DORAB PATEL, J.-Both these references have been put up for hearing together because they involve the construction of the West Pakistan Family Courts Act, 1964 (hereafter called the said Act). In Miscellaneous Appeal No. 28 of 1970, the question referrcd to us by my Lord the Chief Justice is 'In a decision by the Family Court under the Guardians and Wards Act where the presiding Judge is not a Districts Judge or one of equivalent rank does an appeal lie at all and, if so, to which forum 7"
In Revision Application No. 330 of 1971 no question has been formulated, but the point for our determination is whether the Family Court under the said Act is a Court under the supervisory jurisdiction of this Court under section 11; 5, C. P. C.
2. 1 shall first consider the case of the appellant In Miscellaneous Appeal No. 28 of 1970 and, for the purpose of this refeieLce, it is sufficient to state that the appellant was married to the respondent and had a child by this marriage.
Later, she was divorced and, after prolonged litigation, which is not relevant, the respondent filed an application against her for the custody of their minor child in the District Court, Karachi. This application was opposed by the appellant. In the events that happened, it was heard by the 4th Civil Judge, First Class, Karachi who allowed it by his order dated the 30th July 1969. Aggrieved by this order, the appellant filed an appeal against it in the District Court, Karachi which was transferred to the Third Additional District Judge, Karachi. The appeal was contested by the respondent inter ally on the grounds that it could have been filed only in the High Court, and reliance for this submission was placed on a judgment reported in Muhammad Ismail v. Fazal Ahmad (1). The learned Additional District Judge followed the judgment cited and by his order dated 12-2-1970 he directed the r;turn of the Memorandum of appeal to the appellant for presentation in this Court. Accordingly, the next day she presented her appeal in this Court.
Together with the appeal she had also filed an application for a stay of the Family Court's order. It appears that when this application came up for hearing the respondent contended that the appeal was time-barred because it had been presented in this Court long after exphy of the statutory period of limitation. However, whilst hearing these arguments, the Chief Justice had doubts about the maintainability of the appeal, therefore he formulated the question which I have quoted above and referred it to this Full Bench.
3. I have pointed out that this appeal was to be heard with another revision application, and in that revision application the then Chief Jastice had ordered notice to Mr. Hakhruddin, to Mr. A. K. Lakhani and to Mr. Ajmal Mian to appear as amicus curiae. As the two references were to be heard together, these learned counsel have assisted in this appeal and we have also heard Mr. Jafri and Mr. Abbasi, the learned counsel of the appellant and of the respondents. Mr. Ajmal Mian, Mr. Jafri and Mr. Abbasi all submitted, on the basis of section 25 of the said Act, that an appellant aggrieved by the order of a Family Court had the rights of appeal and revision prescribed under the Guardians and Wards Act and therefore their submission was that the appellant was entitled to come in appeal to this Court against the impugned order. On the other hand, Mr. Fakhruddin and Mr. A. K. Lakhani submitted that the provisions for challenging orders of the Family Court were exhaustively set out in section 14 of the said Act, which was an overriding section, and that section 25 merely attracted to the Family Court the procedure of the Guardians and Wards Act, therefore they submitted that the judgment in Muhammad Ismail's case was not good law and should not be followed. I will not consider the arguments of the learned counsel and, as rightly submitted by Mr. Fakhruddin, the question referred to us cannot be decided without reference to the main features of the said Act, therefore I shall first briefly examine its salient features.
(1) PLD 1969 Lah. 834
4. Section 1 of the said Act relates only to its title and extent. Section 2 contains the definitions, and a Family Court has been defined as "A Court constituted under this Act." Acclrding to section 3", Government "shall establish one or more than one Family Courts in such District or at such other place as it may deem necessary and appoint a Judge for each of such Courts." Section 4 deals with the qualifications of Judges and states t "No person shall be appointed as a Judge of a Family Court unless he has been a District Judge, and Additional District Judge or Civil Judge." Section 5 states that, subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified In the Schedule. The matters specified in the Schedule relate to marital disputes and to "custody of children and guardianship". Section 6 deals with the place of sittings of Family Courts acd is not relevant. Section 7 deals with the manner in which suits under the said Act have to be instituted and it is material to point out here that the plaintiff is required to give with the plaint a list of his witnesses with their address together with the documents on which he relies, with duplicate copies for the defendants. He is also required to give a brief summary of the depositions of his witnesses. Section 8 deals with the question of notice to defendants, whilst section 9 deals with written statements. It is interesting to note here that the defandant is also required to give with his written statement a list of his witnesses with their addresses and a precise of their evidence. Thus the provisions of the said Act are similar to the amendents which were incorporated in the Civil Procedure Code in 1962 by Ordinance XLIV of 1962 and deleted by Act III of 1963. Reverting now to the said Act, section 10 deals with pre-trial proceedings, and the important feature of this section is that not only is the Court to "ascertain the points at issue between the parties" but it has also to "attempt to effect to compromise or reconciliation between the parties, if this is possible." Section I1 deals with the manner in which evidence is to be recorded, and it makes an even more sweeping departure from the procedure of the Courts. According to this section, the Family Court may permit evidence to be given by means of affidavits, and this is very significants subsection (3) states : "The witnesses shall give their evidence in their own words and no question shall be put to them by any party or any counsel of a party by way of examination-in-chief, cross-examination or re-examination". Then, after the evidence has been completed, section 12 again imposes a duty on the Family Court egain to try and effect a reconciliation. Section 13 deals with the enforcement of decrees of Family Courts.
