The first respondent, Mst. Safia Bibi, hereinafter referred to as the respondent, filed a suit against the petitioner, Muhammad Aslam, for dis--solution of her marriage, before a Family Court. The suit was resisted by the petitioner inter alia on the ground that the said Family Court had no jurisdiction to hear the suit. This plea of the petitioner had found favour with the Family Court. As a result, the plaint was returned to the respon--dent, under rule 5 of the West Pakistan Family Courts Rules, 1965. The respondent then presented a fresh plaint before another Family Court. In the suit thus filed by her. An ex paste decree was passed against the petitioner. That decree has been challenged by him by means of the Constitutions, petition in hand.
2. Learned counsel for the petitioner contended that the suit in which the decree was granted was not competent inasmuch as the plaint of that suit was not the same which had been returned by the Family Court before which the suit was initially filed by the respondent and, therefore, the said decree was of no legal effect. In this connection, he placed reliance on Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others (PLD 1970 Kar. 30).
3. In the case cited by the learned counsel it was observed by a learned.' Single Judge of the erstwhile Karachi and Baluchistan High Court that a fresh suit would be barred "as long as the plaint ordered to be returned for presentation has not been disposed of by a final order of the proper Court." This was held in a suit filed before a civil Court under the Code of Civil Procedure and not before a Family Court under the provisions of the West Pakistan Family Courts Act, 1964. The view expressed in the case of Mst. Hawabai and 6 others was founded on the provisions of section 9 read with orders VII and IX of the Code of Civil Procedure. Even if it is assumed that the relevant provisions of Order VII have been extended to the Family Courts by including rule 5 in the West Pakistan Family Courts Rules, the provisions of section 9 and Order IX of the Code of Civil Procedure have not been made applicable to the Family Courts in any manner. Instead, it has been clearly enacted in sectionl7 of the West Pakistan Family Courts Act, that the provisions of the Code of Civil Procedure except sections 10 and 11, shall not apply to proceedings before any Family Court. Thus, the provisions of section 9 and Order IX of the Code have been made inapplicable to the Family Courts. In this state of law, the opinion delivered in the case of Mst. Hawabai and 6 others which, as already stated, is based on the provisions of section. 9 read with Orders VII and IX of the Code of Civil Procedure, cannot be followed in cases relating to the Family Courts.
4. As explained above, learned counsel for the petitioner wants me to penalise the respondent for her failure to present the same plaint before the Second Family Court which had been returned by the first one. It is a well-- settled principle of law that penal action cannot be taken against a part unless it is warranted by express provisions of law. Since there are no such provisions in the West Pakistan Family Courts Act or the West Pakistan Family Courts Rules justifying the course suggested to me, I am not inclined to adopt that course.
5. For the reasons given above, this writ petition fails. It is dismissed in limine.