AZIZ-UR-REHMAN, J.---The instant Petition has been filed on 22.05.2018, against the 'impugned orders' dated 20.04.2018 and 25.04.2018, passed by XXXI Family Judge-East Karachi [Respondent No.2 herein] and VIII Family Judge Karachi-East [Respondent No.3] respectively. The relevant brief facts leading to the filing of the instant Petition are that; the Petitioner herein, who is minor, had filed a Family Suit No.Nil of 2018, for Maintenance [Muhammad Affan son of Wasif Khan through her real mother Mst. Rafia Aijaz v. Wasif Khan son of Rab Nawaz], through his mother sometime, in April, 2018, against Wasif Khan who is ex-husband of Mst. Rafia and father of the minor Muhammad Affan, before the Court of XXXI Family Judge, Karachi-East, with prayer as follows:- It is therefore, respectfully prayed on behalf of the above-named plaintiff that this Hon'ble Court may be pleased to pass Judgment and Decree in favour of the plaintiff and against the defendants as follows:- [a] To direct the Defendant to pay the maintenance amount of Rs.10,000/- per month to the plaintiff since 19.04.2015.
[b] To direct the defendant to pay the future maintenance at the rate of Rs.10,000/- per month with increasement of 15% per annum to the plaintiff
[c] Any other relief or relieves as this Hon'ble Court may deem fit and proper in the circumstances of the case.
2. The learned XXXI Civil Judge and Judicial Magistrate, Karachi- East, who also is exercising family jurisdiction returned the Plaint vide a hand written order' dated 20.04.2018, passed on the 1st page of Plaint. Per said order of 20.04.2018, it was hit by the provisions of Rule 6 of West Pakistan Family Courts Rules 1961. Being relevant the said 'HAND WRITTEN ORDER' dated 20.04.2018 is reproduced herein below:-
Since the plaint is hit by the provisions of Rule 6 of the West Pakistan Family Courts Rules, 1961, the same is hereby returned for presentation before proper court.
3. The Petitioner through her 'real mother' upon returning of the plaint, opted to present the Plaint before the court of VIIIth Family Judge, Karachi-East, in whose jurisdiction, according to Petitioner's stand, the father , of minor Plaintiff, is residing. The plaint, nonetheless, was again returned to the Petitioner through her 'real mother' for presentation of the same before the Court having jurisdiction as according to VIII Family/Judge, Karachi-East better place for filing of the suit for 'Maintenance' of minor, is the court within the local limits of which the mother of the minor is residing. The material 'operative part' of the order dated 25.04.2018 read as follows:- Admittedly the above proviso provides that the suit can be filed where parties reside or last resided together but it is held by Honourable Superior Courts that the better place for filing a family suit is wife's residence and convenience of wife is to be seen in family matters. Reliance in this regards is placed on case law reported as NLR 1995 CLJ 687 and 2014 CLC 1029 [Honourable Sindh High Court, Karachi 2015 MLD 708, wherein the observations of Honourable Superior Courts in above mentioned case laws is reproduced below: 2014 CLC 1029 : 'Convenience of litigants was a main determining factor in family cases... Under Rule 6 of West Pakistan Family Courts Rules 1965, the Family Court within the local limits of which wife ordinarily resided, has jurisdiction to entertain the suit...Normal rules providing for territorial jurisdiction for trial of cases in Family Courts had been relaxed in favour of females than the convenience of males, as females were generally put to great inconvenience if ordered to pursue their suit in a Family Court at some distance NLR 1995 CLJ 687: 'Convenience of wife is to be preferred than that of husband. Husband's suit would be transferred to Family Court which is trying wife's suit on the ground that husband shall not suffer any greater inconvenience.
