CH. MUHAMMAD IBRAHIM ZIA, C.J.---The captioned appeal by leave of the Court arises out of the judgment of the High Court dated 30.07.2018, whereby the writ petition filed by the appellants, herein, has been dismissed.
2. The facts necessary for disposal of the captioned appeal are that the plaintiff-respondent No. 2, herein, filed a suit for declaration-cum-perpetual injunction, in respect of the suit land, in the Court of Senior Civil Judge Muzaffarabad on 11.02.2016. The learned Senior Civil Judge Muzaffarabad, vide judgment dated 27.02.2018, returned the suit for want of jurisdiction, whereupon,plaintiff- respondent No. 2, herein, filed a fresh suit before the learned Additional District Judge/Judge Family Court Muzaffarabad with some additional grounds. Along with the suit, she also filed an application stating therein that as her statement was being recorded before the learned Senior Civil Judge when the suit was returned, therefore, proceedings may be started form the same stage. This application was objected to by the other side. After hearing the parties, the said application was accepted by the learned Family Court vide order dated 08.06.2018 the order dated 08.06.2018, passed by the learned Family Court was challenged through writ petition before the Azad Jammu and Kashmir High Court on 03.07.2018 which after necessary proceedings through the impugned judgment dated 30.07.2018, has been dismissed on the ground that an interim order cannot be challenged through a writ petition.
3. Ch. Muhammad Manzoor, Advocate, the learned counsel for the appellant after narration of necessary facts submitted that according to the admitted facts and record the respondent No.2 filed declaratory suit in Civil Court, Muzaffarabad on 11.02.2016. The plaint was returned under the provisions of Order VII, Rule 10, C.P.C. for presentation of the same at proper forum. After return of the plaint, respondent No.2 has not presented the same rather she filed fresh suit in the family Court on 04.04.2018. The construction of suit is quite different as compared to the returned plaint.
After filing the suit, she filed an application for considering the proceedings conducted by the Civil Court as part of the family Court proceedings. The learned family Court illegally accepted this application, whereas, according to the enforced law both the Courts are creation of different statutes and for conducting the proceedings different modes and procedures are prescribed.
Moreover, according to the celebrated principle of law after return of the plaint under the provisions of Order VII, Rule 10, C.P.C. the proceedings will commence on presentation of the plaint before the proper forum and earlier proceedings are coramnon-judice and cannot be treated as part of judicial proceedings. In this case, the matter is quite distinguishable on the ground that according to provisions of special law i.e. AJ&K Family Courts Act, 1993 the family Court has to conduct the proceedings in quite distinct manner. The provisions of C.P.C. and the Qanun- eShahadat Order, 1984 are not applicable to the proceedings before the Family Courts. There is also a special procedure for recording evidence andpre-trial proceedings, thus, the proceedings conducted before the Civil Court where C.P.C. and Qanun-e-Shahadat Order, 1984 apply, cannot be made part of the proceedings of the family Court. This aspect has not been considered by the Courts below and the orders passed are quite against law. The learned High Court has dismissed the writ petition on the sole ground that as the family Court is regulated by the special law and interim orders are not appealable nor the revision petition is provided under law, hence, the same cannot be challenged by way of writ. The reason advanced is totally strange and against the law.
4. Conversely, respondent No.2 herself argued the case and submitted that the considerable proceedings has been conducted in the Civil Court and her evidence has also been recorded, therefore, if the same is not made part of the proceedings of family Court it will cause inordinate delay in disposal of the case, whereas, according to law expeditious disposal of the matter is necessary. She further argued that the suit before the family Court was filed due to change of forum, thus, the proceedings conducted before earlier forum being judicial be made part of the proceedings of subsequent forum.
5. We have heard the learned counsel for the parties and gone through the record. According to the admitted facts, respondent No.2 filed a declaratory suit in the civil Court. The proceedings before the civil Court are governed by the provisions of C.P.C. and Qanun-e-Shahadat Order, 1984, whereas, the family Court is creation of special law and the proceedings before it are conducted under the special procedure provided by law and rules excluding the application of C.P.C. and Qanun-e-Shahadat Order, 1984. According to spirit of law when there are two different procedures and two different Courts in that case the proceeding conducted before the earlier forum cannot be made part of the proceedings of later Court.