Section 14, in so far as it is relevant, reads as follows "14. Appeal.-(1) Notwithstanding anything provided In any other law for the time being in force a decision given or a decree passed by a Family Court shall be appealable- (--) to the High Court, where the Family Court is presided 9var by a District Judge, an Additional District Judge or person notified by Government to be of the rant and status of a District Judge ; and
(H) to the District Court, in any other case.
Sections 15 and 16 are not relevant. Section 17 In so far as It Is relevant, reads as follows "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 Procelure, 1908 (except sections 10 acrd 11) shall not apply to proceedings before any Family Court.
This section Is really a corollary to the novel procedure prescrib--ed In the sail Act for the hearing of suits under It. The only other section. Which is relevant to the arguments before us, is section 25.
This section reads as follows "25. Family Court deewed to 8a a District Court for purposes of Guardians aced Wards Act, 1890.-A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890 and notwithstanding anything contained In this Act, shall in dealing with matters specified in that Act, follow the Procedure prescribed in that Act."
5. The question for consideration Is whether this section confers on the aggrieved litigant the rights of appeal and revision contained in the Guardians and Wards Act. It is true that the section expressly refers to this Act, but it is significant that the A opening words of section 14, which I have quoted earlier, read t "Notwithstanding anything provided in any other law for the time being in force."
The clear effect of these words is to exclude any provisions of the Guardians and Wards Act which may be contrary to section 14. Even otherwise section 25 merely prescribes that a Family Court shall be deemed to be a District Court. But a deeming clause creates a legal fiction and has to be construed strictly, therefore as the Legislature has only enacted that the Family Court is deemed to be a District Court, it means that it is not a District Court, but that merely for the purpose specified in the section it would have the status and powers of a District Court. Additionally, the right of appeal against an order of a Court cannot possibly be described as the status and powers of that Court. Therefore I agree with Mr. Fakhruddin and Mr. A. K. Lakhani that the deeming provision in section 25 of the said Act cannot possibly lead to the conclusion that it confers on a litigant aggrieved by a judgment of a Family Court the rights of appeal and revision contained in the Guardians and Wards Act.
6. I may here draw an analogy from section 11 of the Indus--trial Disputes Ordinance, 1959. This section relates to the powers of Industrial Court and subsection (2) states that an Industrial Court shall be deemed to be a civil Court, whilst subsection (3) states that it shall be deemed to be a Court of Sessions to the Code of Criminal Procedure. Thus this deeming provision is !n part materia with that contained in section 25 and in Qazi Saleem v. The Manager, National Products Company (1), the question before this Court was whether the effect of section 11(3) of the Industrial Disputes Ordinance was to make the Industrial Court a Court subordinate to this Court. My learned brother Ghulam Rasool Shaikh, J. Held that section 11(3) did not make the Industrial Court a Court subordinate to the High Court within the meaning of section 435, Cr. P. C. And I respectfully agree with this view. The ratio deciderdi of this decision is applicable to the present case, and I have no doubt that merely because a Family Court is deemed to be a District Court, an order passed by it cannot be treated as an order of the District Court nor does it become appealable to this Court.