Apart from the above, no sufficient material is brought before this Court which supports that defendant is presently residing on the address provided on the plaint or cause of action accrued to plaintiff in the jurisdiction of this Court. In the lib ht of above referred case law of Hon'ble Superior Courts, since minor is contesting the case through his real mother, therefore better place for filing the suit for maintenance is before the Court within local limits of which the lady resides. Hence, plaint is hereby returned to the plaintiff for its presentation before the court having jurisdiction. [Emphasis supplied]
4. The Petitioner herein, thus feeling 'aggrieved' by and 'dis-satisfied' with the 'impugned orders' dated 20.04.2018 and 25.04.2018, passed by Respondents Nos.2 and 3 respectively has approached this Court by way of filing the instant Petition, with the following prayers:- It is therefore, prayed that this Hon'ble Court may be pleased to pass orders as follows:- a. That direct the Respondent No. 2 or 3 to entertain the suit for maintenance of the petitioner. b. That cost of the Petition shall be imposed upon /Respondent No.2 or 3, who have un necessary burden the petitioner for approaching this Honour able Court without any justification. c. Any other relief or relieves as this Hon'ble Court may deem fit and proper in the circumstances of the case. d. Cost of the Petition.
5. Upon filing of the instant Petition, when It came-up before the Court on 31.05.2019 then, the following order was passed:-- 31.05.2019.
Mr. Muhammad Akbar Awan for Petitioner .
X.X.X.X.
The suit for maintenance was filed by one Muhammad Afaan son of defendant Wasif Khan within the territorial limits of Police Station Soldier Bazar where the minor was residing. The plaint was returned by the Court in terms of Rule 6 of the West Pakistan Family Courts Rules, 1965 that it is to be filed before a proper Court for which reasons have not been assigned as to why it was not a proper Court when the minor was residing within the local limits of Police Station Soldier Bazar as the cause accrued to the plaintiff within its local limits for the recovery of maintenance at P.S. Soldier Bazar. However, the plaint was returned to the petitioner who then filed a suit within the jurisdiction where the defendant was residing and that too returned the plaint. It is claimed that in this case that the convenience of wife has to be applied as Muhammad Afaan is minor and is being looked after by his mother and therefore, for all intents and purposes Rule 6 ibid would be interpreted in the manner that the cause of action would have accrued within the local limits of Police Station Soldier Bazar.
Since a short point is involved and since the petitioner is suffering since last one year between two Courts below , let it be fixed in the first week of July , 2019. Repeat notice to the respondents.
6. Today, i.e. 17.09.2019 when, the above Petition came-up before me then, I heard learned counsel for the Petitioner and Additional Advocate General Sindh, and also gone through record, and 'impugned orders' passed by the Courts below minutely .
7. Mr. Muhammad Akbar Awan, learned counsel for the Petitioner, forcefully contended that both the 'impugned orders of 20.04.2018 and 25.04.2018, passed by the Courts below besides, being erroneous have been passed without properly appreciating the facts in its' true perspective, as well as, the law. Per learned counsel, the Petitioner, who filed the suit for Maintenance through her real mother, is residing along with his mother at House No.D-23 Roshan Colony, Soldier Bazar No.2, Karachi which falls within the jurisdiction of Respondent No.2 i.e. XXXI Family Judge, East-Karachi. As far as, Respondent No.1, who is father of minor is concerned, indeed, he is residing at House No.22/56, Khyber/Saifi Street, Model Colony Karachi who, as urged, falls within the jurisdiction of Respondent No.3 i.e. VIIIth Family Judge Karachi-East.
8. According to the learned counsel for the Petitioner [Plaintiff], the suit for 'Maintenance' of minor, against his father, was rightly filed before the Court of XXXI Family Judge Karachi-East. Besides, per learned counsel for the Petitioner, even the Court of VIIIth Family Judge Karachi-East, was/is not without jurisdiction to entertain the Suit filed by the minor Petitioner [minor Plaintiff] through hei real mother, as the father of the minor Petitioner-Plaintiff is residing within the jurisdiction of the Family Court No.VIII, Karachi-East. In this regard, reference was made to the case of Mst. Shabana Begum and 2 others v. Naeem-u-Din (2015 MLD 708), wherein, it was held as follows:- "It is a settled principle of law referred by the superior courts from time to time that suit arising under Family Courts Act between the same parties should be tried by one and th'e same Court and place, most suitable for such trial, is the place, where the wife is residing, in order to avoid any conflicting judgment, in the. interest of justice and fair play".
