' M. TABASSUM AFTAB ALVI, J.---The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 whereby, following relief is solicited by the petitioner:- "it is therefore, very humbly prayed that by accepting this petition, impugned order dated 15-5- 2012 (Annexure "C/2") may very kindly be set aside and petitioner may be arrayed as party in the line of defendant. Any other relief which the petitioner be deemed entitled may kindly be granted in the interest of justice."
2. Precise facts giving rise to the instant writ petition are that Mst Tahira-respondent, filed a suit for dissolution of marriage against real brother of the 'petitioner, namely Mohammad Jamil Khan, before Judge Family Court, Dhirkot, on 6-6-2011. It is stated that in paragraph 2 of the above mentioned suit, Mst. Tahira-respondent levelled serious allegations against the petitioner; however, he was not impleaded party in the line of defendants. It is averred that in the given eventuality, the petitioner was constrained to move an application before the trial Court for arraying him as party, which was opposed by the respondent-plaintiff through detailed objections dated 14-4-2012. It is further stated that although the matter was sub judice before Judge Family Court, Dhirkot.
However, the Additional District Judge-respondent, dismissed the above application, vide impugned order dated 15-5-2012. Feeling aggrieved from the above order, the petitioner has filed the instant writ petition before this Court on 17-5-2012.
3. The writ petition has been resisted by the private respondent through detailed comments dated 11-6-2012, which on request of the learned counsel for the private respondent, were treated as written statement, vide order dated 1-10-2012. It is claimed that the petitioner is not an aggrieved person, therefore, having no locus standi to file the writ petition; It is further stated that writ petition has been filed by the petitioner for mala fide intention to prolong the proceedings of the Family Court in collusion with his brother Mohammad Jamil Khan, against whom, suit for dissolution of marriage was filed by the answering respondent. It is further averred that the petitioner is neither necessary party, in the suit for dissolution of marriage filed by the private respondent against her husband, nor proper party in the said suit. It is claimed that no illegality was committed by the trial Court, while disallowing baseless application of the petitioner for arraying as party, hence, prayed for dismissal of writ petition.
4. The learned counsel for the petitioner, Raja Sajjad Ahmed Khan, Advocate, vehemently argued that as Mst. Tahira respondent levelled serious allegations against the petitioner in para 2 of her suit for dissolution of marriage, therefore, the petitioner was necessary party in the above mentioned case so that frivolous allegations be repudiated. The learned counsel pressed into service that the impugned order dated 15-5-2012 was passed by the Additional District Judge, Dhirkot, although, the matter was pending before Judge Family Court, Dhirkot, therefore, the impugned order being coram non judice, be quashed as such.
5. The learned counsel for the private respondent, Mr. Abdul Rasheed Abbasi, Advocate, while controverting the arguments of the learned counsel for the petitioner submitted that as suit was filed by the private respondent against her husband Mohammad Jamil Khan, for dissolution of marriage, hence, the petitioner was not necessary party in the said case. The learned counsel further submitted that admittedly the learned Additional District Judge, Dhirkot, was also enjoying powers of Judge Family Court, Dhirkot, therefore, the impugned order, dated 15-5-2012 cannot be termed as void abs initio. The learned counsel strenuously argued that name of Judge Family Court was not written due to inadvertence, which prima facie looked merely a clerical mistake. The learned counsel emphasized that as suit was filed by his client against brother of the petitioner; however, the application for arraying party was moved for mala tide intention merely to prolong the litigation and harass the contesting respondent. The learned counsel in support of his contentions referred to and relied upon following case-law:--
(i) Pio Gul v. The State (PLD 1960 SC 310); and
(ii) Muhammad Ramzan v. Mst. Khalida Perveen (PLD 1971 Lah. 813) .
6. After hearing the learned counsel for the parties at great length, I have perused the contents of writ petition and examined the appended documents.
7. Admittedly, Mst. Tahira-respondent filed a suit for dissolution of marriage against Mohammad Jamil Khan, the real brother of the petitioner, before Judge Family Court, Dhirkot, on 6-6-2011. The above mentioned suit was filed by the said respondent, inter alia, on the B grounds of cruelty, mat- treatment, non-payment of maintenance and lurking house-trespass by night at 1-30 a.m. With intent to commit unnatural act on the part of the petitioner. It was alleged by Mst. Tahir respondent in paragraph 2 of the above suit that she was sleeping in the given room situated at top floor of the joint house, where the petitioner being real brother of her husband, was also living. At about 1-30 a.m., while drunk, he knocked the door of the respondent's room. However, she declined to open door, who by lurking trespassed into room, hence, on her crying mother-in-law of Mst. Tahira- respondent and wife of brother of her husband reached there, who caught the petitioner, hence, and she succeeded to save her sanctity. The petitioner, on the basis of the above mentioned allegations levelled against him, moved an application for impleadment as defendant, which was rejected by the trial Court. On the basis of the above allegations no relief could be granted under law by the Family Court to the petitioner. As observed earlier, the suit was filed by Mst. Tahira respondent, against her husband, namely Mohammad Jamil Khan, for dissolution of marriage, therefore, in the said suit the petitioner was neither necessary nor proper party and on the above point findings given by the Court below are strictly in accordance with law, hence, I approved the same.