6. Even otherwise, according to the spirit of law when the plaint is returned to be presented before the proper forum the proceedings, shall commence on presentation of the plaint before such forum and any proceeding conducted by the earlier Court which returned the plaint shall be deemed coram-non-judice.
7. The returned plaint presented to Court of proper jurisdiction shall be considered as fresh proceedings for all intents and purposes. In this context the case reported as Mst. Hawabi and others v. Abdul Shakoor and others [PLD 1981 Kar. 277], may be relied upon wherein it has been held that:-- "With utmost respect the process of reasoning adopted by the learned Single Judge, to hold that a plaint represented before a Court of competent jurisdiction after its return by the Court which had no jurisdiction, is a continuation of the old proceedings and therefore the plaintiff is debarred from filing a different plaint in the latter Court, does not seem to be correct and is against the view consistently taken by almost all the Courts in India. In our view, to determine whether the presentation of a pliant to the Court of competent jurisdiction, is continuation of the old proceeding or not we have to answer a further question namely; whether the presentation of a pliant in a Court which had no jurisdiction could at , all be considered as a "proceeding in the suit"? If answer to this question is in the negative and which we are of the view, is so, then the plaint so presented to the Court having jurisdiction in the matter must be deemed to be a fresh plaint to all intents and purposes. We are clearly of the view that a plaint presented to a Court lacking jurisdiction in the matter is neither a "suit" nor "proceeding in the suit" since the Court to which it is presented cannot adjudicate upon its merit nor can it give any relief to the plaintiff on the basis of such a plaint.
Again, in our view, the words, "plaint" and "suit" are not synonymous. Before a plaint could be considered and treated as "suit", it has to be shown that it is properly stamped, the Court to which it is presented has pecuniary and territorial jurisdiction over the subject-matter, the parties mentioned in the plaint are emenable to be jurisdiction of the Court and the jurisdiction of such Court to try it is otherwise not barred under any law. The absence or presence of any of these ingredients may result in either return of the "plaint" or rejection of the "plaint" under Order VII, C.P.C. in contradiction to the dismissal of the "suit" as provided under Order IX, C.P.C. There is yet another aspect of the matter which has persuaded us to hold that the plaint after it is presented to the Court of proper jurisdiction should be considered to be a fresh proceeding for all intents and purposes. It is not disputed before us that court-fee recoverable on the plaint returned under Order VII, Rule 10 will be according to law prevailing on the date the plaint is filed in the Court having jurisdiction in the matter. It is also not disputed that for the purposes of Limitation Act, the plaint shall be deemed to have been presented on the date the returned plaint is represented to the Court having jurisdiction in the matter. Now, as held by the learned Single Judge, if the presentation of the plaint to the proper Court after its return by the former Court is to be considered a continuation of the old proceeding, the demand of court-fee according to the law applicable on the date of such presentation and the determination of the question of limitation with reference to date of such representation, in our opinion, could be insisted upon. Can in a pending proceeding such a course be adopted? The answer, plainly, is, in the negative. Such course can only be justified if the representation of the plaint in the Court of proper jurisdiction after its return by the Court which had no jurisdiction; is considered a fresh institution of the suit."
8. In this case, there is yet another aspect of the matter that the respondent has not presented the returned plaint rather she has filed fresh plaint with quite different title and change of averments, thus, in this state of affairs, her application for treating the proceedings conducted by civil Court as part of proceedings before the family Court is obviously not maintainable. The learned family Judge while accepting such application has travelled beyond law and the order is illegal, thus such order against which no remedy of appeal and revision is provided can be safely challenged in extraodinary jurisdiction. The reason advanced in the impugned judgment for dismissal of the writ petition that as no right of appeal or revision is provided, hence, writ is also not competent, is very strange. According to the constitutional provisions the remedy of writ is only available when no alternate remedy is provided in law. In case of alternate remedy the question of extraordinary writ jurisdiction does not arise, therefore, reason advanced in the impugned judgment is against the spirit of the Constitution and law and the same is not sustainable.#
9. Consequently, while accepting this appeal the order passed by the family Judge dated 08.06.2018 is declared illegal and the same is set-aside. The family Court is directed to treat the plaint as freshly filed suit and conduct proceedings according to the provisions of AJ&K Family Courts Act, 1993 and decide the same after completion of required proceeding according to law.
This appeal stands accepted in the above terms with no order as to costs.