9. Before proceeding further at this juncture, I would like to refer to and reproduce, the provisions of Rule 6 of West Pakistan Family Court Rules 1965, herein as under:- 'Rule 6' of the Family Courts Rules, 1965, is reproduced herein-below:-
6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which:---
[a] the cause of action wholly or in part has arisen; or
[b] where the parties resided together: Provided that in suits for dissolution of marriage or dower , the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction.
10. Manifestly , in the case in hand, the 'cause of action' for filing of a suit for Maintenance has arisen in favour the minor Petitioner [minor Plaintiff] who has filed the said Suit through his mother, within the jurisdiction/local limits of Family Court No.XXXI Family Judge Karachi-East where both the minor and his mother are residing i.e. at House No.D-23 Roshan Colony, Soldier Bazar No.2, Karachi-East.
11. Mr. Ziauddin Junejo, Addl: A.G. under the facts and circumstances of the case also submits that the suit for Maintenance of minor son [Petitioner-Plaintiff], was rightly filed before Respondent No.2 i.e. XXXI Family Judge, Karachi-East where, both the minor son and his mother are residing i.e. within the local limits of Family Court No. XXXI, Karachi - East. The suit, as such, ought to have been entertained and decided on 'merits' in accordance with law instead of returning the Plaint to the Plaintiff, however, after notice to the Respondent No.1 herein [Defendant].
12. Heard.
13. Since, the Plaintiff who is minor had filed the Suit for Maintenance through his real mother, before Family Court No. XXXI Karachi-East [Respondent No.2 herein], where, not only the 'cause of action' has arisen in favour of the Plaintiff but also both the minor and his mother are residing within the territorial jurisdiction of the Family Court No. XXXI Karachi East [Respondent No.2] herein. Needless to say herein, that 'cause of action' has not been defined in Civil Procedure Code [In short C.P.C.] however, it is a bundle of facts asserted in the Plaint. For ascertaining the 'cause of action' with reference of Rule [a] of West Pakistan Family Courts Rules, 1965, the entire facts stated in a 'Plaint' when taken together, is to constitute 'cause of action'. In this regard, reliance can be placed on the case of Muhammad Tariq Mahmood and 2 others v. Anjuman Kashmiri Bradari Khisht Faroshan through President Abdul Ashfaq and 21 others [2003 CLC 335]. The relevant portion therefrom, reads as follows:- 9.... 'Cause of action' has not been defined in the C.P.C. It is the bundle of facts, which have been alleged by the plaintiff in the plaint. It has been held in the case reported as National Development Finance Corporation v. Messrs Leepa Shoes Ltd., Mirpur 1992 MLD 474 that to ascertain cause of action only the facts stated in the plaint are to be construed to determine whether they constitute a cause of action". It means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed".
14. Moreover, one has to also see the purpose, object and concept of West Pakistan Family Courts Act, 1964 [XXXV of 1964], which for ready reference, is reproduced herein below:- Preamble, whereas, it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.
15. A Preamble, it is worth to note besides being a key to understand the Act, the same is used to 'understand' and 'interpret' the provisions of law/Act, in 'juxtaposition' of the preamble of a statute. Regarding this aspect of the matter reliance can be placed on the case of Khan Gui Khan and others v. Daraz Khan [2010 SCMR 539], wherein it was observed as follows:- 16...."Preamble is key to understand the Act which is always used to understand and interpret the provisions of Act keeping in view the preamble of the statute".
16. Keeping in view the facts and circumstances of the case in hand, the 'hand written order' dated 20.04.2018, passed by XXXI Family Judge, Karachi - East, on the face of it is not only a non- speaking but also an erroneous and illegal order. The same, as such, is declared of no legal effect.
Resultantly, the same is hereby set-aside.
17. For and in view of the above, the instant Petition stands allowed with direction to the Petitioner to re- present the 'Plaint' before the Court of XXXI Family Judge, Karachi-East, immediately. On presentation of the plaint, learned Family Court No.XXXI, Karachi-East, is directed to entertain and decide the same thereafter 'on merits' and in accordance with law however, after issuance of notice to the Respondent No.1 herein [Defendant].
18. The Petition stands 'disposed of accordingly along with pending application[s].