1. This regular Second Appeal by Muhammad Ramzan is directed against the judgment and decree of Qazi Muhammad Dastgir, Additional District Judge, Lahore at Sheikhupura, dated the 23rd of December 1968, whereby he accepted the appeal of Mst. Khalida Perveen against the dismissal of her suit for dissolution of marriage by the Senior Civil Judge, Sheikhupura.
2. The facts giving rise to the present appeal, briefly stated, are as follows :- Mst. Khalida Perveen respondent was married to Muhammad Ramzan appellant in Sialkot about 2 1/2 years prior to the filing of the suit. Relations between them, however, became strained after about a year, of the marriage and the appellant abandoned her at her father's house in Sheikhupura. Mst. Khalida Perveen filed a suit for dissolution of marriage against Muhammad Ramzan appellant in the Court of the Senior Civil Judge, Sheikhupura, inter alia on the grounds of khuIa` cruelty, and association with women of ill repute. She also alleged that the appellant had already given her a verbal divorce and prayed that he should be restrained from proclaiming her to be his wife. Muhammad Ramzan defendant-appellant resisted the suit; denied all the allegations levelled against him by the plaintiff and pleaded that he had already obtained a decree of restitution of conjugal rights from a civil Court on 18th July 1966, and that in the presence of that decree, the suit for dissolution of marriage was not maintainable. He also challenged the territorial jurisdiction of the Senior Civil Judge, Sheikhupura, to try the suit. The following issues were framed by the trial Court, on the pleading of the parties :- (1)Whether this Court has jurisdiction to try the suit?
2. (2)Whether the suit is not maintainable in view of a decree dated 18-7-1966 as mentioned in the written statement?
3. (3)Whether the defendant treated the plaintiff with cruelty ?
4. (4)Whether the defendant associated with women of evil repute and leads an infamous life?
5. (5)Whether the plaintiff has already been divorced by the defendant?
6. (6)Whether the plaintiff is entitled to decree for dissolution of marriage on the grounds of khuld if so, on what terms?
7. (7)Relief.
3. The learned trial Judge decided that he had jurisdiction to try the suit and that the suit was maintainable notwithstanding the decree of restitution of Conjugal Rights obtained by the defendant-appellant. He however decided all the remaining issues against the plaintiff- respondent and dismissed her suit by his order dated 9th of December 1967, Mst. Khalida Perveen respondent filed an appeal against the dismissal of her suit in the Court of the District Judge, Sheikhupura. Qazi Muhammad Dastgir, the learned Additional District Judge, Sheikhupura, who heard the appeal, upheld the findings of the trial Court on all the issues except issue No, 3 relating to the allegation of cruelty and held that it was established from the evidence that Muhammad Ramzan defendant treated his wife Mst. Khalida Perveen with cruelty. As a result, he accepted her appeal and decreed her suit for dissolution of marriage, vide his order dated 23rd of December 1968. Hence the present Regular Second Appeal by Muhammad Ramzan.
4. The main ground urged on behalf of the appellant was that after the enforcement of the West Pakistan Family Courts Act, 1964 (hereinafter called the Act), in Sheikhupura District on the 21st of February 1967, only a Family Court established under section 3 the said Act could try the suit in question; that Malik Mushtaq Ahmad Senior Civil Judge, Sheikhupura, had no jurisdiction to hear or decide it and that his order dated 9-12-1957 was therefore, without jurisdiction. It was contended further that the learned Additional District Judge did not consider this aspect of the case and that his order also merited to be set aside.
8. It was however, brought to the notice of the learned counsel for the appellant that from the date of the enforcement of the Act in District Sheikhupura i,e, from the 21st of February 1967, all the Civil Judges in the District, were constituted Family Court Judges, by virtue of rule 3 of the Rules framed under the Act, which had been promulgated earlier, on 2-12-1965. As a result Malik Mushtaq Ahmad Senior Civil Judge, Sheikhupura, before whom the suit in question was pending, also became a Family Court Judge on the enforcement of the Act in Sheikhupura District on 21st of February 1967, and had, therefore, jurisdiction to hear the case, It was also pointed out to the learned counsel that since his sole contention was that the suit could be heard and disposed of only by a Family Court under the provisions of the Family Courts Act, 1964; his Regular Second Appeal under consideration was incompetent as no Second Appeal has been provided by section 14 of the said Act.
