This case has a chequered history. The petitioner claiming to be a son of the respondent, applied through his mother, Mst. Shamim Firdaus, for maintenance under section 488, Cr. P. C. Before the City Magistrate, Sialkot, on 4th September, 1964. The proceedings after remaining pending for about three years; were transferred to the Court of District Magistrate, Sialkot, where the respondent moved an application that in view of the provisions of West Pakistan Family Courts Act, 1964, the proceedings should be filed as these were no longer entertainable or adjudicatable by the District Magistrate. This plea was accepted and the District Magistrate on 9th December, 1967, directed the petitioner to seek his remedy through Family court. This controversy was taken first to the High Court and ,then for the Supreme Court and ultimately the Supreme Court held that the effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Court without in any diminishing or curtailing the right already possessed by a litigant with regard to the scheduled matters. It was further observed that looking at the provisions as a whole, it is clear that all that the Family Courts Act has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better remedies. It has thus in every sense of the term brought about only procedural changes and not affected any substantive right (Underlining" is mine) . . . . . . . . . It was, further held that the Act affected also pending proceedings and Magistrates have no longer any jurisdiction either to entertain, hear or adjudicate upon a matter relating to maintenance. (See Adnan Afzal v. Sher Afzal PLD 1969 SC 187It is pertinent to note the following observations made by the learned Judges of the Supreme Court in the aforesaid case :- "This matter has been pending for a very long time but we hope that the Family Court will now deal with it expeditiously."
Thereafter, the application filed under section 488, Cr. P. C. Before the Magistrate was ordered to be returned for presentation before the appropriate Court in compliance with the order of the Supreme Court. On 26-4-1969, the record of the case was received by the Judge Family Court- from the District Magistrate and the said application was ordered to be .Registered and respondent (Col. Sher Afzal) was ordered to be served through a notice for 24-5-1969. It is asserted that respondent was absent despite personal service and so he was proceeded ex parte and the case was fixed for 31-5-1969. On this date, the Presiding Officer was on leave and the case was adjourned to 2.6-1969, on which date the respondent was represented through a counsel. The petitioner was directed to file a fresh application and accordingly an application under section 488, Cr. P. C. Was filed on 7-6-1969. Since the respondent was absent, he was proceeded ex parte and the case was adjourned for 14-6-1969 for ex parte evidence: The respondent thereafter applied for setting aside of the ex parte proceedings and the same was accepted vide order dated 14-6-1969, observing that since fresh application under sec--tion 488, Cr. P. C: was filed on 7-6- 1969, ex parte proceedings against the respondent should not have been taken. Copies of the petition, schedule of witnesses, and list of documents were ordered to be given to Mr. Munawwar Husain, Advocate, who had appeared on behalf of the respondent on the said date., The respondent then on 30-6-1969 filed a reply to the application and a rejoinder was also filed on behalf of the petitioner. During the proceed--ings of the application, on one date i. e. 11-10-1969 neither respondent nor his counsel appeared with the result that the respondent was proceeded- ex parte and the evidence was recorded on the same date and ultimately on 14-10-1969, ex parte order allowing maintenance at the rate of Rs. 200 per mensem w. e. f. 21-3-1963 was passed by the learned Judge Family Court.
A mention may be made of an application under Soldiers Litigation Act, 1925, submitted by the petitioner for adjourning the proceedings, but it appears that not only the counsel for the respondent tendered appearance on his behalf on various dates but also the respondent hims6lf appeared on 29-9-1969 in Court and on all these dates the application was not pressed.The respondent then on IZ-11-1969 filed an application for setting aside the ex parte order of maintenance, but the same was also dismissed for non prosecution on 6-1-]971. Another application for restoration of the application dated 12-11-1969 was submitted and the same was accepted and theapplication for setting aside the ex parte order of maintenance was restored vide order dated 12-6-1971. Again, the application for setting aside the ex parte order was dismissed for non-prosecution on 4-1-1972. Another applica--tion for restoration was filed on 5-1- 1972 but the same was again dismissed for non-prosecution on 21-9-1976. Thereafter, for about four years no application for restoration was submitted.
