KH. MUHAMMAD NASIM, J.----The captioned appeal by leave of the Court has been directed against the judgment of the High Court dated 14.09.2020, whereby the writ petition filed by the appellant, herein, has been dismissed.
2. The brief facts necessary for disposal of this appeal are that the contesting parties, herein, filed cross suits before the Judge Family Court, Muzaf farabad. The appellant, herein, filed the suit for restitution of conjugal rights, whereas respondent No.2, herein, filed the suit for dissolution of marriage on the ground of cruelty , verbal abuse and non-payment of maintenance, etc. The case was at the stage of post-trial, when the appellant, herein, filed an application for summoning of one Shazia Nazir , as a witness through the process of the Court, however , the trial Court disallowed the said application vide its order dated 05.10.2018. Against the said order the appellant, herein, filed a writ petition bearing No.2103/20 18, which was decided by the High Court on 24.12.2019 and it was concluded that there is no illegality or infirmity in the order of refusal of summon ing of Shazia Nazir as witness, however , it was also observed by the High Court that the Family Court has ample powers to summon a witness for reaching a just conclusion. After the aforesaid decision of the High Court the appellant again moved an application before the trial Court for summoning of Shazia Nazir as witness and bringing on record the affidavit sworn by her as evidence, but the trial Court rejected the said application vide order dated 07.03.2020. Against the said order the appellant filed writ petition in the High Court, which has been dismissed through the impugned judgment in the following terms: "The petitioner has not filed an application in time for summoning Shazia Nazir as witness and has now prayed to the Court to direct the Family Court to summon her as Court witness. It cannot be doubted that a Family Court has ample powers to summon a person as Court witness but some plausible justification has to brought on record for such an order . The application filed by the petitioner before the Court below does not disclose any good cause for summoning Shazia Nazir as witness on his behalf or as Court witness. The Court below has rightly exercised its powers to refuse the application which cannot be disturbed by way of a writ petition. The case has already taken a long time to get finalization so the Court below is directed to dispose of the same expeditiously ."
This judgment of the learned High Court is subject matter of the instant appeal by leave of the Court.
3. Raja Ibrar Hussain, the learned Advocate, representing the appellant argued the case at some length and submitted that Shazia Nazir was included in the list of the witnesses but being a real sister of Aneela Nazir , respondent No.2, herein, she was not allowed by her family members to appear in the Court as a witness, therefore, the appellant moved the application before the Family Court for summoning of the said witness through the process of the Court. He argued that in spite of the fact that the Family Court has the ample powers to summon a witness for reaching the just conclusion but the Family Court failed to exercise its powers and illegally rejected the application as well as the affidavit of the appellant, without attesting its veracity . Thus, the order passed by the trial Court is patently illegal. The learned High Court failed to consider all these legal aspects of the case and illegally refused to accept the writ petition. He added that the impugned judgment is self-contradictory in nature, as on one hand the learned High Court observed in the operative part of the impugned judgment that the Family Court has ample powers to summon a person as Court witness if good cause is disclosed in the application, and on the other hand, dismissed the writ petition without taking into account that the appellant assigned the plausible reason in the application that the family members of Shazia. Nazir are not allowing her to appear before the Court for her testimony .
In this state of affairs, the impugned judgment is not sustainable. He added that both the Courts below have not considered the averments made in the application for summoning of Shazia Nazir , as witness and without resolving the real controversy involved in the case, passed the impugned order/judgment. He prayed for acceptance of appeal.
4. Conversely , Mr. Shahid Ali Awan, the learned Advocate, representing the contesting respondent forcefully opposed the arguments addressed on behalf of the appellant and submitted that under the relevant law, i.e. section 11(2) of the Family Courts Act, 1993, it was mandatory for the appellant, herein, to file the application for summoning of the witness Shazia Nazir , within three days after framing of the issues along with the list of witnesses. He argued that the Family Court framed the issues on 11.12.2017, while the application along with the affidavit has been submitted on 11.02.2020. The appellant failed to fulfill the mandatory requirement, hence the Family Court has committed no illegality while refusing the said application. The learned High Court has passed the impugned judgment quite in accordance with law. There are concurrent findings recorded by the Courts below and it is consistent practice of this Court not to disturb the concurrent findings, there fore, this appeal is liable to be dismissed.