9. The learned counsel requested for time to prepare the case from this angle and the case was fixed for rehearing.
5. The position now taken up by Syed Abid Hussain the learned counsel for the appellant is, that although Malik Mushtaq Ahmed Senior Civil Judge, Sheikhupura, was constituted a Family Court Judge on 21-2-1967, he continued to treat the case as an ordinary civil suit and heard and decided it as a 'Civil Judge' and not in his capacity as a Family Court Judge. In support of this contention the learned counsel pointed out that the learned trial Judge disposed of the suit without complying with certain mandatory provisions of the Family Courts Act, 1964, and signed the judgment as 'Senior Civil Judge'.
10. He pointed out further that even the appeal before the District Judge was treated as if it was against the judgment of a 'Civil Judge' rather than that of a 'Judge family Court' which is indicated by the fact that throughout his judgment dated 23rd December 1968, the learned Additional District Judge mentioned the trial Court as the 'learned Civil Judge' and not as 'Judge Family Court'. He submitted further that even the Decree-Sheet indicates that the appeal was treated by the learned Additional District Judge as one against the judgment of an ordinary civil Court.
11. The learned counsel argued that since the case was heard by the trial Court as a 'Civil Judge' and it was treated all along as an ordinary civil case, and even the appeal was treated as a first appeal under the provisions of the C. P. C., therefore a Regular Second Appeal under section 100, C. P. C. would lie.
12. He contended next that even though the objection as to jurisdiction was not raised earlier it can be raised, for the first time, in the second appeal. For this contention he relied on Muhammad Amin v.
13. Jamshed Ali .
14. He urged further that where, in a civil case, the first appellate Court had no jurisdiction to entertain an appeal or where it entertained an appeal which was not provided for under the law, then a second appeal to the High Court, under section 103, C. P. C., is competent. For this contention he placed reliance on Bahadur v. Mirza Abdul Qayyum and another .
6. I also heard the learned counsel for the respondent. He submitted that the Courts below had jurisdiction to hear and decide the suit and the appeal respectively after enforcement of the Act in District Sheikhupura, and that their orders are not invalidated merely because the trial Court was wrongly described as the 'Senior Civil Judge' instead of a 'Family Court Judge' or that a wrong designation was given by the trial. Court under its judgment. He submitted that no Second Appeal lies under the Act against the impugned order and that if the appellant wanted to challenge the same on the ground of lack of jurisdiction or non-compliance with the provisions of the Act he could do so only by way of a petition under Article 98 of the Constitution.
7. I have considered the arguments advanced by both the learned counsel.
8. The questions that requite consideration first are-- (a)Whether or not the Courts below had the jurisdiction to hear and decide the suit in question, and (b)Whether the proceedings before the said Courts were governed by the provisions of the West Pakistan Family Courts Act, 1964 or by those of the Civil Procedure Code.
9. I first proceed to consider the question of jurisdiction. The suit for dissolution of marriage was filed by Mst. Khalida Perveen in the Court of the Senior Civil Judge, Sheikhupura on the 11 th of June 1965. The West Pakistan Family Courts Act (Act XXXV) was enacted on the 14th of July 1964. At first it was enforced in thirteen districts of the West Pakistan by a Notification on 2nd November 1965.
15. District Sheikhupura was not included in those districts. Subsequently, however, the Act was enforced in the remaining areas of the Province of West Pakistan including District Sheikhupura, vide Notification No, Integ. 10-31/64 (I), dated the 21st of February 1967.
16. Rules under section 26 of the Act had already been framed and promulgated on the 2nd of November 1965, and became applicable to District Sheikhupura on 21st February 1967, on the enforcement of the Act in that District. Rules Nos, 3, 6, and 7 (2) of the said Rules are relevant for the purpose of this case. They read as follows :- "3. Subject to the provisions of rule 7, the Courts of the District Judge, Additional District Judge and Civil Judge, shall be the Family Courts for the purposes of the Act.
