AMIN-UD-DIN KHAN, J. -- This writ petition has been filed against the order dated 4.2.2011 passed by Judge Family Court, Khairpur Tamewali, District Bahawalpur whereby the application for recall and review of order dated 2.7.2010 was dismissed.
2. Brief facts of the case are that respondent No. 2 Mst Zarina Nasir filed a suit for dower as well as maintenance allowance on 27.7.2007. During the pendency of the suit on 2.7.2010 learned counsel for the plaintiff respondent No. 2 made a statement that there is a formal defect in the suit as composite suit for dower and maintenance allowance cannot be filed without a suit for dissolution of marriage, therefore, he stated that a separate suit for maintenance allowance has been filed, therefore he does not press this suit for maintenance allowance and suit to the extent of recovery of maintenance allowance was dismissed being not pressed. The defendant petitioner filed a review application under Section 151, C.P.C. The reply was filed and vide order dated 4.2.2011 the learned Trial Court dismissed the said application.
3. Learned counsel for the petitioner while relying upon Rehana Khatun v. Rizwan Ullah (2011 YLR 2231) has stated that as the written statement filed in a suit for maintenance allowance is presumed under Section 9(1a) of West Pakistan Family Courts Act, 1964 to be a suit for restitution of conjugal rights. Therefore with the dismissal of suit for maintenance his written statement will also be presumed to have been dismissed with regard to the restitution of conjugal rights.
4. Learned counsel for the respondent has supported the impugned order.
5. I have heard the arguments of the learned counsel for the parties and have perused the entire record with their able assistance.
6. When confronted to the learned counsel that when respondent No. 2 has already filed a separate suit for maintenance allowance then what prejudice has been caused to the petitioner. Learned counsel for the petitioner states that in the case-law referred above without notice to the petitioner-defendant the Court was not competent to allow the withdrawal of the suit to the extent of maintenance allowance. I have noticed that the case-law referred by the learned counsel for the petitioner is not applicable to the facts and circumstances of the case in hand. Further when confronted that how under Section 151, C.P.C. Powers of review are available with the Family Court, learned counsel for the petitioner is unable to advance arguments on this point. Another application was moved under Order 7, Rule 11, C.P.C. For rejection of the plaint. When confronted to the learned counsel for the petitioner, how this application is maintainable in the existence of Section 17 of the West Pakistan Family Courts Act, 1964, learned counsel for the petitioner is unable to response this question satisfactorily. I hold that Section 151, C.P.C. As well as Order 7, Rule 11 Of the C.P.C. Are not applicable in the proceedings before Family Court, the orders of Judge Family Court are not exceptionable. Therefore, no case for interference by this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been made out, till the time a party does not show any jurisdictional defect or illegality in the impugned order. .