Mirza Viqas Rauf, J. This constitutional petition is in the form of certiorari, stems from the proceedings in the suit for dissolution of marriage on the basis of khula, recovery of dower, maintenance, dowry articles and gold ornaments, instituted by respondent No.3 (hereinafter referred to as 'respondent') before the Family Court, Attock. The petitioner, being the defendant though contested the suit but it was decreed vide judgment dated 30th April, 2019. Being aggrieved, the petitioner preferred an appeal before the learned District Judge, Attock but his appeal was dismissed on account of non-prosecution by way of order dated 25th June, 2019, hence this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution").
2. On this petition, notice was issued to the respondent but she did not appear, as a sequel, proceeded against ex-parte by way of order dated 21st November, 2019. Mr. Agha Muhammad Ali Khan, Advocate was then appointed as amicus curiae vide order dated 11th February, 2025 on account of reasons recorded therein to the following effect:- This constitutional petition is arising out of order dated 25th June, 2019, whereby the appeal preferred by the petitioner under Section 14 of the Family Courts Act, 1964 was dismissed for non- prosecution.
2. Learned counsel for the petitioner, when confronted as to why the petitioner did not move an application seeking restoration of his appeal, dismissed for want of prosecution, submits that there is no specific provision under The Family Courts Act, 1964 and The Family Courts Rules, 1965, bestowing powers upon the appellate court to restore the appeal dismissed as such.
3. In order to resolve the question, involved in this petition, Agha Muhammad Ali, Advocate is appointed as amicus curiae to assist the Court. Office to deliver copies of all necessary documents to the learned amicus, who shall assist the Court on next date of hearing.
3. I have heard learned counsel for the petitioner as well as learned amicus curiae at length and also perused the record with their able assistance.
4. In the above backdrop, the first and foremost question which emerges for determination of this Court is encapsulated/summarized as under:- Whether a party whose appeal under Section 14 of the Family Courts Act, 1964 is dismissed in default can invoke the constitutional jurisdiction of High Court under Article 199 of the Constitution against the said order instead of moving an application for re-admission of appeal before the Appellate Court?
Thus, before delving upon any other issue, it would be advantageous and apt to first answer the above noted question.
5. In order 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, Family Courts (Act XXXV of 1964) (hereinafter referred to as "Act, 1964") was enacted.
Family Courts in each District of the Province were established by the Government, bestowing exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part-I of the Schedule, subject to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961. Section 14 of the Act, 1964 deals with the appeal and reads as under:- 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 appealable-
(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 passed by 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.
Punjab amendment: 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.] It is clearly manifested from the bare reading of the above provision that no procedure is laid down therein for the appellate court how to deal with the appeals preferred thereunder.
6. Section 26 of the Act, 1964 empowers the Provincial Government to make rules for carrying out the purpose of the Act and more specifically to provide for the procedure to be followed by the Family Courts. In exercise of the powers conferred by Section 26 of the Act, 1964, the Family Courts Rules, 1965 (hereinafter referred to as "Rules, 1965") were framed. Rule 12 encompasses the situation relating to dismissal of suit in default and its restoration on showing sufficient cause whereas Rule 13 empowers the Family Court to set-aside the ex-parte proceeding or decree in terms thereof. Rule 22 deals with the appeals and provides a mechanism, time for filing and form of the appeals but neither the Act, 1964 nor the Rules, 1965 cater the situation if the appeal is dismissed on account of default of the appellant. Needless to mention that there is even no provision authorizing the appellate court to dismiss the appeal for non-prosecution.
7. There is no cavil that Section 17 of the Act, 1964 excludes the applicability of provisions of the Code of Civil Procedure (V of 1908) (hereinafter referred to as "CPC") to the proceedings before the Family Court in respect of Part-I of Schedule with exception of Sections 10 and 11 of the CPC but it does not mean that Family Court would be completely debarred to call in aid any of the provisions of CPC, when ends of justice so demand and require. The purpose of ouster of the provisions of the CPC in the proceedings before the Family Courts is to avoid the technical implication of such provisions so as it would not frustrate and hamper the proceedings before the Family Courts which otherwise are supposed to be speedy and expeditious. In nutshell, despite clog of Section 17 of the Act, 1964, in absence of any specific provision in the Act, 1964 dealing the subject, Family Courts are not precluded to invoke the provisions of CPC or to draw an analogy therefrom for securing the ends of justice. Guidance to this effect can be sought from FOZIA MAZHAR versus ADDITIONAL DISTRICT JUDGE, JHANG and others (PLD 2024 Supreme Court 771).
