JUDGMENT KH. IMTIAZ AHMAD, J.---This Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 impugns the order dated 15-4-2010 passed by the learned Judge Family Court, Multan whereby he struck of the affidavits filed by the P.Ws. Namely Muhammad Afzal and Muhammad Shahzad from the file.
2. The relevant facts for the disposal of this writ petition are that Mst Sughran Afzal petitioner- plaintiff filed a suit for maintenance and for recovery of dower amount. Issues were framed by the learned Judge Family Court, Multan on 13-2-2010 and thereafter the case was adjourned for evidence of the petitioner-plaintiff. Three P.Ws. Namely Mst Sughran Afzal, Muhammad Afzal and Muhammad Shahzad filed their affidavits as evidence. It was on 15-4-2010 that cross-examination of P.W.1. Was completed but thereafter learned counsel for the petitioner-plaintiff on the basis of some urgency sought adjournment and did not produce the witnesses. The adjournment was opposed by the other side and other counsel undertook that he would complete the cross- examination within 15 minutes and that too before the expiry of court hours. The court directed the learned counsel for the petitioner-plaintiff to produce the witnesses for cross-examination but he refused and upon this the learned Judge Family Court, Multan passed the impugned order which is reproduced as under:-- "Cross-examination of P. W.1 has been completed. Learned counsel for the plaintiff has contended that he has urgent piece of work, so he cannot produce other witnesses for cross-examination.
Learned counsel for the defendant has strongly objected that due to adjournment for further cross-examination, his cross-examination would be disclosed. He has further contended that he would complete cross-examination in the next 15 minutes before expiry of court's hours. Upon this, learned counsel for the plaintiff was directed to produce his witnesses for cross-examination till expiry of court's hours but he has refused. The contention of learned counsel for the defendant is genuine that in case of adjournment his cross-examination would be disclosed. On the other hand learned counsel for the plaintiff without any plausible reason has refused to be present in the court and to produce his witnesses for cross- examination. The court's hours are yet to be expired. There is no justification for an other adjournment. In this way, the affidavits submitted by the witnesses Muhammad Afzal and Muhammad Shahzad are hereby struck of from the file. The right of evidence of the plaintiff is also struck of. Now to come up for documentary evidence of the plaintiff on 12-5-2010."
3. Learned counsel for the petitioner-plaintiff contends that he was to go to bring his children, though, the witnesses were present and so the learned Judge Family Court, Multan committed illegality by closing the oral evidence.
4. On the other hand, learned counsel for the respondent contended that this was an interlocutory order and writ petition was not maintainable. He placed reliance upon "Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S & GAD, Karachi and another" (1996 SCM R 1165), "Hashim Khalil Khan v. With Civil and Family Judge and Judicial Magistrate, Karachi South and another" (2009 CLC 440 Karachi), "Saqib Mazhar v. Judge Family. Court, Wazirabad and another"
(2008 CLC 607 Lahore), and "Munir Alam through Special Power of Attorney v. Civil Judge/ Family Court, Lahore and 2 others" (2009 CLC 442 Lahore). He further contends that in spite of order of the court the counsel did not produce the evidence, so, the learned Judge Family Court had no option but to struck of the affidavits filed by the said witnesses since they did not appear for cross- examination.
5. Arguments heard. Record perused.
6. As far as the maintainability of present writ petition is concerned, in a case reported in 1996 SCM R 1165 noted supra, it was held by the august Supreme Court of Pakistan as under:-- "Statute excluding a right of appeal from the interim order could not be bypassed by bringing under attack such interim orders in Constitutional jurisdiction---Party affected had to wait till it matured into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders."
Similarly, in a case reported in 2008 CLC 607 Lahore, noted supra, the family suit was pending in which the petition was moved by the defendant challenging the territorial jurisdiction of the said court which was dismissed by the learned Judge Family Court which order was challenged before the Lahore High Court, Lahore. In this case also it was observed that the writ was not maintainable and reliance was placed upon above mentioned dictum laid down by the august Supreme Court of Pakistan.
7. Similarly, in a case reported as 2009 CLC 440 Karachi, noted above the principle as laid down by the august Supreme Court was followed. In a case reported in 2009 CLC 442 (Lahore), the interim maintenance fixed by the Family Court was challenged in a writ petition and it was observed that writ petition was not maintainable against the interlocutory order.
8. In the present case so far the lis is pending before the court and so far it has not been decided by the Family Court, so, on the basis of above-said case law, it can safely be held that the impugned order is not challengeable in the writ jurisdiction, which is interlocutory in nature. Even otherwise, the perusal of impugned order clearly shows that the counsel for the petitioner-plaintiff was positively directed by the court to produce the witnesses but he refused to do so and in this way no illegality is found in the order of learned Judge Family Court, Multan. Hence this writ petition has no force and the same stands dismissed.