before the Family Court by a party in compliance with its order passed under section 10 of the Family Courts Act ; whether ex parte decree can be straightaway passed or further proceedings as envisaged by section 11 of the Act should take place. It has been contended while relying upon rule 10 of Order 8, C. P. C., that the present suit has been rightly decided on account of the failure of the petitioner to appear personally.
' Under the aforesaid rule 10 of Order VIII, C. P. C. If a party, from whom a written statement is required to be submitted, fails to do so within the time fixed by the Court, judgment against that party can be pronounced.
4. I am afraid, this contention has no force, as no such parallel provision exists in the Family Courts Act itself. The learned counsel for the contesting respondent has relied upon Sadiq Ali v. Mst. Bashir Bibi and another (1), Abdur Rauf v. Mst. Anwar Khatoon (2), Lal v. Mst. Inayat Bibi and another (3), Muhammad Ishaque v. Ch. Ahsan Ahmad, Judge Family Court (4), Muhammad Sadiq Hussain v.
Mst. Khurshid Fatima and another (5) {{FOOT NOTE}}
(1) 1979 CLC 647 (2) PLD 1976 Lah. 1598
(3) PLD 1975 Lab. 567 (4) PLD 1975 Lah. 1118
(5) 1978 SCMR 130 {{FOOT NOTE}} ' and F1.-Lt. Anwar-ul-Hassan Siddiqui v. Judge, Family Court No, III, Karachi and 2 others (1) in order to show that the provision as contained in section 10(2)(3) of the Family Courts Act being mandatory, the same having not been followed by the petitioner ex parte decree has been rightly passed against him.
5. I am afraid, the facts of all the cases cited by the learned counsel are different from the facts of the present case and as such they are not applicable. In 1979 C. L. C., the main ground of attack against the order in question was non-compliance of the provision of section 10(3) of the Family Courts Act and section 12 of the Act. The finding of the Judge, Family Court with regard to pre-trial and after-trial proceedings in the absence of the spouses was that compromise-had not been effected and reconciliation between the parties was not possible. It was contended that since the aforesaid provision was mandatory, therefore, it could not be said to have been complied with in the absence of the spouses in the Court, as no attempt for reconciliation could be said to have been rightly made. It was held that though the provision mentioned above was mandatory, but its non-compliance was a mere irregularity. The learned Single Judge, however, declined to hold the proceedings to have been vitiated as according to him it was possible for the parties to express themselves through their attorneys or advocates. As held in Muhammad Sadiq Hussain's case. It was further observed while rejecting the petition that even otherwise there was nothing in the proceedings to suggest that the parties were in any mood, at all, to accept the suggestion of reconciliation as the respondent before the High Court had recorded in her evidence on 10-10-1977 that she was not prepared to go to the house of her husband in any case. In spite of the fact that the learned Judge, Family Court had not complied with the provision as contained in section 10(2)
(3), in order to find out whether there was possibility of reconciliation between the parties by holding the proceedings in that behalf in the presence of the spouses, it was held that it was a mere irregularity and the proceedings did not stand vitiated.
6. In PLD 1976 Lahore, the learned Judge, Family Court, did not record the statements on oath of the spouses present before him in relation to the proceedings under section 10 of the Act, nor he maintained the record of the demeanor of the parties.
' It was contended that as such the finding of the learned Judge with regard to pre-trial and after- trial stage being illegal was liable to be set aside.
' It was held that no specific procedure for making attempts for conciliation was prescribed by any provision of the Act; it was rather left to the discretion of the Judge. This case is obviously not applicable to the facts of the present case.
7. PLD 1975 Lah. 567 has been relied upon in order to show that in exercise of inherent powers the learned Judge, Family Court was justified in granting ex parte decree on account of the failure of the petitioner to appear personally in the reconciliation proceedings.
' It am afraid, the facts of this case are absolutely different. In that case it was held that the Family Judge was competent to consolidate the suits-one for dissolution of marriage and the other for restitution of conjugal rights, {{FOOT NOTE}}
(1) PLD 1980 Kar. 477 {{FOOT NOTE}} ' in order to meet the ends of justice and to prevent the abuse of process of law and further to avoid conflict of judgments.
8. In PLD 1975 Lah. 1118, it was held that an attempt on the part of the learned Judge, Family Court to effect compromise or reconciliation was not a mere question of formality, it was an important function which he had to perform in cases tribal under the Family Courts Act. It was held that where he failed to do so, he failed to exercise essential part of jurisdiction vesting in him and thus acted without lawful authority. As a consequence of that the judgment of the learned Judge, Family Court was set aside.
