This constitutional petition in terms of Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 assails the vires of order dated 10 July, 2018, whereby the learned Judge Family Court, Rawalpindi proceeded to dismiss the application moved by the petitioner for setting aside ex-parte proceedings initiated against him vide order dated 17 January , 2018.
2. Succinctly , the facts necessary for adjudication of instant petition are that respondent No.1 instituted a suit for recovery of maintenance, dower and dowry articles before the learned Judge Family Court, Rawalpindi. The suit was resisted by the petitioner being defendant and while submitting his written statement controverted the facts asserted in the plaint. During the proceedings, the petitioner disappeared from the scene and consequently was proceed ex-parte vide order dated 17 January, 2018. The petitioner moved an application for setting aside ex parte proceedings. The application was resisted by the respondent No.1 and ultimately , the same was dismissed vide order dated 10 July, 2018. hence this petition.
3. When a query was put to the learned counsel for the petitioner as to maintainability of instant writ petition in presence of remedy of appeal to the petitioner in terms of Section 14 of The Family Courts Act, 1964 against the impugned order, learned counsel for the petitioner contended that the impugned order is not appealable rather a writ is maintainable, as it is an interlocutory order.
4. Heard. Record perused.
5. In order to examine the competency of this constitutional petition, it would be advantageous to ponder upon the language of Section 14 of The Family Courts Act, 1964 which deals with the right of appeal. The same is reproduced below: - "S. 14. Appeal._[(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 appealableth th th th
(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 an Additional District Judge.
(b) To the District Court, in any other case.
(2). No appeal shall lie from a decree by a Family Court____
(a) for 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,
(b) for dower [or dowry] not exceeding rupees [thirty thousand];
(c) for maintenance of rupees [One thousand] or less per month Subsection (2) in clause (b), for the word "thirty thousand" the words "one hundred thousand" substituted, and (b) "one thousands" the words "five thousand" substituted by Family Courts (Amendment) Act 2015 (XI of 2015).
[(3) No appeal or revision shall lie against an interim order passed by a Family Court.
(4) The appellate Court referred to in sub-section (1) shall dispose of the appeal within a period of four months.] (Underlining supplied for emphasis)
Bare reading of above referred provision of law postulates that appeal is permissible under the said provision with certain restrictions as enunciated in subsection (2), against a decision given or a decree passed by the learned Family Court.
6. The word "decision" used in Section 14 of The Family Courts Act, 1964 is quite similar and akin to the term "case decided" used in Section 115 of The Code of Civil Procedure (V of 1908) (hereinafter referred as "CPC"). It is well settled principle of law that revision under Article 115 of "CPC" is only maintainable against an order which comes within the purview of "case decided". The controversy with regard to interpretation of "case decided" had arisen in the case of "Messrs NAITIONAL SECURITY INSURANCE COMPANY LIMITED and others v. Messrs HOECHST PAKISTAN LIMITED and others" (1992 SCMR 718) wherein the Hon'ble Apex Court held as under: - "The expression "case decided" does not necessarily mean the decision of the entire suit. It may relate to a decision of an interlocutory matter requiring a judicial mind. The old view that an interlocutory matter did not fall within the expression "case decided", was abandoned by the High Court in Bibi Gur Devi's case (AIR 1943 Lah. 65), and the case cited by the learned counsel for the agents is no longer good law. The order of the trial Judge was passed on no material and ex facie appeared to be perverse.
The learned Single Judge therefore could have interfered under section 115 of the Code. See Bashir Ahmed Khan v. Qaisar Ali Khan (PLD 1973 SC 507). The learned Single Judge has given cogent reasons for interfering with the lower Court's order. The order of the learned Single Judge granting leave conditionally to the agents to defend, is legal and proper and no exception can be taken to it."
The above view was reiterated even in the cases of "Haji SAKHI DOST JAN v. PAKISTAN NARCOTICS CONTROL BOARD and another" (1998 SMCR 1798), and "NESTLE MILKPAK LIMITED v. CLASSIC NEEDS PAKIST AN (PVT)
LTD. and 3 others" (2006 SCMR 21 ).
7. After having an overview of above referred case laws, it became quite easier to comprehend the scope of term "decision" used in Section 14 of The Family Courts Act, 1964. The dictionary meaning of word "decision" in different law dictionaries is given as follows:- a. Wharton's Law Lexicon: the word "decision" means "a judgment - b. Stroud's Judicial Dictionary: "decision" is a popular and not technical word and means "little more than a concluding opinions". c. Black's Law Dictionary: A judicial or agency determination after consideration of the facts and the law; esp., a ruling, order . or judgment pronounced by a court when considering or disposing of a case. d. Chambers English Dictionary: The act or product of deciding: settlement: judgment: the quality of being decided in character . e. Webster's Dictionary: I. The act of separating or cutting off: detachment of a part.
2. The act of deciding or settling a dispute or question by giving a judgment.
3. The act of making up one's mind.
4. A judgment or conclusion reached or given5. The quality of being decided: prompt determination, as, a man of decision.
6. In boxing. a victory on points instead of by a knockout.
It is, thus, clear that the intent of legislature by inserting the word "decision" in Section 14 of The Family Courts Act, 1964 was not to restrict the right of appeal only to the extent of a decree but this right is extended to a decision determining the point in issue after deliberation.
This Court, in the case of "MST NAUREEN vs. FAMILY JUDGE, FAISALABAD (MR. EHSAN SABIR), ETC"
(NLR 2009 Civil 481). while interpreting the term "decision" held as under: - "12. The petitioner has been non-suited by the learned Appellate Court on the grounds that the appeal against the interim order passed by the learned Judge Family Court was not maintainable in view of the provisions of Section 14 of the Family Courts Act, 1964. The legislature has provided appeal through the aforesaid section against a decision or a decree given by a Family Court. The Dictionary meaning as given in Wharton's Law Lexicon of "decision" means a judgment, and as per Stroud's Judicial Dictionary, "decision" is a popular and not technical word and means "little more than a concluding opinions. The word "decision" has been defined in Webster Encyclopedic Dictionary means "the act of deciding, determination, final judgment or opinion in a case which has been under deliberation or discussion, whereas the decree has been defined in Section 2(2), CPC.
Even otherwise, the word "decision" used in Section 14 has to be read as ejusdem generis with decree and not only final decision of a Family Court. The word "decision" not only covers the final judgment but also interlocutory order, therefore, in such like situation, the appeal would be maintainable.
While having a look of a different meaning and definition is broad enough to cover both final judgments and interlocutory orders and although, it is some times limited to the sense of judgment and some times understood as meaning simply the first step leading to a judgment. Lastly, the word "decision" may also include various rulings as well as orders."
The same view was reiterated in the cases of "Mst. MAHAM SHABBIR vs. SALMAN HAIDER and others"
(2014 CLC 330), "IMTIAZ AHMAD KHAN vs. Mst. AQSA MANZOOR and others" (PLD 2013 Lahore 241) and "MUHAMMAD ZAMAN vs. UZMA BIBI and 4 others" (2012 CLC 24 Lahore).
8. For the afore-noted reasons, I have no hesitation to hold that the instant writ petition is not maintainable, therefore, the same is dismissed in limine.