' This is a Constitutional Petition filed under Article 9 of the Provisional Constitutional Order, 1981 read with Article 199 (wrongly stated as Article 191) of the Constitution of Pakistan, 1973.
2. The petitioner filed Family Suit No.1057 of 1982 against respondent No,1 for Restitution of Conjugal Rights. A counter-suit for Dissolution of Marriage being Family Suit No.1741 of 1982 was filed by respondent No.1 against the petitioner in the same Court. Both the suits were consolidated on the application dated 29-11-1982 moved by respondent No.l. The evidence of respondent No.1 was recorded on 27-10-1983 by the trial Court and the matter was adjourned for further evidence to be produced by respondent No.1. On 17-4-1984 respondent No.1 brought her witnesses for evidence whose production was objected to by the petitioner through an application under section 7(2) of the Family Courts Act, as the list of witnesses submitted by respondent No.1 alongwith the plaint was not in conformity with law. Objections and counter-objections were filed by respondent No.1 and the petitioner to the said application, respectively which was dismissed by the trial Court by its order dated 12-9-1984, whereby respondent No.1 was directed to give full details of the witnesses cited by her in the list of witnesses within a week. The petitioner being aggrieved by that order filed an appeal in the Court of 2nd Additional District and Sessions Judge, Karachi being Family Appeal No.147/1984 which was also dismissed by his order dated 27-9-1984. The petitioner thereupon has filed this petition.
3. Mr Rehanul Hassan Farooqui, learned counsel for the petitioner has raised two-fold contentions: firstly, that the order dated 27-9-1984 passed by the learned Additional District and Sessions Judge, Karachi holding the appeal against an interlocutory order as not maintainable under section 14 of the Family Courts Act, is wrong and illegal and secondly, that the orders dated 12-9-1984 and 27-9- 1984 passed by the two Courts below allowing time for filing the summary of the evidence and full particulars of the witnesses to be produced in the interest of justice, is without jurisdiction.
4. Dealing first with the second contention, Mr.Rehanul Hassan Farooqui relying on section 7(2) of the Family Courts Act, submitted that the names and addresses of the witnesses and a brief summary of the facts to which they would depose are required by law to be submitted alongwith the plaint. As the list of witnesses did not contain their addresses and a brief summary of the facts to which they would depose, the time granted by the Family Court was without jurisdiction. As regards proviso to the said section 7 he submitted that the proviso only empowers the Family Court to permit additional evidence only. He further submitted that the expression "in the interest of justice" has been misused by the two Courts below as the law does not give such power to the Family Court to allow the time to fill up the gap.
5. Section 7 of the Family Courts Act requires that the plaint shall contain all material facts relating to the dispute and shall contain a schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose. It was alleged in the reply to the application under section 7(2) that respondent No.1 due to bona fide omission and oversight, could not mention the gist of evidence of witnesses and the petitioner did not also point out this fact at the time when the list of witnesses was submitted alongwith the plaint. It was further alleged in the said reply (Objections to application under section 7(2) of the Family Courts Act, 1964 filed by the petitioner) that the petitioner mala fide raised the said objection when the witnesses of respondent No.1 entered the witness-box, for which reason they had to return without being examined. The conduct of respondent No.1 remaining silent for a considerable time amounted to waiver on the part of the petitioner and such objections which are merely technical cannot be sustained in the interest of justice.
6. It will, be pertinent to quote below the proviso to section 7 of the Family Courts Act, 1964:- "Section 7. Institution of Suits.-- (1).....................
(2) The plaint shall contain all material facts relating to the dispute and shall contain a Schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and a brief summary of the facts to which they would depose: ' Provided that the parties may, with the permission of the Court, call any witness and produce any document at any later stage, if the Court considers such evidence expedient in the interest of justice."
7. The proviso empowers the Court to call any witness and produce any document at any later stage, if the Court considers such evidence expedient in the interest of justice. It is wrong to assume, as contended by Mr.Farooqui, that the Family Court under this proviso is only entitled to call only further witnesses i.e. other than the witnesses whose names appear in the list of witnesses.
The words "call any witness and produce any document at any later stage" are very wide in their scope. They give ample power to call any witness, whether named in the list of witnesses or not, muchless to say the power to grant time for providing necessary particulars as to the evidence which the witnesses named in the list of witnesses would depose. Justice favours decisions on merits and does not shut out evidence on mere technicalities. The omission to mention the summary of evidence of the witnesses which they were supposed to depose in the Court was merely bona fide and the Family Court was acting within its jurisdiction to grant time to respondent No.1 for giving necessary particulars of the witnesses already named in the list of witnesses in the interest of justice, which is within the ambit of the proviso of section 7(2) of the Family Courts Act, 1964 and so the learned Additional District and Sessions Judge, Karachi was right in dismissing the appeal filed by the petitioner against that order.
8. It may also be stated that the Family Courts Act is a special statute giving exclusive jurisdiction to the Family Courts for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction unless it is shown that the decision is patently wrong. I may say that if two interpretations of a certain provision of law are possible then the interpretation given by the Special Court or Tribunal is to be respected and given preference to another interpretation which may be possible in the opinion of the High Court in its Constitutional Jurisdiction. If an authority is needed the same may be had from a decision of Honourable Supreme Court Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139.
9. As regads the first contention raised by Mr.Farooqui, there is no need for me to examine the same as the order dated 12-9-1984 of the trial Court has been passed in the interest of justice and within jurisdiction. The order dated 27-9-1984 passed by the Appellate Court on merits of the case does not call for any interference.
10. Furthermore, I am not in favour of exercising the constitutional jurisdiction to set aside an order passed in fragmentation of proceedings. As no final decree has been passed or decision given in the suits,c which are pending, it furnishes another ground for refusing the relief exercising discretionary jurisdiction under Art.9 of Provisional Constitutional Order read with Art.199 of the Constitution, 1973.
11. For the reasons discussed above, I find no force in this petition which is hereby dismissed in limine. C.M.A. No.452 of 1984 for stay of proceeding in the Family Court is also dismissed.