8. The learned counsel for the petitioner, however, attacked the impugned order dated 15-5-2012, yet on another ground that it was passed by the Additional District Judge, Dhirkot, although, the matter was pending before the Judge Family Court, Dhirkot, therefore, by declaring it as coram non judice the same may be quashed. The learned counsel for the petitioner, on Court query frankly conceded that the learned Additional District Judge,. Dhirkot, was also having exclusive jurisdiction of Family Court. The suit was admittedly tried by the Judge Family Court. According to my considered view as the learned Additional District Judge, was also enjoying powers of Judge Family Court, Dhirkot, therefore, if inadvertently or otherwise the name of Judge Family Court could not be written in the impugned order, it cannot be deemed as corarn non judice for simple reason that the same Court was constituted as Family Court, having exclusive jurisdiction to entertain, hear, adjudicate and decide family cases. In that view of the matter the solitary mis-description where the Court described itself as Additional District Judge would be without effect upon the legality of the proceedings. The identical point came under consideration before the apex Court of Pakistan in case titled Piao Gul v. The State (PLD 1960 SC 307. At page 309 of the report, it was held by their lordships as under:-- "Postulating that the trial of offences under section 8 of the North-West Frontier Province Corps Law, 1941, could only be competently held before a Court of Session, and the Court of Session for the Khyber Agency is the Court of the Political Agent, it must follow that the trial of the present appellant was conducted before Mr. Faridullah Shah in his capacity as a Court of Session under the Criminal Procedure Code, 1898 as applied to the Khyber Agency. There was no commitment. The trial was conducted by the warrant procedure. In that view of the matter, the solitary misdescription in the charge, i,e, where the Court described himself as District Magistrate would be a misdescription which was demonstrably incorrect, falling within the maxim falsa demonstration non nocat. It would therefore be without effect upon the validity of the proceedings provided that the person conducting those proceedings possessed in himself the capacity to do so. Mr. Faridullah Shah as Political Agent possessed the capacity of a Court of Session to try the charges against Piao Gul, and to impose a sentence of 14 years' imprisonment".
The same view was reiterated in case titled Muhammad Ramzan v. Mst. Khalida Perveen (PLD 1971 Lah. 813). At page 819 of the report, it was held as under:- "In this connection a question would also arise as to whether as civil Court, which has entertained a suit relating to matter specified in the schedule to the Act, can proceed on to hear and decide it, as a pending case, even after the said Court is constituted a Family Court under section 3 of the Act by virtue of rule 3 of the Rules framed under section 26 thereof. This question came under consideration in Alif Din v. Shaukat Ali PLD 1969 Pesh.
62. In that case, while considering whether the provisions of the Family Courts Act, 1964 had retrospective effect and were applicable to pending cases, the provisions of section 5 were also considered, and it was observed by the learned Court as follows:- "Apart from stress on the exclusiveness of the jurisdiction, the three stages of the proceedings are dealt with separately i,e,--
(i) entertaining a matter;
(ii) hearing a matter; and
(iii) adjudicating a matter.
(1) PLD 1969 SC 187 (2) PLD 1969 Pesh.62 "This provides sufficient scope for the proposition that if a matter has been entertained in another forum, on the coming into force of the Act if that matter has gone to the exclusive jurisdiction of a forum created by the Act, it shall be heard and adjudicated by the new forum."
1 am in respectful agreement with the above mentioned observation and am of the view that as the suit filed by Mst. Khalida Perveen respondent had already been entertained by Malik Mushtaq Ahmed Senior Civil Judge, Sheikhupura and since the same learned Judge was constituted a Family Court - under the Act, having exclusive jurisdiction not only to entertain the suit in question, but also to hear and decide it, he could continue to hear and adjudicate upon the same in that capacity i,e, as a judge, Family Court.
By respectfully following dictum of the precedent cases, supra, I hold that as the learned Additional District Judge, was also having exclusive jurisdiction to hear and decide the suit filed by Mst. Tahira respondent for dissolution of marriage as Judge Family Court, therefore, the impugned order is not coram non judice.
9. The crux of the above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed with no order as to costs.