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 reside or last 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.
17. 7 (2). Suits triable under the Act, other than those relating to the custody of children and for Guardianship, shall be instituted in, and be heard and tried by, the Court of the Civil Judge having jurisdiction as provided in rule 6, and where in any District there is no such Court, such suits shall be instituted in, and be heard and tried by, the Court of the District Judge or the Additional District1 2 Judge."
18. It shall be noticed that by virtue of rule 3 ibid all Civil Judges in the District (including Malik Mushtaq Ahmed, Senior Civil Judge), were constituted Family Courts under section 3 of the Act, and by virtue of rule 6 Malik Mushtaq Ahmed, Senior Civil Judge, Sheikhupura, was vested with the jurisdiction to hear and decide the suit in question.
19. Similarly all District Judges and Additional District Judges were also constituted 'Family Courts' under the Act and were empowered to try and dispose of suits and applications relating to the custody of children and for guardianship and also other suits triable under the Act, when there is no civil Court in the District, having jurisdiction under rule 6. They are also empowered, by virtue of section 14 (1) (b) of the Act, to hear appeals against the decision or decrees of Family Courts, where the latter are presided over by a Civil Judge or Senior Civil Judge.
20. Both, Malik Mushtaq Ahmed, Senior Civil Judge and Qazi Ghulam Dastgir, the learned Additional District Judge, there-fore, had the jurisdiction to hear and decide the suit and the appeal respectively.
21. 10.It may now considered as to whether the proceedings before the Family Courts are governed by the provisions of the Family Courts Act, 1964 or those of the C. P. C. As already mentioned Mst.
22. Khalida Perveen had filed her suit for dissolution of marriage in the Court of the Senior Civil Judge, Sheikhupura on 11-5-1965. At that time it was governed, like other suits, by the provisions of the C. P.
23. C. Subsequently however, when the suit was still pending in the said Court, the West Pakistan Family Courts Act, 1964, was enforced in District Sheikhupura.
24. The applicability of the provisions of the said Act, to pending cases was examined by the Supreme Court in Adnan Afzal v. Capt. Sher Afzal and their Lordships were pleased to hold that the provisions ofsaid Act are procedural in nature and are applicable to all pending cases relating to matters specified in the Schedule except suits or applications under the Guardians and Wards Act, 1890. (Ref : pp. 190 and 193-D of the above-mentioned reported authority). In Ahf Din v. Shaukat Ali the High Court of West Pakistan, after considering the language of subsections (4) and (5) of section 1 of the Act, expressed the view that the provisions of the Act have been made applicable to pending proceedings relating to matters specified in the Schedule (except proceeding under the Guardians and Wards Act) not only because they are procedural in nature but also by necessary intendment. Thus it is settled by the above-noted authorities that the provisions of the Family Courts Act, 1964 became applicable to the suit in question from the date of its enforcement in various Districts, including Sheikhupura. The learned counsel for the appellant also concedes this position.
25. 11.In this connection a question would also arise as to whether a civil Court, which has entertained a suit relating to matter specified in the Schedule to the Act, can proceed on to hear and decide it, as a pending case, even after the said Court is constituted a Family Court under section 3 of the Act by virtue of rule 3 of the Rules framed under section 26 thereof. This question came under consideration in Alif Din v. Shaukat Ali. In that case, while considering whether the pro-visions of the Family Courts Act, 1964 had retrospective effect and were applicable to pending cases, the provisions of section 5 were also considered, and it was observed by the learned Court as follows :- "Apart from stress on the exclusiveness of the jurisdiction, the three stages of the proceedings are dealt with separately i. e.-- (i)entertaining a matter; (ii)hearing a matter; and (iii)adjudicating a matter.
26. This provides sufficient scope for the proposition that if a matter has been entertained in another forum, on the coming into force of the Act if that matter has gone to the exclusive jurisdiction of a forum created by the Act, it shall be heard and adjudicated by the new forum."3 4 I am in respectful agreement with the above-mentioned observation and am of the view that as the suit filed by Mst. Khalida Perveen respondent had already been entertained by Malik Mushtaq Ahmed Senior Civil Judge, Sheikhupura and since the same learned Judge was constituted a Family Court under the Act, having exclusive jurisdiction not only to entertain the suit in question, but also to hear and decide it, he could continue to hear and adjudicate upon the same in that capacity i. e. as a Judge, Family Court.
