' Mst. Razia Naz respondent filed a suit for dissolution of marriage against the petitioner. He was duly served and appeared before the learned Judge Family Court on 16th January, 1983. On his request the case was adjourned to 29th January, 1983 for filing the written statement. However, on this date he again sought an adjournment which was allowed, the case fixed for 9th February, 1983 and the petitioner burdened with Rs, 10 as costs. On 9th February, 1983 as well, the petitioner failed to file the written statement and again requested for adjournment. His request was granted and Rs, 20 as costs awarded to the respondent. The case was then adjourned to 17th February, 1983. On which date the Presiding Officer was on leave, the written statement was not filed and the case was fixed for 21st February, 1983 as the next date of hearing, for submission of the written statement.
On which date the petitioner's counsel entered appearance and stated at the bar that he did not want to prosecute the case. In the proceedings dated 28th February, 1983, recorded by the learned Judge Family Court he observed that thrice the petitioner failed to file the written statement and, therefore, his defence was struck off. Thereafter the case was fixed for 10th March, 1983 for recording the ex parte evidence of the respondent as her counsel was not available on this date, the Court postponed the hearing to 14th March, 1983.
2. On the said date the Presiding Officer proceeded on leave and the suit was adjourned to 31st March, 1983 by the Reader of the Court. When it came up for hearing before the learned Judge on the said date, Ch. Muhammad Majeed Advocate appeared for the petitioner and filed Memorandum of Appearance. The learned Judge for the first time noticed, the presence of the written statement on the file, but it neither bore the stamp of the Court nor the initial of the Presiding Officer. However, on the request of the petitioner's counsel, that he wanted to move an application for setting aside the order dated 28th February, 1983, the learned Judge Family Court granted him the adjournment for 7th April, 1983. The respondent did file such an application on this date, wherein he averred that the petitioner's parents had agreed to compromise and withdraw the suit ; it was held out to him that the respondent's 'rukhsati' would take place in the month of April. That on 30th March, 1983 the petitioner went to the house of her parents and it then transpired that a fraud had been practised on him. It was pleaded that the petitioner's non-appearance, on 28th February, 1983 was not intentional. This application was rejected by the learned Family Court, by its order, dated 6th June, 1983. It operative part is reproduced below :- "It is evident from the impugned order that on 28th February, 1983, the learned counsel for the defendant was present and the defence of the defendant was struck off for not filing written statement on different dates. Ex parte proceedings were not taken against him. Moreover, the defendant himself admitted that he came to know of the impugned order on 30th March, 1983 and he had moved this application on 7th April, 1983, which is clearly time-barred. He had not moved application for condonation of delay and he had not stated any reasons for this delay in his application. Moreover, he had not signed the application and he had not verified the contents on oath. A separate affidavit has been filed."
3. After rejection of this application, the learned Family Court recorded the respondent's evidence on 9th June, 1983 and on the basis thereof dissolved the marriage. The petitioner has now come to this Court for removal, through judicial review, of the orders passed by the Court below.
4. I have heard the learned counsel for the parties and examined the available record. The learned counsel for the petitioner argued that on 17th February, 1983 the learned Presiding Officer was on leave and the petitioner filed his written statement with the Reader of the Court, who adjourned the case to 28th February, 1983. In his submission, on the said adjourned date, when the case was taken up for hearing by the learned Judge Family Court, he failed to take note of the written statement and wrongly struck off the petitioner's defence. Continuing his submission, the learned counsel contended that Order VIII, rule 10, C. P. C. Does not apply to the proceedings under the Family Courts Act and that, therefore, the learned trial Court acted illegally in striking off the petitioner's defence on the ground of non-filing of the written statement. It was also urged that the petitioner's counsel never appeared before the Family Court on 28th February, 1983 and that the mention of his presence in the proceedings recorded on the trial Court's file on this date, was the result of some fraud on the Court, as some other counsel was made to appear for the petitioner at the instance of the respondent. He also assailed the rejection of his application for setting aside the order, dated 28th February, 1983 and urged that as this order is void, the decree passed in the respondent's favour, on the strength of the void order, is also liable to be quashed. His other submission was, that he was not permitted to participate in the proceedings and thus, evidence produced by the respondent could not be subjected to cross-examine.