' It may be mentioned that view of the Lahore High Court as expressed in 1979 CLC referred to above, is contrary to the view expressed in this judgment. In that judgment such failure has been held to be a mere irregularity. This view is based upon the judgment of the Supreme Court reported in 1978 SCMR, referred to above.
9. In 1978 SCMR counsel of the petitioner before the Supreme Court was questioned by the Judge, Family Court. It was held that at the most examination of father of the petitioner instead of him was an irregularity not affecting the outcome of the suit.
10. In PLD 1980 Karachi, the petitioner before the High Court who was defendant before the Judge, Family Court, got many adjournments for filing his written statement. On the last date, when he was proceeded against ex parte, it was disclosed by his counsel before the Judge, Family Court that since he had left for China, therefore, further opportunity to file written statement might be granted.
This request was turned down and the petitioner was proceeded against ex parte. Thereafter, the learned Judge fixed next date for producing ex parte evidence of respondent No, 3 in the case.
11. It will be seen that except PLD 1980 Karachi, facts of all other cases, cited above, are different from the present case. In all those cases the Judge, Family Court was alleged to have violated the mandatory provision as contained in section 10(2)(3) of the Act and in spite of that the order passed by the Family Court was held to be a mere irregularity and was not held to have vitiated the proceedings on account of the non-compliance of the mandatory provision.
12. In the present case, an attempt was made by the learned Judge, Family Court to comply with the aforesaid provision by summoning the petitioner to appear personally for reconciliation purposes at the pre-trial stage. The question which arises for consideration is : as to whether on account of his non-appearance, ex parte decree against him should have been passed straightaway or further proceedings should have been held as contemplated by subsection (4) of section 10 of the Family Courts Act.
' At the most, the inference which can be drawn from the conduct of the petitioner in not appearing personally before the Court is that he was not interested in the reconciliation proceedings at the pre-trial stage. I am of the view that no other inference can be drawn by his such conduct. If a party is called upon by civil Court under the relevant provision of law to make better statement in order to enable the Court to frame issues properly and that party does not appear, then inference can be drawn that the party is not interested to render proper assistance to the Court in framing the correct issues. That, however, does not mean that ex parte decree can be passed against such party. By not appearing personally the petitioner in the present case showed by his conduct that he was not interested to effect reconciliation and since no compromise or reconciliation was possible, the procedure as contemplated by subsection (4) of section 10 was to be followed by framing issues on the basis of the pleadings of the parties and fixing next date for recording evidence. I agree with the view of my learned brother, M. S. H. Qureshi, J. In 1979 CLC (Lah.) that possibility cannot be ruled out in certain cases so as to enable the parties to express themselves through their attorneys and advocates. Suppose one of the parties to such proceedings was already out of the country at the time of institution of the suit and unable to appear before the Court in the near future. Will the Court in such circumstances proceed against it ex parte in the presence of its counsel, who can plead and act on its behalf under the law. Respectfully following the dictum of law laid down in Muhammad Sadiq Hussain v. Mst. Khurshid Fatima 1978 SCMR, as referred to above, I am of the view that in the given circumstances, the Court will act according to the statement of the counsel made under the due instructions of a party at the pre-trial or after trial stage for reconciliation purposes.
13. It is true that the aforesaid provision, section 10(2)(3) of the Family Courts Act is mandatory and as such should be followed being a necessary provision. If however, in the circumstances as mentioned above, appearance of a party is not possible then the possibility of such party to express itself through its attorney or advocate cannot be ruled out.
' Take another instance. A party can he so seriously ill so as to be unable to appear in the Court personally, though fully represented through its counsel. Will the Court in that case proceed ex parte, since it has failed to appear personally in the Court as required by section 10(2) of the Act.
There is no doubt that for effecting compromise or reconciliation, presence of the parties is necessary so that genuine attempt, by affording them opportunity to meet each other, may be made and possibility may be explored whether reconciliation can be made. I am however, of the view that departure at certain stages can be made in the given circumstances of a case and such departure will not amount to failure on the part the Court to comply with the mandatory provision.
14. The case reported in PLD 1980 Karachi does not help the respondent, rather it goes against her.
After the husband in that case failed to file his written statement on the date fixed for that purpose and was proceeded against ex parte, the learned Judge, Family Court adjourned the proceedings for ex parte evidence of Respondent No,
3. No ex parte decree was passed in her favour as contemplated by the provision as contained in Order VIII, rule 10, C. P. C.