8. In somewhat similar facts and circumstance, in the case of MUHAMMAD TABISH NAEEM KHAN versus ADDITIONAL DISTRICT JUDGE, LAHORE and others (2014 SCMR 1365), Supreme Court of Pakistan held as under:-
3. ...... As regard other pleas, all these are relating to the merits of the judgments and decrees of the Family Court and the Appellate Court, which cannot be considered in the circumstances when the petitioner never challenged and got the ex parte decree against him set aside and that decree had attained finality. We are not persuaded to hold, that the ex parte decree dated 4-7-2008 was void, for the reason that there is no provision in the West Pakistan Family Courts Act, 1964 to strike off the defence of the petitioner, when he failed to file the written statement, thus it (decree) should be ignored; suffice it to say that the Family Court is the quasi judicial forum, which can draw and follow its own procedure provided such procedure should not be against the principles of fair hearing and trial, thus if a defendant of a family matter, who is duly served; and especially the one who appears and disappears and also does not file his written statement within the time allowed to him by the Court, the Court shall have the inherent power and ample power to proceed ex parte against him, to strike off the defence and to pass an ex parte decree in line with the principles as are enunciated by the Civil Procedure Code. In any case, such order (striking off defence) cannot be said, treated or deemed to be void, which should be ignored as nullity in the eyes of the law as argued by the learned counsel for the petitioner. If the petitioner was aggrieved of the order, he should have either got it set aside by filing an application before the Family Court or by challenging the same in appeal, which admittedly was not so done. As far as the argument, that the remand of the matter by the appellate Court is illegal and unlawful, we are not convinced, if there is any such illegality in the appellate court order, which has been upheld in the constitutional jurisdiction of the learned High Court as well. No case for the interference in the instant jurisdiction is made out. Dismissed. Leave refused.
9. Reference to the above effect can also be made to MUHAMMAD ARSHAD ANJUM versus Mst.
KHURSHEED BEGUM and others (2021 SCMR 1145) in which Supreme Court of Pakistan held as under:-
4. ...
The Family Court Act 1964 (W.P. Act XXXV of 1964) (the Act) was enacted for"..... expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith"; provisions of the Qanun-e-Shahadat Order, 1984 (P.O. No.10 of 1984) and those of the Code except sections 10 and 11 have been excluded to achieve the legislative intent.
The exclusion of normal rules of procedure and proof, applicable in civil plenary jurisdiction for adjudication of disputes in proceedings before a Family Court, is essentially designed to circumvent delays in disposal of sustenance claims by the vulnerable; this does not derogate its status as a Court nor takes away its inherent jurisdiction to protect its orders and decrees from the taints of fraud and misrepresentation as such powers must vest in every tribunal to ensure that stream of justice runs pure and clean; such intendment is important yet for another reason, as at times, adjudications by a Family Court may involve decisions with far reaching implications/consequences for a spouse or a sibling and, thus, there must exist a mechanism to recall or rectify outcome of any sinister or oblique manipulation, therefore, we find no clog on the authority of a Family Court to re-examine its earlier decision with a view to secure the ends of justice and prevent abuse of its jurisdiction and for the said purpose, in the absence of any express prohibition in the Act, it can borrow the procedure from available avenues, chartered by law.
10. In recent past in the case of Mst. MISBAH IFTIKHAR and another versus Mst. ALEESA and 3 others (PLD 2025 Lahore 249) this Court ruled as under:-
10. Now adverting to the moot point as to whether an application under Section 12(2) of the "C.P.C." is maintainable before a Family Court established under the "Act, 1964" in view of exclusion of provisions of the Code ibid in the light of Section 17 of the "Act, 1964"; suffice to observe that provisions of the "C.P.C." are generally ousted to the Family Courts to frustrate the technicalities to hamper the proceedings before the Family Courts, as the "Act, 1964" stresses upon speedy settlement of family disputes. The exclusion of provisions of the "C.P.C.", however, does not mean that it cannot be pressed into service at all by the Family Courts. Where there is no provision in the "Act, 1964" to deal with a subject, provisions of "C.P.C." can be invoked for the advancement of ends of justice. Needless to reiterate that the provisions of the "C.P.C." are though stricto sensu not applicable in family matters but the Family Court is always competent to mold the relief keeping in view the circumstances of each case to foster justice.
Reference to this effect can also be made to MUHAMMAD SADIQ versus ADDITIONAL DISTRICT JUDGE and others (1993 CLC 2426) and MUHAMMAD ILYAS versus ADDITIONAL DISTRICT JUDGE and others (1991 CLC 1408).