12. The next question to be determined is whether a Second Appeal under section 100 of the C. P. C., against the decision of a Family Court is competent. It is pertinent to note that section 14 of the said Act, which deals with appeals from the orders made or decrees passed by a Family Court does not provide for a second appeal against any such decision or decree.
27. Again section 17 of the Act specifically excludes the application of the provisions of the C. P. C. to the proceedings under the Act. It will be useful to reproduce the relevant portion of this section for facility of reference :-
17. Provisions of Evidence Act and Code of Civil Procedure not to apply.--(1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872 and the Code of Civil Procedure, 1903, except sections 10 and 11 shall not apply to proceedings before any Family Court.
28. (2).....................................
29. The result is that as far as proceedings under the Family Courts Act, 1964 are concerned, besides other provisions of Code of Civil Procedure, the application of the provisions of section 100 of the C. P. C. has also been expressly excluded.
13. It will be useful at this stage to reproduce the relevant portion of section 100 of the C. P. C., which runs as follows :- 103.--(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, on any of the following grounds, namely :-- (a)..........................................
30. (b).........................................
31. (c)........................................
(2) ........................................
32. A plain reading of the section shows that a second appeal to the High Court under section 100, C. P.
33. C., would lie only if f is not expressly excluded either by any other provision of the C. P. C. itself or by any other law, for the time being in force. It has already been seen above that section 17 of the West Pakistan Family Courts Act, 1964, has expressly excluded the application of almost all the provisions of the C. P. C.. including section 100 of the Code, to the proceeding under the said Act. That section cannot therefore be invoked in relation to proceedings under the West Pakistan Family Courts Act, 1964; and a Second Appeal under section 10), C. P. C. against an order of the Judge Family Court ; is not at all competent.
14. 1 now proceed to consider the two authorities cited by the learned counsel for the appellant i. e.
34. Muhammad Amin v. Jainshed All and Bahadur v. Mirza Abdul Qayywn and another.
35. I respectfully agree with the principle enunciated by these two authorities namely that the question of jurisdiction, can be raised for the first time in a Second Appeal and that where, in a civil case, the first appellate Court had no jurisdiction to entertain an appeal or where it entertained an appeal which was not provided for in law, then a Second Appeal to the High Court, under section 100 of the Civil Procedure Code is competent.
36. I am afraid, however that the authorities in question do not apply to the facts of the present case.
37. It shall be noticed that both the authorities proceed on the assumption that the trial Court or the first appellate Court had no jurisdiction to try the suit or to hear the appeal, and that the order passed by them are coram non judice. In the present case, however, as has already been held in paragraph No, 9 above, both the Courts below had the jurisdiction to hear and decide the matter before them and their orders are valid and lawful. The principle enunciated by the above-noted authorities is, therefore, not attracted to the present case.
38. Again it is pertinent to note that the matters dealt with in the two cited authorities are such to which the provisions of the Civil Procedure Code are applicable and in both the cases a Second Appeal, governed by the provisions of section 100 of the Civil Procedure Code, lay to the High Court.
39. But as shown in paragraph No, 13 above, provisions of the Civil Procedure Code are not applicable to proceedings under the Act and section 100 of the Civil Procedure Code cannot be invoked for filing a Second Appeal in the High Court against the order of a Family Court.
40. The first case cited by the learned counsel for the appellant, i,e, PLD 1967 Lah. 856, relates to ejectment proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereafter called the Ordinance).
41. It is now settled that although the Rent Controller is not could, in every case, to follow the provisions of the C. P. C. yet the application of its provisions to proceedings under the said Ordinance is not specifically excluded. (Ref: Khadim Mohyud-Din and another v. Ch. Rehmat Ali Nagara and another . The said provisions have been held by the High Court to be applicable to such proceedings, by virtue of section 141 of the C. P. C.---See Sayed Nafis Ahmad Zaidi v. S. M. Hussain .