15. According to section 10 of the Family Courts Act, as soon as the written statement is filed the Family Court shall fix an early date for pretrial hearing of the case and on that date the Court shall examine the plaint, the written statement, if any, and the precise of evidence, any document filed by the parties and shall also, if it so deems fit hear the parties and their counsel. Further according to subsection (3), the Court shall ascertain the points at issue between the parties at the pre-trial stage and attempt to effect compromise or reconciliation between the parties, if this be possible.
' The learned counsel for respondent No, 2 has vehemently argued that since an order had been passed by the Court directing the petitioner to appear personally at the pre-trial stage, therefore, his presence being necessary ex parte decree could be passed against him in his absence. I am afraid, such step is not contemplated by the aforesaid provision of law. As held above, if the petitioner did not appear at the pre-trial stage, it meant that he was not interested in the reconciliation proceedings. According to the said provision, an opportunity was to be granted to the parties to come to some compromise or reconciliation and if a party does not avail of such an opportunity, it means that it does not want compromise or reconciliation and in that case finding to that effect should be given by the Judge, Family Court and thereafter further proceedings may be held under subsection (4) of section 10 of the Family Courts Act by framing issues and fixing the case for recording evidence. The view, therefore, taken by my learned brother, Muhammad Amin Butt, J. In Khalid Mahmood Syed v. Qazi Abbas Bokhari, Judge, Family Court, Lahore and another (1), that the provision as contained in section 10(2)(3) of the Family Courts Act is directory, does not hold good in the light of the above discussion and is dissented from. However, this is true that personal attendance of a party in the Family Court is not in dispensable to the extent as discussed above, but in the given circumstances of a case his or her presence may be dispensed with. It is clear that the aforesaid provision is mandatory and normally it should he followed in its true spirit, but any violation thereof would be an irregularity and would not invite a penalty as imposed in the present case.
16. The learned counsel for respondent No, 2 has argued that the order in question, even if erroneous, being within jurisdiction is not liable to be interfered with. I am afraid, this contention has no force in the given circumstances. As discussed above, the order is not erroneous, but illegal being contrary to the provision as contained in section 10(2)(3) of the Act. There E being no such provision in the Act enabling the Family Court to pass ex parte decree in the case of the failure of a party to appear at the pre-trial stage, the impugned order is not sustainable in law.
' The learned counsel has relied upon certain authorities to the effect that if an erroneous order has been passed by a competent Court, then no interference will be made in exercise of extraordinary jurisdiction under Art. 199 of the Constitution. There is no dispute with regard to the correctness of such principle. Such position, however, does not obtain in the present case. The impugned order being without jurisdiction, as discussed above, cannot be maintained.
17. The learned counsel for the petitioner has placed on the file affidavit, duly sworn in by Rana Javaid Majeed, Advocate of Jhang, who was conducting the case on behalf of the petitioner before the Family Court, to the effect that he advised the petitioner. In the light of the judgment reported in PLD 1979 Lahore 217, as referred to above, that his appearance before the Judge, Family Court at pre-trial stage was not necessary and since the advice was on account of that authority, therefore, the same, according to the affidavit, could not be considered to be mistaken.
' The view as expressed in the aforesaid report holding the provision as contained in section 10(2)
(3) of the Family Courts Act to be directory has been dissented from. {{FOOT NOTE}}
(1) PLD 1979 Lah. 217 {{FOOT NOTE}}
18. The learned counsel has further submitted that if given chance in the petitioner shall appear before the Judge, Family Court at the pre-trial stage. I am afraid, indulgence to this extent cannot be shown to the petitioner at this stage. He was asked to appear personally for about six times, but he did not care to comply with the order of the Court, be that for the mistaken advice of the learned counsel. There is also nothing on record to show that Rana Javaid Majid, Advocate of Jhang, raised any such plea before the Family Court that in the light of the judgment reported in PLD 1979 Lahore, presence of the petitioner was not necessary. As such, as already held above, his non-appearance at the pre-trial stage would be deemed to have proved his being disinterested in the reconciliation proceedings.
19. As a result of the above discussion, the impugned order being illegal and without jurisdiction is hereby set aside. The writ petition is accepted in the terms stated above, without any order as to costs. The case is remanded to the learned District Judge, Jhang for being entrusted to the Judge, Family Court, who will decide the same, in accordance with law and in the light of the observations made above, by proceeding further in compliance with the provision as contained in section 10(4) of the Family Courts Act.