2. Appropriately, at this stage reference to other litigation going on between Mst. Shamim Firdaus mother of the petitioner, the petitioner and. The respondent may be made. The respondent in his reply to the maintenance application had taken the position that Mst. Shamim Firdaus, mother of the petitioner, was neither his wife nor the petitioner was his son. The petitioner as well as his mother, therefore, filed a suit on 21-5-1964 against the respondent for a declaration that they were his son and wife respectively. This suit was decreed on 22-9-1969 after a protracted trial extending to , a period of five years. The matter was then taken up to the Supreme Court and the judgment and decree passed was upheld vide judgment of the- Supreme Court dated 2-9-1980. See Major Sher Afzal v. Shamim Pirdaus and another (1). The observations made by the learned Judges of the Supreme Court may be quoted for the purposes of the present petition and the same are as under :-- "Before parting with this case I may state that the defendant-appellant during arguments and particularly while closing his address again, prayed for a remand of the case for leading additional evidence and for recall and also for further cross-examination of some witnesses. This, it is obvious, is an attempt to prolong an already exceptionally prolonged litigation which started over sixteen years back and which the defendant wishes to drag on for the rest of the life of the parties or for a considerable part thereof. The effort seems to misuse the process of law for an ulterior motive. It is a well-contested case on the part of the defendant as will be evident from its bulky record and various types of points and pleas and evidence led from his side. There is no justification whatever to allow the re-opening of the case at this late stage."
A review petition filed thereafter by the respondent also failed along with a civil miscellaneous petition filed by the second wife of the respondent for being impleaded a party in the matter, by the Supreme Court on 3-6-1981 . (See Col. Sher Afzal v. Shamim Firdaus and another (2)). Again, the learned Judges, after quoting the above-quoted observations made at the time of dismissing the appeal filed by the respondent, further observed as under :- "And if we may now add; there is no justification to repeat the same prayer, this time through the applicant viz. The second wife of the defendant whom he has put forward with an ulterior motive to subject the respondents to an unwarranted harassment, and to keep them involved in litigation and in this way deprive them of the fruits of the decree which they obtained after the onerous litigation of sixteen years."
(1) PLD 1980 SC 228(2) P I, D 1981 SC 349 The respondent having thus failed in his all attempts to continue the litigation before the Supreme Court, thought of another plan to prolong the litigation and to avoid his liability to pay the maintenance allowance allowed since 1969. He now ,approached the Senior Civil Judge/Judge Family Court, Sialkot, with three applications, as in the meanwhile on the application of the petitioner, the property of the respondent had been. attached on a precept sent to Senior Civil Judge, Rawalpindi, where the property of the respondent was located. The respondent, as mentioned above, submitted three applica--tions as follows;-
(i) application dated 11-2-1981 seeking restoration of application dated 5-1-1972 submitted for restoration of the application seeking setting aside of ex parte order of maintenance;
(ii) application dated 30-7-1981 seeking injunction against execution of ex parte order of maintenance; and
(iii) objection petition dated 30-7-1981 against issuance of order of maintenance.
The learned Senior Civil Judge/Judge Family Court vide his order dated 13-9-1981, stayed the execution proceedings subject to furnishing of the security in respect of the decretal amount. An appeal was taken to the District Judge. Sialkot, by the petitioner but the same was dismissed vide judgment dated 7-12-1981 as not maintainable observing that grant or refusal to grant stay pending the main matter does not amount to "decision" against which an appeal is available under section 14 of the Family Courts Act. Hence this constitution petition.
3. Before proceeding to deal with the respective submissions of the parties, it may be noted that no written statement was filed on behalf of the' respondent though one adjournment was specifically given to enable the learned. Counsel for the respondent to submit a written statement. Learned counsel for the respondent, however, left a written statement with the Reader at the time when the learned counsel for the petitioner was about to conclude his submissions. On the objection raised by the learned counsel for the petitioner the written statement was returned to the learned counsel for the respondent. It was made clear to him that in view of the objection being raised, he may seek permission to file the written statement by submitting a proper application, but no such application was submitted and in these circumstances in the absence of the written statement of the respondent, the facts as asserted in the writ petition are to be taken to have been admitted.
4. I may add that even during arguments, learned counsel for the ,respondent neither challenged any of the facts asserted in the petition nor chose to answer the legal arguments addressed by the learned counsel for the petitioner. The only argument that he addressed was that the order impugned in the constitution petition is an interlocutory order and that such orders are not amenable to interference in exercise of constitutional jurisdiction. Reliance was placed on Abdul Rehman Pajwa v. Sultan and 9 others (1), Mst. Hajiran Bfbi v. Abdul Khaliq (2); Mullah Ahmed v.
