1. SYED IFTIKHAR HUSSAIN SHAH, J.--- Through this constitutional petition, the petitioner has assailed the legality of order dated 20-7-2012 passed by the learned Additional District Judge, D.G. Khan whereby appeal preferred by respondent No.3 against order dated 21-4-2012 passed by the learned Judge Family Court D.G. Khan was accepted.
2. 2.Succinctly, the facts of the case are that respondent No.3 Mst. Rubina instituted a suit for the recovery of maintenance for herself and for her minor son namely Hassan Hameed and for the recovery of dower and dowry articles against the present petitioner with whom her marriage was solemnized five years back. According to the averments of the plaint, the petitioner failed to provide maintenance and he also did not pay prompt dower and also deprived her from the use of articles of dowry.
3. 3.The present petitioner/defendant contested the suit and out of divergent pleadings of the parties, learned Judge Family Court framed the following issues:--- "ISSUES No.1. Whether the plaintiffs are entitled to recover maintenance allowance as prayed for in plaint?
4. OPP No.2 Whether the plaintiff No.1 is entitled to recover dowry articles and dower as prayed for in plaint? OPP No.3 Whether the suit of the plaintiff is not maintainable in its present form as per preliminary objections Nos.1 to 4 and is liable to be dismissed? OPD No.4 Relief."
5. 4.Respondent No.3/plaintiff produced two witnesses in support of her claim. The right of respondent No.3 to produce documentary evidence was closed after providing nine opportunities to submit documentary evidence vide order dated 21-4-2012. Feeling aggrieved by the said order, she preferred an appeal before the learned Additional District Judge, Dera Ghazi Khan which was accepted vide impugned judgment dated 20-7-2012. Hence, this writ petition.
6. 5.Learned counsel for the petitioner has contended that order dated 21-4-2012 was interlocutory one, therefore, no appeal was competent against the said order but the learned Addl. District Judge accepted the appeal of respondent No.3 without jurisdiction, therefore, the impugned judgment being void, is liable to be set aside. Relies on cases "Muhammad Akram v. Mst. Raheela Aslam and 2 others (PLD 1999 Lahore 33)".
7. 6.On the other hand, learned counsel for respondent No.3 has contended that the appeal against an interlocutory order closing the right to produce documentary evidence of respondent No.3 was competent and the same has rightly been accepted. Further contended that no objection regarding the filing of appeal was raised before the learned Additional District Judge, therefore, the petitioner is estopped to challenge the legality of said order. Relies on "Nawab Khan and another v.
8. Waris Iqbal and 5 others (PLD 1976 Supreme Court 394)" and "Messrs Capital Farms, Islamabad v.
9. National Development Finance Corporation PLD 1996 Lahore 99)".
10. 7.I have heard the learned counsel for the parties and have perused the record.
11. 8.Section 14 of the West Pakistan Family Courts Act, 1964 deals with the appeals which reads as under:--- "(1)Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable:-- (a)to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge, or a person notified by Government to be of the rank and status of a District Judge or a Additional District Judge, and (b)to the District Court, in any other case.
12. (2)No appeal shall lie from a decree passed by a Family Court--- (a)for dissolution of marriage, except in the case of dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section (2) of the Dissolution of Muslim Marriages Act, 1939.
13. (b)for dower [or dowry] not exceeding rupees [thirty thousand]; (c)for maintenance of rupees [one thousand] or less per month.
14. (3)No appeal or revision shall be against an interim order passed by a Family Court.
15. (4)The appellate Court referred to in subsection (1) shall dispose of the appeal within a period of four months."
16. 9.Order dated 21-4-2012 passed by the learned Judge Family Court is definitely an interlocutory order whereby the right to produce the documentary evidence was closed and under section 14(3) of the West Pakistan Family Courts Act, 1964 no appeal or revision shall lie against an interim order passed by a Family Court. The appeal is a creation of statute and the right to appeal cannot be conferred by the consent of the parties and any defect in the Appellate Court's jurisdiction cannot be cured by consent or by waiver. It is primarily duty of the Courts and the other adjudicating forums to decide lis before them in accordance with law. The Courts and other forums are not relieved of this duty on account of an act or omission of a litigant or a lawyer. The jurisdiction of a Tribunal or a Court is always conferred by law and not by consent of the parties, express or implied.
17. The consent of a party can neither confer nor take away the jurisdiction. The case-law produced by the learned counsel for the respondents is not directly applicable to the facts and circumstances of the present case.
18. 10.The appeal against the impugned order was specifically barred under section 14(3) ibid, therefore, the learned Additional District Judge was not competent to hear and decide the same and even it was primary duty of the learned Additional District Judge to ascertain that whether the impugned order is appealable or not and then to decide the same even if no objection was raised by the opposite party. Learned Additional District Judge accepted the appeal of respondent No.3 without jurisdiction, therefore, the same is liable to be set aside.
19. In view of above, the writ petition is allowed, and the impugned judgment dated 20-7-2012 is set aside.