42. However, only the procedural provisions of the Code are applicable to the proceedings under the Ordinance and not the substantive provisions, like those creating the right of appeal. (Ref : Din Muhammad v. Hidayat Hussain ). Provisions with regard to appeals against the orders of the Rent Controller has been specifically made in section 15 of the Ordinance and a provision for a Second Appeal to the High Court is contained in subsection (4) of the said section, read with the "explanation appended to it.
43. These provisions were examined by the Supreme Court of Pakistan in Muhammad Ikhlas v.
44. Muhammad Ismail and it was held that a Second Appeal to the High Court, under the provisions of the West Pakistan Urban Rent Restriction Ordi-nance, 1959 is subject to the terms of section 100 of the Civil Procedure Code as well as the other provisions respecting appeals contained in that Code and in the First Schedule thereto. It was held further that section 100 of the C. P. C. is to be read with section 101 (which provides that no second appeal shall lie except on the grounds mentioned in section 100). The same view was expressed by the High Court of West Pakistan in Muhammad Naeem v. Sher Ali the relevant portion of which may be reproduced here with advantage :- "The material part of the explanation to subsection (4) lays down that an appeal from the appellate order shall be heard as an appeal under section 100 of the Code of Civil Procedure. All these four subsections have to be read together and from such a reading it is plain that the powers of the District Judge as an Appellate Authority under sub-clause (b) of subsection (1) are restricted to the clauses of cases stated in the notification issued in pursuance of subsection (1) (a) and the further powers of the High Court in second appeal against the judgment of the Appellate Authority are limited to questions cf law arising therein just as in the case of a second appeal under section 100 of the Civil Procedure Code."
45. (The underlining is mine).
46. The second authority referred to by the learned counsel (i,e, PLD 1969 Lah. 636), relates to a suit for possession through pre-emption, which is governed by the provisions of the C. P. C. In that case a consent-decree was passed. The plaintiff was required to deposit the full amount of the preemption money by a certain date, failing which the suit was to be dismissed. The plaintiff, however, failed to deposit the money In time. The suit was consequently dismissed by the trial Court by its order dated 25-1-1963 for non-compliance of the condition on which the decree was passed. The plaintiff filed an appeal before the District Judge, who reversed the above-noted order5 6 7 8 9 of the trial Court. The defendant-vendee went up to the High Court in Second Appeal under section 100, C. P. C. and contended, inter alia, that the order of the trial Court dated 25-1-1963, which related to payment or nonpayment of pre-emption money in compliance with the terms of the decree, was not appealable under section 104 of the Civil Procedure Code read with Order XLIII, rule 1 of the Civil Procedure Code; that Abdul Qayyum respondent's appeal before the Additional District Judge was not competent and that the order of that learned Court was, therefore, corain non judice. In reply the learned counsel for the respondent urged that if it be assumed that the first appeal before the learned Additional District Judge was not competent and his order was without jurisdiction, then the appellant's second appeal under section 100, C. P. C. was also not competent.
47. On these facts the learned Court held as follows:- "To the last contention of the counsel for the respondent the short reply is that once it is held that the learned Additional District Judge had no jurisdiction to entertain the appeal, as he did not have in the instant case, then in any case his order will be liable to be set aside in revision under section 115, C. P. C. It is not disputed that there is nothing to prevent this Court from treating this appeal as revision against the impugned order which being wholly without jurisdiction must be set aside."
48. It shall be noticed that in the last mentioned case even though the proceedings were governed by the Civil Procedure Code yet it was held that the order of the First Appellate Court if found to be without jurisdiction, could be set aside by treating the Second Appeal as a Revision under section 115, C. P. C. But since (as already shown above), the application of the provision of the Civil Procedure Code to proceedings under the Family Courts Act has been specifically excluded, section 115, C. P. C. cannot be invoked in the present case and the authority in question is, therefore, not applicable for this reason also.