11. Looking from another angle, it is observed that there exists no provision in CPC specifically providing the consequences of failure of the revision applicant to appear before the court and simultaneously there is no specific provision dealing with the situation if the revision application is dismissed on account of default as compared to suit, instituted and appeal preferred under the said Code. In the case of MANDI HASSAN alias MEHDI HUSSAIN and another versus MUHAMMAD ARIF (PLD 2015 Supreme Court 137), Supreme Court of Pakistan resolved the proposition in the following manner:-
3. Having simply reiterated the correct legal position about the nature of civil revision, we now move forward to deal with the proposition in hand and state, that a comprehensive procedure has been prescribed by the Code of Civil Procedure (C.P.C.) for the purposes of regulating and conducting suits and appeals. Suits can be dismissed for non-prosecution/default and restored under Order IX, C.P.C.; the relevant provisions in this context about appeals are found in Order XLI, C.P.C. But, unlike the above there are no provisions in C.P.C. to cater for a situation, where a revision petitioner fails to appear and to prosecute his case. The question is whether the court in such a situation, is obliged to keep the matter pending until and unless the petitioner appears before the court and argue his case or should beseech the presence of the petitioner (his counsel), allowing an indefinite period of time to him for prosecuting his case. And in this manner not only the court becomes hostage to the petitioner and remains duty bound and obliged to retain the matter in its docket and debit infinitely, which situation may not only result to the advantage and premium of the petitioner, rather to the contrary, to the prejudice/disadvantage to the opposite side but also to other litigants before the court(s) who might have been yearning for years for the hearing and the disposal of their cases, however, on account of huge pendency caused due to one reason or the other stands no chance of expeditious justice. This is neither in consonance with the rules of justice nor the 'equity jurisprudence' developed in this country; in the alternative the court should dismiss the revision for non-prosecution/default on the principle(s) that whosoever has approached it (the court) for the exercise of his right has "abandoned" the same; or is no more interested and/or vigilant enough to pursue his cause etc. This dismissal can be validly made in the exercise of inherent jurisdiction of the court meant to prevent in this way an abuse and process of the court.
The third option could be that the court necessarily should decide the revision petition on merits, on the principle that being in supervisory jurisdiction and the matter being between the superior and the subordinate courts, the superior court should rectify the error on its own, (note:- where the court finds a case squarely falling within the purview of section 115, C.P.C.). Out of the three possibilities mentioned above, in our candid and Considered view, where a revision petition has not been admitted for regular hearing it should be dismissed for non-prosecution on the grounds, inter alia, as highlighted in the preceding part. This shall be in line with and shall be done by the court while exercising its inherent jurisdiction to meet the ends of justice and to prevent the abuse of process of the court, which inherent power of the court has been recognized by section 115, C.P.C., which stipulates that "Saving of inherent powers of Court.---Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court". Likewise the reversal of such dismissal and restoration of the revision can also be made by the court resorting to its inherent jurisdiction so far as the case for restoration has been made out. But this should only be done where such inherent jurisdiction of the court has been invoked by the revision petitioner (note: it may be pertinent to mention here that we are deliberately refraining ourselves from commenting on the proposition that once the revision is admitted to regular hearing generally it should not be dismissed for non-prosecution, and may comment in this regard in an appropriate case, because in the instant matter the revision was at the motion stage). On the basis of above, it is held, that a revision petition can be dismissed for non-prosecution by the Court in the exercise of its inherent power, and akin thereto only the inherent power of the Court can and should be pressed into service for its restoration.
Guidance to the above effect can also be sought from GHULAM QADIR and others versus Sh.
ABDUL WADOOD and others (PLD 2016 Supreme Court 712).
12. After having an overview of the brief survey of law, I feel no cavil to observe that an appellate court dealing with an appeal under Section 14 of the Act, 1964 not only is vested with the inherent power to dismiss the appeal for non-prosecution but it can also restore the same on showing sufficient cause by the appellant if his appeal has been dismissed on account of default.
13. Article 199 of the Constitution, while bestowing the jurisdiction upon the High Court places certain restrictions about which the High Court should/must always be conscious before entering into realm of exercise of such jurisdiction one of which is the availability of alternate and efficacious remedy. Since the petitioner has an alternate and efficacious remedy in the form of moving an application for restoration of appeal, so he is precluded to invoke the extraordinary jurisdiction of this Court, resultantly this petition is dismissed, being not maintainable, leaving the petitioner at liberty to move an application before the appellate court for restoration of his appeal, dismissed in default. Needless to observe that if any such application is moved by the petitioner that shall be dealt with and decided strictly in accordance with law. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.