By filing this petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has assailed legality and propriety of the order dated 8.2.2019 passed by learned Judge Family Court, Dunya Pur Distt. Lodhran whereby Bailif f has been appointed by the said Court in a family suit to visit house of the petitioner/defendant, to recover dowry articles lying in his possession and to deliver the same to the respondent/ plaintif f.
2. Background of the case necessitating filing of the instant petition is that Mst. Shamim Ghulam Bari, respondent No. 3/plaintif f (the respondent) filed a family suit against the petitioner for multiple reliefs including for recovery of dowry articles. She also appended acclaim ed list of articles (Annexure-C) given by her parents to her at the time of marriage. The petitioner by submitting written statement controverted the list of articles annexed with the plaint by the respondent and appended his own list (Annexure-D) of such articles which were allegedly given to the respondent by her parents and with all fairness undertook to return the same. It so happened that at the time of plaintif f's evidence, on request of learne d counsel for the respondent the learned Judge Family Court, though opposed by the petitioner , vide impugned order appointed a Bailif f to recover and hand over admitted dowry articles from the petitioner to the respondent. Hence this petition.
3. Learned counsel for the petitioner has vehemently contended that both the parties had filed separate lists of dowry articles and in such circumstances only course left for the learned Judge Family Court was to believe version of either party after recording evidence, while passing judgment and decree and thereafter to execute the same in accordance with law .
4. Learned counsel has been heard at length.
5. Admittedly the petitioner has taken the stance that dowry articles mentioned in the list (Annex-D) appended with the written statement were lying with him and he was ready to hand over/deliver the same. Thus he has himself conceded partial claim of the plaintif f and of course order/decree can be passed to the extent of admitted claim.
Therefore, the learned Judge Family Court has rightly passed the order , impugned herein, for return of admitted articles to the respondent/plaintif f and to resolve remaining controversy fixed the cause for evidence of the parties.
Needless to mention that object behind enactment of the Family Courts Act, 1964 was to shorten agony of litigating parties and provide them justice as early as possible as envisaged in Section 12-A of the Act ibid. In the same context observations of the Hon'ble Supreme Court in case Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others ( 2011 SCMR 1361 ) at page 1373 are quite relevant which are reproduced as under: "So, if the provisions of the Code and the Evidence Act were made applicable, it would have frustrated the very object of the Act, which requires the Special Court shall be constituted and such Court hall have exclusive jurisdiction in respect of the matrimonial disputes. The object of the Act is to shorten the agony of litigant parties and to provide them justice as early as could be possible. Matters pertaining to the Family Court be of dissolution of marriage, restitution of conjugal rights, entitlement of a child or children or of wife to the maintenance, payment of dower , all such issues are required to be decided in speedy manner , because no such issue can be left undecided for decades; because a minor , seeking maintenance, may become major by the time his case is decided by the Family Court or a wife, seeking dissolution of marriage, may go out of marriag eable age by the time she get decided her suit for dissolution of marriage."
No doubt to achieve afore-noted aims and objects, by way of Section 17 of the Act, ibid application of Code of Civil Procedure, 1908 (C.P.C.) except Sections 10 and 11 has been excluded in order to avoid technicalities by providing a short, simple and speedy methodology for settlement and disposal of disputes relating to family matters.
Notwithstanding the fact that provisions of C.P.C. are not stricto senso applied to the cases of the Family Courts so as to achieve the ends of settlement of such disputes at the earliest, yet it is settled law that the Family Court has discretion and is always competent to adopt any procedure to decide the case provided such procedure is not expressly barred by the said Act of 1964 or offends any of its provisions or is violative of any right of parties being against the principles of fair hearing/trial. Meaning thereby that the Family Court can follow the principles and procedure laid down in C.P.C. if such principles are not contrary to the Family Laws and are matching with aims and objects of the Family Court, Act. Steering thoughts in this regard, besides Farzana Rasool' s case supra, have been gathered from Muhammad Tabish Naeem Khan v. Addl. District Judge, Lahore (2014 SCMR 1365 ), Abdul Rehman v. Mst. Ruqia Begum and others (2018 C.L.C. Note 35 Lahore), Sulman Ahmad Khan v.
