Through this constitutional petition, the petitioner (who was defendant before the Family Court) has called in question the order passed by the learned Senior Civil Judge (Family Division), Toba Tek Singh dated 04.07.2025, whereby the right of the petitioner/defendant to file written statement has been closed.
2. Learned counsel for the petitioner inter alia states that in terms of judgment titled Maqsood Ahmad versus Judge Family Court, Burewala and 5 others (2001 CLC 567) there is no time limit prescribed in the Family Courts Act, 1964, or rules framed thereunder for filing written statement and the learned trial court has committed material illegality while pronouncing the impugned order against the petitioner without providing reasonable opportunity to file written statement.
Further the law favours the matters to be decided on merit rather than on technical grounds, therefore, claims that the impugned order is liable to be set-aside.
3. Heard. Record perused.
4. Record divulges that suit for Recovery of maintenance allowance @ Rs. 20,000/- each with past maintenance of Rs. 7,20,000/- for a period of one year was filed against the petitioner by the plaintiffs/respondent Nos. 1 to 3 i.e. his wife and two minor children on 12.05.2025 and notices were issued for 26.05.2025 but as on the said date the learned Presiding Officer was on casual leave, the case was adjourned to 16.06.2025, when power of attorney was submitted on behalf of petitioner/ defendant and the case was adjourned to 25.06.2025 for filing written statement, on which date at the request of learned counsel for the petitioner/ defendant, the case was adjourned to 30.06.2025 subject to payment of costs of Rs. 200/- for filing written statement. On 30.06.2025 on further request by learned counsel for the petitioner/defendant matter was again adjourned for payment of cost and filing written statement to 04.07.2025 with absolute last/final opportunity to do the needful and ultimately on 04.07.2025, the right of the petitioner to file written statement was closed.
The operative portion of the order is reproduced below: "Despite repeated directions of the court and having number of opportunities, defendant has not submitted the written statement. So much so, at the warning even with costs of Rs. 200/- defendant has failed to comply with the order of court. Hence, in view of the matter, right of defendant to submit a written statement is hereby, struck off.
5. The petitioner filed an appeal against the said order before the learned appellate court in the District but the same was withdrawn by him vide order dated 15.07.2025 and it is claimed that the same was withdrawn as no appeal was maintainable against interlocutory orders. Now the order passed by the learned trial court is under challenge through this petition.
6. The main stance of learned counsel for the petitioner is that in the precedent case-law of Maqsood Ahmad (Supra), the learned court set aside the order of closure of written statement in a family suit and provided opportunity to the petitioner therein for filing the same by observing that neither the Family Court Act, 1964, nor rules framed thereunder provided a time limitation for filing written statement and on the basis of said principle it is claimed that the impugned order is not sustainable.
7. On the other hand, the learned Law Officers state that said legal position has changed by amendment in Section 9 of the Family Court Act, 1964.
8. At the very outset, it is observed that the argument advanced by the petitioner that in view of the principles laid down in afore-said judgment, there is no time-limit prescribed for filing written statement is misconceived for the reason that the said judgment relates to the law as it existed on the day when the said judgment was passed, however said legal position has undergone a change after amendment in Section 9 of Act, through the Punjab Family Courts (Amendment) Act, 2015 (Act XI of 2015) w.e.f 18.03.2015, whereby certain manner and period for filing written statement has been introduced and the case of Maqsood Ahmad (Supra), which relates to position pertaining prior to the said amendment is no longer relevant and the principles laid down therein cannot be made applicable to the instant case and reliance on the same is misplaced. The said amendment for ready reference is reproduced below:- "In Section 9:
(a) for subsection (1), the following shall be substituted: (1) On the date fixed under section 8, the defendant shall appear before the Family Court and file the written statement, a list of witnesses and gist of evidence, and in case the written statement is not filed on that date, the Family Court may, for any sufficient reasons which prevented the defendant from submitting the written statement, allow the defendant to submit the written statement and other documents on the next date which shall not exceed fifteen days from that date."
(b) after subsection (5), the following subsection (5A) shall be inserted: "(5A) If the defendant fails to submit the written statement on or before the date under subsection (1), the defence of the defendant shall stand struck off and the Family Court shall decide the case under the law."
9. When confronted with the afore-referred provision and present position of law, learned counsel for the petitioner states that the counsel engaged by the petitioner to appear before the Family Court belonged to Mufassil area, who had wrongly advised the petitioner on the basis of afore- referred case-law that no specific time limit was provided by law to file written statement therefore the court would provide reasonable time to file the same which was 30 days, whereas when right was closed only 17 days had lapsed and further states that even if due to change in law the afore- said case-law was no longer applicable or holding the field, the court was still competent to extend time to file written statement and prays that another opportunity to file written statement may be provided to the petitioner in the interest of justice.
