' Facts necessary for the disposal of this petition, briefly stated, are that Mst. Ansar Fatima and her minor son Shamsher Hussain Shah, respondents Nos. 1 and 2 herein brought a suit for maintenance allowance against the petitioner on 2-6-1982. They also claimed past maintenance from July, 1979.
Petitioner contested the suit on the ground, inter alia, that he had divorced Mst. Ansaar Fatima respondent No, 1 on 10-9-1981 and for that reason, she was not entitled to any maintenance.
2. Learned Judge, Family Court, Gujrat by his judgment, dated 20-11-1984 allowed maintenance to the minor child at the rate of Rs, 600 per month from August, 1979 till he attains majority.
Respondent No, 1 was, however, awarded maintenance from August, 1979 upto 10-9-1981 i,e, the date of the divorce and also for the period of Iddat at the rate of Rs, 600 per month.
3. Petitioner filed an appeal to challenge the aforementioned judgment and decree of the learned trial Court. An objection was raised on behalf of the respondents that the subject-matter of the appeal exceeded the pecuniary jurisdiction of the learned Additional District Judge who was seized of the appeal. Learned Appellate Court worked out the total amount of past maintenance payable to the respondents at Rs, 31,800. Relying upon section AO of the Court Fees Act read with section 8 of the Suits Valuation Act. Learned Additional District Judge found that the value of the subject- matter for the purpose of jurisdiction was Rs, 72,000 which is ten times of one year's maintenance allowance of the minor. He, therefore, held that the value of the appeal exceeded his pecuniary jurisdiction which was limited to Rs, 50,000. Learned Additional District Judge also observed that keeping in view the amount of the past and future maintenance allowed to the respondents, appellant was liable to pay the court-fee according to section 7 of the Court Fees Act. However, in view of his finding that the subject-matter of the appeal was beyond his pecuniary jurisdiction, learned Additional District Judge returned the memorandum of appeal to the petitioner for its presentation to High Court. This judgment has been brought under challenge in the present constitutional petition.
4. Learned counsel appearing for respondents Nos. 1 and 2 raised a preliminary objection that the present petition has been filed by the petitioner's mother acting as the petitioner's special attorney although she had no valid power-of-attorney in her favour. Learned counsel for the petitioner has today placed on record duly executed and attested special power-of-attorney in favour of the petitioner's mother. By this deed, petitioner has ratified and confirmed all acts and deeds done by his said attorney. Confronted with this document, learned counsel for the petitioner has not pressed his objection.
5.The only point which the learned counsel for the petitioner has urged in support of this petition is that the appeal filed by the petitioner against the judgment and decree of the Family Court was competent before the learned Additional District Judge, irrespective of the value of the subject- matter calculated in terms of money. According to the learned counsel, decisions of the Family Courts are appealable under section 14 of the West Pakistan Family Courts Act which also provides the forum for appeals. This section is a self-contained provision which overrides the provisions of other laws on the subject such as Suits Valuation Act and the West Pakistan Civil Courts Ordinance.
He has particularly referred to the non obstante clause with which section 14 opens.
6. In order to appreciate the contention of the learned counsel for the petitioner, it will be useful to refer to the relevant portion of section 14 of the West Pakistan Family Courts Act which is reproduced hereunder :- "(14)(i) Notwithstanding anything provided in any other law for the time being in force, a decision given or 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 any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge ; and
(b) to the District Court, in any other case."
7. The afore quoted provision in its enacting part provides that a decision or a decree of a Family Court presided over by a District Judge or an ' Additional District Judge is appealable to the High Court and in every other case, appeal lies to the District Judge. Operative part of this provision is preceded by the expression "notwithstanding anything B provided in any other law for the time being in force" which expression is commonly known as non obstade clause'.. The expression 'non obstante' means 'notwithstanding' or 'in spite of'. Effect of this precise expression used in section 14 was examined in Zaibun Nisa v. Mohammad Mozammil (1), where the question was whether the appeal against decree or decision of a Family Court in a guardianship matter lies to District Court or to High Court. It was held that "the clear effect of these words is to exclude any provisions of the Guardians and Wards Act which may be contrary to section 14". It was, therefore, ruled that even in a matter under the Guardians and Wards Act, if the Presiding Officer of the Family Court is not a District Judge or a Judge of equivalent rank, appeal against his decree or decision shall lie to the District Court and not to the High Court. This view was approved by the Supreme Court of Pakistan in Sakhawat Ali and another v. Mst. Shui Khelay (2).
' Effect of non obstante clause was considered by this Court in Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co. Ltd. And another (3), wherein it was held that this clause "is used in a provision to indicate that the provision should prevail despite anything to the contrary in any provision. No doubt, one of the objects is to indicate that despite any repugnancy between the provisions containing a "non obstante" clause and any other provision, the former should prevail."
(1) PLD 1972 Kar. 401 (2) PLD 1981 SC 454
(3) PLD 1979 Lab. 603
8. Object of the opening words occurring in section 14 clearly was to exclude the application of Suits Valuation Act which relates to the determination of the value of a suit for the purpose of jurisdiction and the West Pakistan Civil Courts Ordinance (II of 1962), section 18 whereof' determines the forum of the appeal. Relevant portion of section 18 of West Pakistan Civil Courts Ordinance reads as follows :- "(18)(1) .Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie-
(a) to the High Court if the value of the original suit in which the decree or order was made exceeds fifty thousand rupees ; and
(b) to the District Judge in any other case."
9. It appears that the learned Additional District Judge worked out the value of the subject-matter with reference to the provisions of. The Suits Valuation Act and he had in mind section 18 of the West Pakistan Civil Courts Ordinance where under pecuniary jurisdiction of the District Judge/Additional District Judge for the purpose of appeal was limited to Rs, 50,000 when he held "the subject-matter of this appeal regarding the future maintenance comes to. Rs, 72,000 which is not within the D pecuniary jurisdiction of this Court." In taking this view learned Additional District Judge did not consider the overriding nature of the provisions of section 14 which take effect despite the provisions in any other law. Learned Additional District Judge did not appreciated that the Family Court constituted under section 3 of the West Pakistan Family Courts Act are not ordinary Courts and their jurisdiction is not limited by the aforesaid Civil Courts Ordinance. Refer PLD 1968 Kar.
650.
In view of the legal position aforementioned, it is held that the learned Additional District Judge had the jurisdiction to hear the appeal filed by the petitioner. His jurisdiction was not affected by any pecuniary limits. Results, therefore, is that this petition is allowed, impugned order of the learned Additional District Judge is set aside and it is E directed that the learned Additional District Judge shall hear the petitioner's appeal and decide it on merits according to law. It is further ordered that the matter agitated in the appeal being one of maintenance, appeal shall be decided within a period of three months.