5. It is not disputed that the petitioner failed to file written statement on 29th January, 1983 and 9th February, 1983. He claims to have tendered it to the Reader of the Court on 17th February, 1983 who according to him in the absence of the Presiding Officer adjourned the case to the next date of hearing. In the parawise comments offered by the learned Judge Family Court, it is specifically stated that on account of his being on leave, on 17th February, 1983 the case was adjourned to the next date, by the learned Senior Civil Judge and not by the Reader and that the written statement was smuggled into the file by the petitioner in connivance with the subordinate staff of the Court. It is noteworthy that in the order, dated 17th February, 1983, it is clearly stated that the written statement was not filed. Seemingly the petitioner has raised a false plea as on 17th February, 1983, further adjournment was granted by the learned Senior Civil Judge and not by the Reader of the Court. The stand taken up by the petitioner does not at all finds support from the record. I am unable to accept his contention that on 28th February, 1983 when the petitioner's defence was struck off the written statement was already on the record. There are indications that it appeared on the file after this date. It is also difficult to believe that on 28th February, 1983, some Advocate, unauthorisedly represented the petitioner before the Family Court, at the instance of the respondent.
6. As regards the contention that the petitioner's defence could not have been struck off, it is to be seen that despite having been given opportunities, he did not file the written statement. It is true, that except sections 10 and 11, C. P. C., which have been made applicable to a Family Court, under section 17 of the Act, the rest of the C. P. C. On its own force, does not apply to the proceedings before it. It is, however, to be kept in mind that the Family Courts Act, does not provide for every conceivable eventuality and unforeseen circumstance. Though it is a forum of limited jurisdiction yet it has to regulate its own proceedings. A situation may crop up, before a Family Court, that a defendant persistently defaults in submitting his written statement and acts contumaciously, as happened in the instant case. Will the Family Court be powerless to proceed against such a litigant ? If the Court is held to be denuded of authority, to pass a punitive order against such a defaulter that would result in paralising its function. It must be remembered that the Family Courts Act has been enacted with the object of expeditious disposal of the disputes relating to the family affairs.
Thus, for the orderly dispensation of justice under the Act, in the case of a contumacious default of a defendant, to file the written statement, the Family Court will be well within its authority to make an order, in the nature of on envisaged by Order VIII, Rule 10, C. P. C. And deprive him of his right to file the written statement. I think that the learned trial Court proceeded against the petitioner on a similar line and by using the expression as to the striking of his defence, it simple meant to take away his right of filing written statement. Anyhow, even if there is some betrayal of over-stopping by the trial Court, in view of the conduct of the petitioner I do not feel persuaded in this behalf, to strike down the order dated 28th February, 1983.
7. Admittedly the order dated 28th February, 1983 is a composite order and embodies two elements, firstly striking off the petitioner' evidence and secondly recording of respondent's ex parte evidence. Undoubtedly, on this date the petitioner was absent and as borne out from the record his counsel stated at the bar that he did not want to peruse the case. It being so, the order regarding the recording of the respondent's evidence in the petitioner's absence was rightly called for. In other words he was proceeded against ex parte. In disposing of his application for recalling o the order, dated 28th February, 1983, the learned Family Court fell I error to hold that the ex parte proceedings had not been taken against him. In the face of the counsel's statement at the bar, no other proceedings could have been conducted against him.
8. The petitioner's application for setting aside the order, dated 28th February, 1983 was accompanied by his duly sworn affidavit. Even if the application was not signed by him, that was merely an irregularity, which could be cured by obtaining his signatures thereon. It could not have been rejected on this score. In this view of the matter, the order, dated 6th June, 1983 cannot be sustained, but its removal will not serve any useful purpose, for, in view of my earlier observation, the petitioner has lost his right to file the written statement. However, he has every right to participate in the ex parte proceedings, at any stage and cross-examine the respondent's witnesses, even without getting the order dated 28th February, 1983 set aside. This right, as argued by his learned counsel was denied to him. In this respect as well, the learned Family Court acted illegally. The petitioner should have been permitted to test the veracity of the respondent's ex parte evidence through cross-examination. Without affording him this right, the ex parte evidence, cannot be used against the petitioner. The judgment and decree dated 4th July, 1983 are, therefore liable to be quashed.
9. For the foregoing reasons, this writ petition is allowed to the extent that the judgment and decree dated 4th July, 1983 are declared to have been passed without lawful authority. The respondent's ex parte evidence shall be recorded afresh and an opportunity given to the petitioner to cross- examine her witnesses. The suit shall be decided in accordance with law, on the basis of the said evidence. Accordingly the case is sent back to the learned Family Court. It is assigned to Mr. Allah Bakhsh Ranjha, the learned Judge Family Court, Kasur, who shall dispose it of expeditiously, preferably within a period of four months. The parties are left to bear their own costs and directed to appear before him on 30th October, 1983.