10. Although ignorance of law is no excuse and the petitioner should have been vigilant in pursuing his remedy, yet petitioner claims that he had been provided wrong legal advice, which was based on incorrect application of the judgment in Maqsood Ahmad's case (supra). Whether said ground can be treated as a sufficient reason to extend time to file written statement by invoking the power of the court under amended Section 9 of the Family Court Act, 1964, which enables the court to extend the time for filing written statement where sufficient reason has been shown for not filing the written statement within statutory time.
11. Question of providing further time to the defendant in a similar case came up for consideration before this Court in case titled Sajawal versus Judge Family Court, District Multan and another (2020 YLR 359), wherein right to file written statement had been was struck off on the ground that despite availing number of opportunities, petitioner had failed to file written statement within the statutory period. This court set aside the said order and provided opportunity to submit the same subject to cost while observing as under:- "2. After hearing the learned counsel for the petitioner and perusing the file, it is straightaway observed that the respondent filed a suit for maintenance allowance and dower on 31.5.2018 in which the petitioner appeared on 15.9.2018 whereafter on 23.10.2018, 3.12.2018 and 5.1.2019 the petitioner was given opportunities to submit the written statement but he could not submit the same on account of unavoidable circumstances. Under section 9(1) read with section 9(5A) of the West Pakistan Family Courts Act, 1964, a period of 15 days is provided for the said purpose.
However, if the petitioner could establish sufficient reasons which prevented him for filing the written statement, such time can be extended in the interest of justice. Learned counsel for the petitioner states that on two occasions the learned Presiding Officer was on leave and that he will file the written statement before the Family Court on the next date of hearing i.e. 5.4.2019 if so permitted by the Court against an appropriate cost.
3. In this view of the matter and keeping in view the valuable rights of the petitioner to defend himself before the Family Court and referring to Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 (Right to Fair Trial) prescribing right to defend as a fundamental right, I allow this writ petition, set-aside the order dated 6.2.2019 passed by the Family Court and permit the petitioner to submit written statement on 5.4.2019 subject to payment of cost Rs.5000/- to the respondent on the said date."
12. In the present case the claim of the petitioner is that he had engaged a lawyer from mufassil area to represent him and on his advice he was under the impression that at least 30 days' time would be provided to the petitioner to file written statement, therefore in the said circumstances seeks indulgence of this Court to take some lenient view in the matter despite the lapse of statutory period of 15 days provided to file written statement.
13. It is noteworthy to refer here that the Supreme Court and the High Court in cases titled Abdul Rauf and others versus Khurshid Ali and others (1992 SCMR 592), Ali Muhammad and others versus Qaisar Mehmood Shah and others (1991 SCMR 1114), Badrul Haque Khan versus The Election Tribunal, Dacca, etc. (PLD 1963 SC 704), Atta-Ur-Rehman and another versus Abdul Wahab and 13 others (2007 MLD 1603 Lahore) and Sajawal and others versus Muhammad Din and others (2000 CLC 267 Lahore) have taken lenient view in matters where the litigant had to suffer on account of counsel engaged from mufassil areas, and condoned fault on the said account relating to pleadings and other procedural matters requiring precision, which had been overlooked by the counsel. To further substantiate this position and for strengthening the aforementioned aspect of the matter it may be mentioned here that in the case of Abdul Rauf (supra), the Supreme Court had condoned the delay in filing appeal by observing that:- "12. We have given our anxious consideration to the arguments addressed on behalf of the appellants and the respondents and have perused the record.
This direct appeal is barred by 29 days. There is the affidavit of Khalid Javed, Advocate of Faisalabad, that he was under the impression that the judgment could be challenged in the Supreme Court within 60 days and that the mistake on his part was not deliberate. Since the Mufassil lawyer would not have known that a direct appeal lay in this case, we would condone the delay."
14. In view of the principles of law discussed in the afore-mentioned judgments where in matters relating to mufassil areas, courts have previously taken lenient view coupled with the assertion that the petitioner on advice of lawyer engaged from mufassil area had been under the impression that at least reasonable time of 30 days was available with him to file written statement, which had not yet lapsed and without further commenting upon the merits of the case in detail and in the interest of justice, instead of deciding the matter on technical grounds, it would be appropriate to provide one opportunity to the petitioner to file written statement to protect his valuable right to defend himself before the Family Court subject to payment of costs of Rs. 5000/-, which shall be paid by the petitioner to the other party in the trial court on production of copy of this order, where after the said court shall fix a date, on which date the petitioner shall file written statement and join further proceedings in the matter. In case of failure on the part of the petitioner to do the needful, the trial court will be at liberty to proceed further with the matter in accordance with law. The petition is allowed in the foregoing terms. However, it is made clear that as the order has been passed while dispensing with notice to the private respondents to avoid delay and to prevent them from incurring unnecessary expenses, if aggrieved they may file an application for resurrection the matter for decision afresh on its own merits.