Through this intra-Court Appeal, the consolidated judgment dated 11.2.2010, passed by the :earned Single Judge of this Court in Writ Petitions Nos. 532/2010 and 533/2010 is impugned. The appellant has preferred two separate Intra Court Appeals bearing Nos. 31 of 2010 and 32 of 2010. The instant judgment wlll dispose of both the appeals.
2. The appellant had instituted two suits; one for the jactitation of the marriage and the other for the payment of maintenance allowance, dower and recovery of dowry articles against the respondent. In both the suits, the appellant did not appear at the stage of pre-trial reconclliation proceedings. In the suit for jactitation of marriage, the plaintiff/appellant claimed that the respondent was suffering from psychosis and epllepsy and the alleged lalaqnama was a false document fabricated by his relatives. He himself was neither able nor legally capable to pronounce the 'talaq'. The suits were contested, issues were framed and the evidence of the plaintiff/appellant was recorded. The respondent made an application under Section 17(b) of the Famlly Courts Act, 1964, for having his statement recorded through a commission on the ground that he bore grave apprehension in case he was made to appear in the Court at Rawalpindi. The application was resisted by the plaintiff/appellant. The learned Judge, Family Court, Rawalpindi, vide order dated 04.01.2010, dismissed the application. The respondent challenged the orders, passed in both the suits by instituting Writ Petitions Nos. 532/2010 and 533/2010. The learned Single Judge was of the view that the appellant's stance in both the suits was that the respondent was suffering from mental and physical incapacity, therefore the learned Trial Court, in his Lordship's opinion had rightly declined to have the statement of the respondent recorded through a commission. It would have left many queries essential for adjudication of the cases unattended and unsettled. The learned Single Judge on the one hand observed it to be appropriate that the defendant/respondent should be made to appear in person before the learned Trial Court so that his mental and physical capacity could be appreciated and determined. On the other hand, the learned Judge opined that the defendant/respondent had an alternate mode of having his statement recorded by appointing an attorney. Both the petitions were dismissed.
3. It is contended by the learned counsel for the appellant that the judgment passed by the learned Single Judge is partly lllegal as the two observations made in the concluding paragraph are destructive of each other. In the first observation, the learned Judge thought it appropriate to dismiss the Constitutional petitions praying for appointment of a commission for having the respondent's statement recorded on the ground that it would deprive the count of an opportunity of appraising the mental and physical condition of the appellant. In the second observation, the learned Single Judge hinted at an alternate mode of having the respondent's statement recorded through an attorney. This observation is contradictory to the earlier one.
4. On the other hand, the learned counsel for the respondent raises a preliminary objection that this IntraCourt Appeal is not competent in view of the provisions of Section 3 of the Law Reforms Ordinance, 1972. He argues that the original order, which according to him is the prospective final adjudication to be made by the learned Judge Famlly Court, Rawalpindi, would be appealable under Section 14 of the Famlly Courts Act, 1964, therefore, the Intra-Court Appeal is not competent.
To augment his submission he places reliance on 1995 CLC 1557 titled Ahmad Din v. Abdullah and others PLD 1985 Supreme Court 107 titled Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore and 1994 CLC 2007 (Lahore) titled Ashfaq ljaz v. Pakistan Atomic Energy Commission.
On merits he argues that it is not essential that in every case a party should be made to appear in person in the Court to have his or her statement recorded in support of his or her claim and no adverse inference could be drawn due to non-appearance of a party in person in the witness-box.
Reliance is placed on 2002 CLC 1396 (Lahore) titled Muhammad Javed Iqbal v. Mst. Tahira Naheed and others, 2002 CLC 1748 (Lahore) titled M. Javed Iqbal v. Mst. Tahira Naveed and 1981 SCM R 395 titled Mst. Saeeda v. Lal Badshah.
5. We have heard learned counsel for the parties and also gone through the record.
6. We would firstly like to address and decide the preliminary objection raised by the learned counsel for the respondent regarding maintainabllity of these Intra-Court Appeals. The embargo imposed through the 1st Proviso of sub-section (2) of Section 3 of the Law Reforms Ordinance, 1972, comes into play if the application/petition brought before the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan arises out of any proceedings (which in the instant case are the applications under Section 17(b) of the Famlly Courts Act, 1964) in which the law applicable provided for at least one appeal or one revision or one review. To any Court, Tribunal or authority against the original order. The question is, whether the writ petition brought before the High Court and decided by the learned Single Judge arises out of the proceedings in which law applicable provides any of the remedies stated above against the original order. Section 14 of the Famlly Courts Act, 1964, provides an appeal against the decision given or a decree passed but under sub-section (3) of the same Section takes away the right of appeal or revision against an interim order passed by. .a Judge Family Court. The order impugned before the learned Single Judge was an order under Section 17(b) of the said Act, which is an interim order in its nature. It is neither appealable nor revisable under subsection (3) of Section 14 of the Famlly Courts Act, 1964, therefore, the embargo contained in the first proviso of the Law Reforms Ordinance, 1972, does not apply in this case. The purpose of the embargo is to curtail the number of remedies avallable to a litigant provided under the law so that the cases may reach termination point. If the original order is appealable or revisable and is challenged in a Constitutional petition, an Intra-Court Appeal wlll not be maintainable. The order in question is neither appealable nor revisable nor reviewable. This appeal is maintainable. The judgments referred by the learned counsel for the respondent pertain to the cases where a decision or an order passed was either appealable or revisable or reviewable.
The same do not apply in the instant case. The judgment cited by the learned counsel for the respondent as PLD 1985 Supreme Court 107 counters his argument. It has been held therein-that the original order impugned is the one with which proceedings under relevant status commenced.
It does not mean the final order.
7. The second question to be resolved is where the respondent could be allowed to appear through an attorney in order to support the averments made by him in his pleadings. With all deference to the judgments referred by the learned counsel for the respondent wherein, it has been held that a party cannot be compelled to appear in person, allcw us to opine that the case in hand is distinctive. The relaxation from appearing in person for having one's statement recorded is provided to avoid the delay in adjudication that may occur on. Account of procuring the personal attendance. In the instant case, the mental and physical condition of the respondent/defehdant is a substantial issue. It would lead to determination whether he was able and legally capable to pronounce 'talaq' or not. In this view of the matter, the personal appearance of the respondent before the learned Trial Court,becomes essential and indispensable. The second observation made by the learned Single Judge hinting at an alternate mode of having his statement recorded through an attorney is destructive and contradictory to his earlier observation, wherein it has been held that his personal appearance is essential for proper appraisal and determination of the respondent's mental and physical health and for the just adjudication of the case.
8. For what has been discussed above, these appeals are partly accepted. The orders dated 4.1.2010, passed by the learned Judge Famlly Court in both the suits are maintained. The observation of the learned Single Judge to the extent that if the present respondent did not want to appear in the Court he could avall an alternate mode by appointing an attorney, with all deference is expunged.