5. We have considered the arguments of the learned Advocates representing the parties and gone through the available record along with the impugned judgment. The matter in this, lis relates to the summoning of the witness through the process of the Court. The relevant provision on the subject matter is section 11(2) of the Azad Jammu and Kashmir Family Courts Act, 1993. Although the learned High Court has reproduced the aforesaid provision in the impugned judgment, however , for convenience we would like to reproduce the same here again, which reads as under:- "11. Recording of evidence:-
1. ............................
2. The Court shall not issue any summo ns for the appearance or any witness unless, within three days of the framing of the issues, any party intimate the Court that it desires a witness to be summoned through the Court and the Court is satisfied that it is not possible or practicable for such party to produce the witness. "
The plain reading of the aforesaid provision of law speaks that the same is manda tory in nature and clearly placed embargo upon the Family Court not to summon any witness, after framing of the issues, however , if a party wants to summon a witness through the process of the Court, shall intimate within three days of framing the issues and ,if the Court is satisfied that it is not possible for such party to produce the witness then such witness may be summoned by the Court. In the instant case the Family Court framed the issues on 11.12.2017 and the parties were directed to lead their evidence. The record reveals that the process of recording the evidence has almost been completed and the case was at the stage of post-trial and only the evidence of Shazia Nazir , has to be recorded when on 18.08.2018, the appellant, herein, filed the application before the Family Court for summoning of Shazia Nazir as a witness, on the ground that her family members are not allowing her to appear before the Court for her testimony . The Family Court rejected the said application vide its order dated 05.10.2018. Against the said order the appellant herein, filed a writ petition before the High Court which was disposed of on 24.12.2019 with the observation that the Family Court has ample powers to summon a witness for reaching a just conclusion. After the aforesaid decision of the High Court the appellant again moved an application before the trial Court on 11.02.2020 for summoning of Shazia Nazir as witness and bringing on record the affidavit sworn 'by her as evidence, but the trial Court rejected the said application vide order dated 07.03.2020. Admittedly , the appellant filed the first application after a period of around 8 months of framing the issues, and the secon d after a period of more than 2 years. After perusal of the whole record, we are of the view that the Family Court has committed no illegality while rejecting the application for summoning the witness as in view of the statutory provision i.e. section 11(2) of the Family Courts Act, 1993, the same should have been filed within 3 days of framing the issues.
6. So far as the contention of the learned Advocate, representing the appellant that in the application for summoning of Shazia Nazir , as a witness the appellant disclosed the plausible reason that she is real sister of respondent No.1, herein, and her family members are not allowing her to appear before the Court for recording her evidence, is concerned, as the appellant has failed to fulfill the basic requirement of filing the application within three days of framing of the issues, therefore, in view of the spirit of section 11(2) of the Family Courts Act, 1993, the question of considering the said reason does not arise. Thus, the order record ed by the learned Judge Family Court is in accordance with law. The learned High Court has rightly dismissed the writ petition as under law writ petition is only competent where there is any violation of law or any statutory provision or any celebrated principle of law has been violated, whereas no such eventuality is available in the instant case. Our this view finds support from a case titled Azad Jammu and Kashmir Government and 4 others v. Dr. Muhammad Amin [2014 SCR 258], wherein this Court has observed as under:- "...... Writ petition is only competent where there is any violation of law or any statutory provision or celebrated principle of law and justice."
In view of the above, we do not find any illegality in the impugned judgment, therefore, the same stands upheld and this appeal being devoid of any force is hereby dismissed with no order as to costs.