Judge Family Court, Multan and others (PLD 2017 Lahore 689), Malik Hashim Amir Khan v. Mst. Saadia Tabbassum and another (2015 MLD 89 Lahore), Ghulam Murtaza v. Additiona l Distt. Judge (II) D.G. Khan and 2 others (1999 C.L.C. 81 Lahore) and Nadeem Yousaf v. Sara Nadeem and 3 others (2017 MLD 786 Lahore).
6. Worth mentioning that under Order XII Rule 6 C.P.C. where defendant admits claim of the plaintif f either in pleadings or otherwise the court has discretion to decree the suit on the basis of such admission, to the extent of admission and proceed with regard to rest of the claim/controversy and this provision of law enables a court to dispose of such part of the suit with regard to which there is no dispute between the parties. In this regard reliance can be placed on case Allah Ditta and 2 others v. Walayat and 17 others [PLJ 1983 SC (AJ&K) 131 (Appellate Jurisdiction)]. Worth mentioning that impugned order is in line with these provisions of C.P.C. Moreover at the stage of framing of issues under Order XIV Rule 1(5) C.P.C. the Civil Court is competent to record better statements of the parties and such exercise of discretion has always been approved and appreciated by this Court, so that controversial issues between the parties may so far as possible be curtailed and the remaining controversy be adjudicated by recording evidence of the parties. Such course even relieves the parties to produce large number of witnesses and their lengthy cross-examination. It will not be out of context to observe that the intent of legislature while promulgating Family Courts Act, 1964 was the same. For that very purpose provisions of pre-trial and post-trial reconciliation were introduced.
7. Admittedly the petitioner has taken this stance that dowry articles mentioned in the list appended with the written statement were lying with him and he was ready to hand over/deliver the same. Thus he has himself conceded partial claim of the plaintif f and, of course, decree can be passed in line with terms of Order XV Rule 1 of the C.P.C.
The petitioner , once having himself conceded possession over certain dowry articles in view of "Principle of Estoppel" cannot be allowed to latter on retract from his earlier admission. Such retraction cannot be allowed because same would result in distrust of public/litigants in judiciary . Needless to mention that Rule of Estoppel prevents a person from saying inconsistent things in successive actions and prevents a party from saying anything which would contradict his own previous act. The learned Judge Family Court has therefore, rightly passed the order , impugned herein, for return of admitted articles to the respondent/plaintif f. The impugned order is not causing any prejudice to the petitioner or offending any legal provision warranting interference by this Court in its constitutional jurisdiction which is equitable relief, always exercised to correct any illegality , irregularity and/or jurisdictional defect and not to impede justice. I find support from Sulman Ahmad Khan's case supra wherein it has been laid down by this Court that technicalities should not stand in the way of justic e. Rather such arrangement, to my mind, would give following benefits to the parties: Electronic goods/items can be used by the bride and her family . Even prompt return of dowry articles will enable bride to use these articles in her subsequent marriage. Early return of most of goods to its owner may persuade the claimant/plaintiff to forego rest of minor claims and thus there is every possibility of narrowing down/or even ending the controversy at the earliest. Wear and tear of goods with passage of time can be avoided/controlled and such controversy at the stage of execution of decree can be curbed. Relieving bridegroom from responsibility of keeping such items in the house whereas in urban areas, there is no extra space/ room for keeping such items owned by opposite party . Allah Almighty ordains that 'Amanat' be returned to the person entitled to it.
8. In view of above, I do not find any merit in this petition which is accordingly dismissed in limine.
9. The Registrar of this Court shall circulate copy of this order to all the learned Distt. Judges in the Province for guidance of learned Judicial Of ficers working under their administrative control.