ORDER MUHAMMAD KHALID MEHMOOD. KHAN, J.--The respondent No.1 on 18-1-2010 filed a suit for dissolution of marriage against the petitioner on the ground 'of Khula and also for payment of maintenance before the Family Court Johar Abad. The petitioner filed written statement, challenging the territorial jurisdiction of the learned Family Court. The petitioner on 17-4-2010 filed an application before the learned Family Court praying to frame an issue regarding the territorial jurisdiction of the Court and decide the said issue before the commencement of trial. The learned Family Court vide order dated 30-4-2010 dismissed the application. The petitioner assailed this order through the present writ petition.
2. Learned counsel for the petitioner submits that the learned Family Court was bound to decide the objection of territorial jurisdiction of the Court raised through an independent application. He submits that the learned trial Court was bound to decide the issue of jurisdiction first and separately from the other issues on merit.
3. Learned counsel for the respondent submits that in family suit the Civil Procedure Code is not applicable and as such it was not necessary for the learned Family Court to attend the objection, of the petitioner. He further submits that respondent can file a suit on the basis of temporary residence and the Court of temporary residence of the respondent has the jurisdiction to entertain and decide the family suit. He further submits that the respondent has filed written statement and raised this objection which will be dealt with by the learned Family Court in accordance with law during the trial.
4. It is a settled principle of law that the question of jurisdiction should be decided in the first instance. The learned Family Court has dismissed the application challenging the territorial jurisdiction of the court without recording the evidence and even framing, the issue. The learned Family Court has relied on a document issued by Lambardar without examining the credibility of the document. No doubt the respondent has raised the objection in his written statement and learned Family Court will frame the issues on the basis of objections raised by the petitioner but the learned Family Court instead of dismissing the application of the petitioner on the ground that it has been proved from the document that court has the jurisdiction. The impugned order is against law and facts of the case and as such cannot sustain in the eye of law.
5. In view of above the impugned order is set aside and the learned Family Court is directed to frame a preliminary issue for ascertaining its territorial jurisdiction and if the learned Family Court is of the opinion that this issue cannot be decided without recording the evidence, the learned Family Court will record the evidence and will allow full opportunity to both the parties to explain their case. As it is a family suit, learned Family Court is directed to decide the suit within 3 months from the date of receipt of this order.