15. I now proceed to consider the next contention of the learned counsel for the appellant.
49. He submitted that both Malik Mushtaq Ahmed, Senior Civil Judge, as well as the learned Additional District Judge, Sheikhupura had disposed of the suit and the appeal, respec-tively as an ordinary civil suit and appeal. In support of this plea he pointed out that Malik Mushtaq Ahmed, the trial Judge had given his designation under his signatures as the `Senior Civil Judge, Sheikhupura' and not 'Judge, Family Court, Sheikhupura' and further that the learned Additional District Judge had mentioned the trial Court in his order as well as the decree, as the 'Civil Judge' and not the 'Judge, Family Court.' He argued that since the matter had, all along, been treated as one governed by the provisions of the Civil Procedure Code this Court too should treat it as such and consider the present appeal as a Second Appeal under section 100 of the Code.
50. This argument has no force whatsoever. The validity of a Judgment or an order, in fact, turns upon the question whether the Court passing it had jurisdiction to pass it and not on the fact that the Court in question described itself wrongly or put an incorrect designation under its orders. If the Court passing an order has, in fact, the jurisdiction to pass the same, it would not become invalid merely because the Court gave an incorrect designation under it.
51. This view is supported by the observation of the Supreme Court of Pakistan in Piao Gul v. The State In that case one Piao Gul was tried and convicted by Political Agent/ District Magistrate, Khyber Agency, for offences under sec-tion 8(a) and (b) of the North-West Frontier Province Corps Law, 1941. Under the relevant law, case was triable by a Court of Sessions Judge. The Political Agent of Khyber Agency had also the powers of the Sessions Judge for the said Agency. Mr. Fareedullah Shah, District Magistrate who was also the Political Agent of that area, tried the case. Throughout the proceedings, except in the charge, the designation put by Mr. Fareedullah Shah under his signature was P. A. and D. M. i. e. (Political Agent and District Magistrate). The order passed by him was attacked on the ground that it had been passed by him as District Magistrate and not as a Sessions Judge, on considering this question the Supreme Court was pleased to observe that :- "Postulating that the trial of offences under section 8 of the North-West Frontier Province Corps Law,10 1941, could only be competently held before a Court of Session, and the Court of Session for the Khyber Agency is the Court of the Political Agent, it must follow that the trial or the present appellant was conducted before Mr. Faridullah Shah in his capacity as a Court of Session under the Criminal Procedure Code, 1898 as applied to the Khyber Agency. There was no commitment. The trial was conducted by the warrant procedure. In that view of the matter, the solitary misdescription in the charge i,e, where the Court described himself as District Magistrate would be without effect upon the legality of the trial. It would be a misdescription which was demonstrably incorrect, falling within the maxim falsa demonstratio non nocet. It would therefore be without effect upon the validity of the proceedings provided that the person conducting those proceedings possessed in himself the capacity to do so. Mr. Faridullah Shah as Political Agent possessed the capacity of a Court of Session to try the charges against Piao Gul, and to impose a sentence of 14 years' imprisonment."
52. The same view was taken in Muhammad Sharif v. The Crown and High Court Bar Association v.
53. Emperor.
54. 16.Respectfully following the above-noted view I hold that the judgment of the learned trial Judge, in the present case, is not invalidated merely because he signed it as 'Senior Civil Judge' instead of 'Judge, Family Court', for, as already explained, on the enforcement of the Act in Sheikhupura, he had been constituted a Family Court Judge and was vested with the jurisdiction to pass the order in question.
55. Similarly the judgment of Qazi Muhammad Dastgir, the learned Additional District Judge is not invalidated merely because he wrongly mentioned the designation of the trial Court as the 'civil Court'.
56. 17.As already held above, the present appeal under section 100, C. P. C. is wholly incompetent. If aggrieved by the non-compliance, with some provisions of the Act by the Rent Controller by the lack of jurisdiction of the two Courts below, the remedy open to the appellant was to challenge their orders by a writ petition under Article 98 of the Constitution.
57. 18.In view of the above discussion the present appeal is dismissed. PLD 1967 Lah. 856 PLD 1969 Lah. 636 PLD 1969 SC 187 PLD 1969 Pesh. 62 PLD 1955 SC 459 PLD 1964 Lah. 536 PLD 1968 Lah. 207 PLD 1963 SC 466 PLD 1963 Quetta 8 PLD 1960 SC 307 PLD 1956 FC 34 AIR 1941 Lah 324