' AYESHA A. MALIK, J.--- This writ petition impugns the orders dated 22-3-2012 and 5-4-2012 passed by the learned Judge Family Court, Ferozewala, District Sheikhupura.
2. Facts of the case are that a suit for dissolution of marriage, recovery of maintenance and dowry articles was filed by the respondents Nos.2 and 3 in which notices were issued to the petitioner. As per the order sheet, on 9-2-2012, 9-3-2012, 19-3-2012 and finally on 22-3-2012, the petitioner was required to file his written statement. Since he did not file the written statement, his right was struck off. Thereafter, by virtue of order dated 22-3-2012 the matter proceeded and evidence of the respondents Nos.2 and 3 was recorded. Vide order dated 5-4-2012, the case was fixed for final arguments.
3. It is the case of the petitioner that on account of his not filing the written statement, the learned Judge Family Court could not deny the petitioner the right to cross-examine the witnesses of the respondents. In this regard, he places reliance on a case titled "Muhammad Ramzan v. Fazal Wahid and 5 others" (2004 YLR 1050) wherein it was held that a date of filing of written statement is not a date of hearing, therefore, the suit could not be decreed ex Parte for non-appearance on the date when only written statement was to be filed. Learned counsel for the petitioner argued that the matter should have proceeded in evidence as the petitioner has a right to cross-examine the witnesses of the respondents. Learned counsel for the petitioner also argued that the marriage of the petitioner with the respondent NO.2 has been dissolved and now the only issue pending is recovery of maintenance and dowry articles. In this regard, he requests that the petitioner be allowed to file his written statement and thereafter, lead evidence and cross-examine the witnesses of the respondents.
4. Conversely, learned counsel for the respondents submits that petitioner has deliberately delayed the matter; no written statement was filed despite repeated orders to file the same. As such no purpose will be served even if he is allowed to file the written statement as he is only interested in delaying the matter.
5. Heard learned counsel for the parties and reviewed the record available on the file.
6. A review of the impugned orders shows that on account of non-filing of the written statement, the learned Judge Family Court struck off the petitioner's right to file his written statement on 23-2- 2012. Then after recording the evidence of the respondents by virtue of order dated 5-4-2012 the case was fixed for final arguments. This is contrary to the provision of the Family Courts 'Act, 1964.
Section 9 of the 1964 Act provides for the filing of written statement. Section 9(5) provides that if the defendant has notice of the suit and he fails to appear on the date fixed by the Family Court, the Family Court may proceed ex parte against the defendant. There is no provision for striking off the right to file a written statement. The statutory right to strike off the defence of the defendant is only available under section .17-A of the 1964 Act, which is for interim maintenance. This procedure to strike off the defence if no written statement is filed is followed by the Family Courts under the general law. It was observed in the case titled "Faiz-ul-Hassan v. Mst. Jan Sultan and 2 others" (2001 SCM R 1323) that:- "He (the defendant) participated in the proceedings but even then he did not file a written statement as directed by the learned Appellate Court and the learned Trial Court. The learned Judge Family Court was, therefore, constrained to strike off the defence of the petitioner and pass the ex parte decree for the recovery of Rs,1,00,000."
' It was also observed in the case titled "Abdul Rasheed v. Judge Family Court, Mian Channu and another" (2010 CLC 797) that:- "Most important aspect of the case is that if the interpretation offered by the learned counsel for the petitioner that Family Court has no authority to close right of written statement of the defendant is taken as correct, it would render the Family Courts Act, 1964 practically unworkable placing the Family Court at the mercy of defendant. The defendant may never file written statement and in that eventuality no case would be decided. Survey of the case-law, however, reveals that the Court in such circumstances cannot and should not sit like a distant spectator to witness a legal battle, being fought before it by two adversaries. It should and must, when the circumstances so demand, exercise its own powers to prevent the course of justice being deflected from its true path. In the family disputes, this is all the more necessary and may be this was the reason for enacting a special statute conferring exclusive jurisdiction on the. Family Courts to decide these special family disputes."
7. Section 11 of the Act provides for the recording of evidence where both the parties are to produce their witnesses for examination in Court. Section 11(3) provides for the right to cross-examine. A reading of both the sections leads to the conclusion that the first step for the defendant is to file a written statement. If he fails to file his written statement in accordance with the Court's order, the Court may strike off his defence. The case will then proceed in evidence and in terms of section 11 of the Act, the plaintiff should lead evidence. At the time of recording of evidence, the defendant, who has not filed his written statement, has a right to cross-examine the plaintiff's witnesses. This is a valuable right and prescribed in section 11(3) of the 1964 Act. In the instant case, the petitioner appeared in the suit but failed to file his written statement. The Court could strike off his right to file a written statement but could not close his right to cross-examine the witnesses of the respondents. The right to cross-examine witnesses is a significant right. A denial of this right would render the procedure adopted by the Family Court as unfair and against the right to a fair trial. It was held in a case titled "Manzoor Elahi v. Zulaikhan. Bibi and another" (PLD 2009 Islamabad 4) that: "The learned Family Court has not straightaway decreed the suit but after striking off defence of the petitioner, adjourned the case for cross-examination on 7-2-2008 and 25-2-2008 and in this view of the matter, the learned Family Court has not committed any illegality or irregularity in the proceedings, rather has acted strictly expeditious settlement and disposal of the dispute relating to the family affairs."
' Therefore, in the light of the aforesaid orders dated 22-3-2012 and 5-4-2012 being contrary to the law are set aside.
8. On the petitioner's request for being allowed to file written statement and to lead evidence, with the consent of the counsel for the respondents, this matter is remanded to the learned Judge Family Court for a decision on the maintenance allowance and dowry articles, after affording the petitioner one opportunity to file his written statement and thereafter, affording him a reasonable opportunity to produce his own witnesses and cross-examine the respondents witnesses.
9. Disposed of accordingly.