1. ' By this Constitutional Petition, the petitioner, Mst. Akhtar Begum has sought abashment of two orders, one passed by 1st Family Judge and XIth Senior Civil Judge, Karachi, dated 24-11-1980 and another passed by lInd Additional District Judge, Karachi, dated 19-1-1983.
2. ' The aforesaid orders were passed in the following background. The petitioner's case is that her son, Basharat Hussain Siddiqui was married with Mst. Gul Naz, daughter of Mst. Jamila Begum, respondent No,3 and two sons, Saquib and Asim aged 13 and 12 years, respectively at the time of filing the petition, were born of the said wedlock. Both the parents of the said boys, died, Basharat Huss'ain on 18-11-1970 and Mst. Gul Naz on 15-1-1971. Since their death, the aforementioned boys been living with the respondent No,3, their maternal-grandmother. On or about 17-2-1971, the petitioner filed a family suit under section 25, Guardians and Wards Act, 1890 praying for custody of the aforesaid boys. The suit was, however, dismissed in default by order, dated 19-2-1977. The application moved for restoration of the suit also met the same fate, as that too was dismissed on 23-1-1979 owing to absence of the petitioner and her counsel. Once again the petitioner moved 'another application in an attempt to have the first mentioned application for restoration of the suit, restored but that application was also rejected by order, dated 24-11-1980. Aggrieved by the latest order of rejection of the application, the petitioner preferred appeal which also failed vide order of the lInd Additional District Judge, dated 19-1-1983.
3. ' After hearing the learned counsel for the parcels, the petition was dismissed by short order, dated 8-4-1984 for reasons to be recorded separately. Following are the reasons in support of the short order.
4. ' The learned counsel for the appellant made the following submissions:
(1) Relying on the case reported as. Ahmed Ali v. Registrar, Co-operative Societies PLD 1971 Kar. 182, it was submitted that the ratio decided of the said case is applicable in the instant case.
(2) Since the cause of action was continuing, the second application for restoration of the first application was legally maintainable.
(3) In view of section 20 of the West Pakistan General Clauses Act 1956, the Family Court was competent to recall its order dismissing the first application for restoration of the suit.
5. ' Taking up the first argument of the learned counsel, it may be stated that in, the reported case an application under Order IX, rule 9, C.P.C. was itself dismissed in/default. Therefore, another application also under Order IX, rule 9, was made",for restoration of the first mentioned application trial court, however, dismissed, the econd application as not maintainable.^ In revision filed, before the High Court it was held: "The cases we have referred to above and the cases which have been discussed in Muhammad RabnaWaz Y.. Muhammad Sadiq PLD 1966 B.J. 27 show judicial consequence in favour of the view that a second application under Order IX for restoration of a previously dismissed application under the same provisions would lie, either under Order IX itself or under section 151, C.P.C. and absence in the Limitation Act of express provision for period of limitation for such applications should not stand as a bar to deprive a party of its remedy which is not expressly prohibited by the.
6. Code of Civil Procedure or by any other statute."
7. ' In the opinion of the learned counsel for the petitioner, the above reported authorities applicable in the instant case inasmuch as that as in the reported case, the absence of limitation period for the second application in rule 12 of West Pakistan Family Courts Rules 1965, in the instant case should also not operate as a bar to its maintainability, as the same could be filed either under Order IX or section 151, C.P.C. While advancing this argument, the learned counsel seems to have overlooked the provisions contained in sections 5 and 17 of the West Pakistan Family Courts Act, 1964. According to section 5 jurisdiction of Family Court extends to the matters specified in the Schedule to the Act. Since custody of children and guardianship find mention in the Schedule, Family Court has exclusive jurisdiction to entertain and adjudicate upon such matters, Again, as provided in section 17 of the said Act, application of the provisions of Civil Procedure Code excepting sections 10 and 11 is expressly barred in the proceedings before a Family Court. Apart from above, specific provision is available in the Family Courts Rules, 1965 for meeting a situation like the one that has arisen in the present case. In this connection, reference may be made to sub- rule (2) of rule 12 of the Rules. It reads as under:-- "(2) the Court may restore a suit dismissed in default on sufficient cause shown, on application made to it within thirty days of the dismissal in default."
8. ' On the basis of the above sub-rule, the learned counsel for the petitioner tried to build an argument that the said sub-rule being analogous to the Order IX, rule 9, C.P.C. the dictum laid down in the case of Ahmed All referred to above would be attracted and the second application would be maintainable. I am afraid I am not impressed by this argument. Apart from the fact that application. of C.P.C. is barred in the proceedings before Family Court, an express provision in the shape of sub-rule (2) of rule 12 of the Family Courts Rules has been made to meet the contingency of dismissal of the suit in default by Family Court. In absence of a provision in the Family Courts Rules to save the application for restoration of the suit from being dismissed in default, it would not be permissible to have recourse to the provisions of the C.P.C. indirectly, by seeking in aid the precedent cases involving the interpretation of the said provision. It would be appreciated that the exclusion of the provisions of C.P.C, from the area occupied by Family Courts is not without purpose. In order to know the intention the framers of the Family Courts Act, 1964 reference may be made to the preamble of the Act which is always considered as key to open the mind of the legislature. The preamble reads as follows:-- "Preamble-- Whereas it is expedient 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;"
9. It is clear from the language of the preamble that the idea of enactment of Family Courts Act was to accelerate the settlement and disposal of the disputes falling within the ambit of the said Act.
10. That B is why the complex machinery provided in the Civil Procedure Code has also been avoided by excluding its applicability for the cases under the said Act. The reliance of the learned counsel for the petitioner on the case of Khizar Hayat Khan Tiwana v. Zainab Begum PLD 1967 SC 402 is also of no assistance to him for the simple reason that in that case the second application was held competent as it was not only based on additional grounds but also was made within time. The view taken in that case was that cause of action being continuing, so long the dispute with regard to guardianship has not been finally resolved, it is open to the parties to make applications provided they are not barred by limitation. In the instant case the second application was for restoration of the first application dismissed in default which was filed for restoration of the family suit dismissed in default. Thus the second application was neither a fresh application based on additional grounds nor was it made within 30 days of the dismissal of the suit as prescribed by rule 12(2) of the Family Courts Rules, 1965. Accordingly, the aforementioned precedent case is not helpful to the petitioner.
11. ' As for the next contention of the learned counsel for the petitioner that the cause of action being continuing, the second application was maintainable, it has been pointed above that the parties concerned can make such application subject to two conditions firstly, the second application is based on additional grounds and secondly it is not barred by limitation. Somehow, these conditions are not satisfied in the instant case and, therefore, second application was not maintainable.
12. As regards his third submission that in view of section 20, General Clauses Act, 1956, the Family Court was competent to recall its earlier order dismissing the first application for restoration of the suit, suffice it to say that the earlier order can, of course, be rescinded but before it has been acted upon and before it has given rise to rights and liabilities. In the instant case as soon as the first application was dismissed in default valuable rights accrued to the other party and, therefore, if the order was recalled, it could not be without detriment to the other party's rights. This being the position, the Family Court was left with no power to recall that order on the above ground.
13. ' In view of what has been stated above, the petition has no force and, therefore, it was dismissed as mentioned above.