Assistant Commissioner (3) and Abdul Ghani v. Zahida Begun (4). In all these cases, the principle laid down is that High Court while interfering with orders or judgments of final tribunals or Courts has only to see whether Tribunal or Court acted without jurisdiction or in violation of relevant statute or law as laid down by the superior Courts, and that a Court or Tribunal set up under ordinary law having jurisdiction to decide a particular matter has jurisdiction to decide it rightly or wrongly: The foresaid dictum laid down by the learned Judges of the Supreme Court was followed in the other cases mentioned above. Following respectfully the above dictum of the Supreme Court I propose to examine the question whether the learned Judge Family Court could legally assume jurisdiction on the basis of the three applications submitted by the respondent and whether the impugn--ed order was passed with lawful authority. Taking firstly, the order passed by the District Judgein appeal, it will be noted that the appeal was held to be not maintainable on basis of the view taken in S. Azharul Hassan Naqvi v. Mst Hamida Bibi 1979 C .L C .754Undoubtedly, interlocutory orders do not amount to a `decision' and against such an order appeal under section 14 of the Family Courts Act was not available. The appeal was, therefore, rightly dismissed as not maintainable. It will, therefore, follow that there being no remedy available under law against the order passed by the Judge Family Court, the constitutional petition will be maintainable provided it could be established that the impugned order was otherwise without jurisdiction and illegal.
(1) PLD 1981 SC 522 (2) PLD 1981 Lab. 761
(3) PLD 1981 Quetta 15(4) PLD 1982 Lab. 401 Now for appreciating the legal position as regards impugned order dated 13-9-1981 of Judge Family Court, it will be recapitulated that the application for restoration dated 11-12-1981 was submitted seeking restoration of the application dismissed for non-prosecution on 21-9-1976 i. e.
With a delay of 4 years and 5 months. The other two applications, viz. The temporary injunction application and the objection petition to the issuance of the order of maintenance were submitted on the basis that the application for restora--tion is pending. So the question arises whether application of restoration made after about four and a half years of the dismissal of the application for restoration and after 12 years of the order dated 14-10-1969 granting maintenance could be entertained ? The answer must be returned in the negative. My reasons, for so holding, are that though the Judge Family Court) has the exclusive power to entertain, hear and adjudicate upon an application under section 488, Cr. P. C. By virtue of the Notification dated 5-4-1966 issued under section,
20. Of the West Pakistan Family Courts Act, 1964, but the Judge Family court passes the order in exercise of the power vesting under section 488, Cr. P. C. In a Magistrate First Class. The nature of proceedings to be held under section 488, Cr. P. C. May be considered at this juncture. For this purpose it is necessary first of all to consider what the Legislature intended to be the scope and object of Chapter 36, which is entitled "Of the Maintenance of Wives and Children". Sir James Fitzstephen describes this chapter as "a mode of preventing vagrancy, or at least of preventing its consequences". In re : Gulabdas Bhaidas 1 L R .16 Bom. 269This object was sought to be achieved by the Legislature by providing a statutory right independent of a right which a person may have under his personal law or under a contract. Reference may be made to the reported cases of
(i) Ranchhoddas Narottandas v. Emperor AIR 1949 Bom. 36.
(ii) Shamsher Khan v. SM. Siddlqunnisa and others AIR 1953 All. 720.
(iii) Ramji Malviya v. Sint. Munni Devi A I K 1959 All. 767. wherein it was observed that right given by section 488, Cr. P. C. Is a statutory right which is independent of the personal law of the -parties and is not affected or governed by it. This right so conferred was also made enforcible through coercive power of State by making necessary provisions for enforce--ment of the right. To my mind, a statutory right of quasi-civil nature was made enforcible through coercive machinery of the Criminal Law in order to put short the usual delays of Civil Procedure. This intent of law cannot be defeated merely because instead of the Magistrate, the powers vesting with the Magistrate are now to be exercised by Judge Family Court.
The application under section 488, Cr. P. C. As well as all other matters pertaining thereto are to be determined accordance with the provisions of section 488, Cr. P. C. Itself despite the fact that now in view of section 5 read with section 20 of the Family Courts Act read with Notification dated 5-4- 1966 issued thereunder, the Judge Family Court is to entertain and adjudicate the application.
Reference may be invited at this stage to subsection (6) of sec--tion 488, Cr. P. C. Which reads as under :- "All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases Provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any orders so made may be set aside for good cause shown on application made within three months from the date thereof."
A perusal of the proviso makes it clear that an ex parte order may be set aside for good cause shown on application made within three. Months from the date thereof. Thus, the Legislature has itself provided the period within which an application for setting aside an ex parte order is to be made. The application made after about twelve years of the ex parte order of maintenance was thus liable to be rejected summarily instead of taking cognizance of the same or assuming jurisdiction on the basis of such an application. The learned Judge Family Court before assuming jurisdiction paid no thought whatsoever to this aspect of the matter. He was also oblivious of the fact that to -the proceedings before him as -a Judge Family Court provisions of Code of Civil Procedure were also not applicable. The argument that the proceedings before the Judge Family Court are in part materia with suits as these are civil proceedings and, as such, restoration application was entertainable may be attended to at this stage. Assuming, without conceding that the proceedings on an application filed under section 488, Cr. P. C. Are of civil nature and that the provisions of Order 1X, rule 13, C. P. C. Are applicable even then according to the view taken in Din Muhammad v. Abdul Aziz (1) the period for moving this application would be thirty days as prescribed by Article 164 of the Limitation Act, of if the view taken in Ahmad Ali v. Registrar, Cooperative Societies'(2) is followed, then the second application under the provisions of Order IX read with section 151, C. P. C. Could be made for restoration of previously dismissed application under the same provision of law, within a period of three years prescribed under Article 181 of the Limitation Act. It will thus be seen that on no hypothesis these applications could be entertained and proceedings held thereon when the same were filed after more than four years of the dismissal of the application and after about 12 years of the order of maintenance. I may add that the view taken in either of the above referred two cases would not be applicable to the instant case as section 483, Cr. P. C. In its subsection (6) has itself provided three months' period within which an application for setting aside an ex parte order can be made. The specific provision made by the law has to prevail and the intention of the law cannot be defeated by raising a plea as to the nature of the proceedings.
(1) PLD 1967 Lah. 657(2) PLD 1971 Kar. 182
5. I have noted with concern that the learned Judge Family Court who is of the standing of Senior Civil Judge assumed jurisdiction in the matter without application of judicial mind and without even going -through the judgments of the Supreme Court passed in respect of the matter in contro--versy between the parties. He also failed to notice the observations repeatedly made by the Supreme Court that the respondent was continuing the litigation in order to deprive the petitioner of the fruits of the decree obtained years ago. Learned Judge Family Court assumed jurisdiction observing that without showing the fate of the application originally filed, the then Judge Family Court invited another application from respondent ; that the fresh application was invited and before institution of the same the respondent bad already been proceeded ex parte and that the application to adjourn the case under Soldiers Litigation Act was moved by the respondent as he was committed in war operations in the year 1971 but that application was not disposed of and without passing any order on this application, ex parte decree was passed.
Learned Judge Family Court while making this last quoted observation, forgot that the ex parte order of maintenance was passed on 14-10-1969 much before the time that the respondent was allegedly committed in the war operations in the year 1971. Moreover, this application which may have been submitted under Soldiers Litigation Act in 1971 must have been moved in the proceedings .For restoration application but the said application was itself dismissed for non- prosecution.
6. Regarding the objection as to the filing of fresh application, it will be seen that the same is of no consequence for the purposes of seeking restoration. This plea related to merits and admittedly the order of mainte--nance was never challenged on merits before any higher Court. As regards the objection that fresh application was invited and received when the respondent had already been proceeded ex parte, it will be noted that the respondent was proceeded ex parte on 24-5- 1969, the fresh application under section 488, Cr. P. C. Was filed on 7-6-1969 and thereafter on an application of the respondent, ex parte proceedings were set aside vide order 14-6-1969 and the respondent was represented on various dates by his counsel; and he himself appeared on 29-9- 1969 and a written statement was also filed on his behalf and then on account of failure to appear, the respondent was again ordered to be proceeded ex parte. Thus, none of the grounds on the basis of which the learned Judge Family Court observed that a prima facie case had been made out, was available. The respondent by submitting these three applications was manifestly grossly abusing the process of the Court and it is unfortunate that the learned Senior Civil Judge/Judge Family Court, Sialkot, failed to notice this and to curb abuse of process of law. On the contrary the learned Judge acting illegally provided a helping hand by issuing the process in the shape of temporary injunction. It is lamentable that a senior member of the subordinate judiciary was instrumental in depriving the petitioner the fruits of the order passed in his favour as early as in the year 1969. The appli--cations made in the year 1981, after losing from all sides up to the level of the Supreme Court were mala fide and amounted to sheer abuse of law and process of court. The learned Judge Family Court, as such, assumed jurisdiction which was not otherwise available. I have, therefore, no hesitation in declaring that the jurisdiction assumed and the order dated 13-9- 1981 C passed by the learned Senior Civil Judge/Judge Family Court, Sialkot, was without lawful authority and hence. Of no legal effect. The petitioner shall also have costs of this petition.