7. Mr. Ajmal Mian and the learned counsel for the parties in this appeal then snbmitted that their argument was supported by the second half of section 25, according to which "Notwithstanding anything contained in this Act" Family Courts had to follow in guardianship matters the procedure prescribed in the Guardians and Wards Act. The learned counsel laid stress on the words of the section which I have quoted and submitted that their effect was that the provisions of appeal conferred under section 14 of the said Act were supersed--ed in guardianship appeals by those conferred under the Guardians and Wards Act. Now, although section 25 is an overriding provisions, it relates only to procedure, therefore the argument of the learned counsel assumed that the procedure prescribed in an Act meant and included the rights of appeal or revision conferred by that Act. This assumption is contrary to the settled law. As observed long ago by Lord Macnaughton in Colonial Sugar Refining Company v. Irving (2), the view that procedure does not include a right of appeal "does not admit of doubt." When I referred the learned counsel to this classic dictum they submitted that a contrary view had been taken in the Lahore case and that unless that view was followed and the word "procedure" extended to include a right of appeal or revision section 25 would become infructuous. I will presently consider the Lahore case, but the argument that section 25 would become infructuous in the 1 shore view is not followed is fallacious.
I have pointed out earlier that the said Act makes sweeping depattures from the procedure of the Regular Courts, and in this connection the provisions of section 11 can legiti--mately be described as somewhat startling. No doubt the object of the novel procedure prescribed in the said Act is to prevent the laws delays. But it is obvious that such provisions can also be used oppressively, and in my humble opinion the Legislature was aware of this danger and was conscious of its obligation to protect the interest of minors. Accordingly, it did not wish to extend to guardianship disputes the novel procedure prescribed in the said Act. But as it transferred such disputes to the Family Court it had to prescribe that the Family Court should follow the slower but safer procedure prescribed in the Guardians and Wards Act. That and that only is the object of section 25, and I cannot agree with learned counsel that section 25 will become infructuous unless the meaning of the word "procedure" is extended to include appeals. Additionally, I do not see how the word "procedure" can, so to say, be stretched to include a right of appeal. It is a word which has be:n frenquently construed by the Courts and as the correctness of the view taken by Lord Macnaughton in the Colonial Sugar Refining Company's case has been repeatedly armed by our Courts, it is too late in the day even to argue that the word "procedure" can include the right of app ral, d which is a substantive right. I am therefore not able to agree with the view to the contrary taken in Muhammad Ismail's case. T am aware that this view has again been taken by a learned Single Judge in Juma Khan v. Gul Feroshah (1) But, with respect, I am not able to agree with it.
8. However, as Mr. Ajmal Mian and the learned counsel for the parties based their arguments almost entirely on Muhammad Ismail's case, it requires further examination. There, as in the present case, the appellant was aggrieved by an order passed fn a guardianship matter by a Civil Judge who was sitting as a Fa nily Court and had filed an appeal directly in the High Court.
According to the respondent, the appeal should have been filed in the District Court, but in rejecting this objection, the learned Judges of the Division Bench observed in paragraph I 1 of the judgment to be equated with a District Court for the purpose of cases sub-clause (b) of subsection (1) of section 14 would be straightway excluded inasmuch as the order passed by the Family Court in a case of this kind would be only in its capacity as a District Court and na Court can hear an appeal against its own order or from that of a concurrent jurisdiction.
Likewise, clause (a) would also be inapplicable inasmuch as it could be invoked only in a case where the Family Court Judge or a person notified by. Government to be of the rank District Judge. It appears to us that where a Civil Judge, 1st Class, functions as a Family Court while dealing with a case relating to the custody or guardianship of a minor, the conferred on him, by means of a notification in order to make his order appealable under clause (a) of subsection (1) of section 14. The learned counsel for the appellant could not place any such notification on the record. It would thus appear that the order in question or any such order would not at all be amenable to an appeal. Obviously nothing
(1) PLD 1972 Posh. 1 could be further from the Intention of the Legislature than to impart a finality of such an order of the Family Court which cannot be deemed to have become sacrosanct."
Then, in consequence of the view thus taken by them that there would otherwise be no right of appeal against the order of a Civil Judge sitting as the Family Court, the learned Judges held that the meaning of the word "procedure" in section 25 had to be extended to cover a right of appeal. In my humble opinion, the meaning of "procedure" cannot be altered and as to the observations in paragraph 11, with great respect, I am not able to agree with them.
9. In the first place a right of appeal is a creature of the statute, and as the language of section 14 is plain beyond any doubt the Courts have to give effect to it and, in my humble opinion, the learned Judges erred in rejecting the plain meaning of subsection (b) of section 14 with the observation that "No Court can hear an appeal against its own order or from that of a concurrent jurisdiction."
This observation itself is based on rule 7 of the Rules framed under the said Act. But this rule confers authority on the District Judge to transfer family suits to the Courts of the Additional District Judge, the Senior Civil Judge etc. And further states "and thereupon the Court to which such suit is so transferred shall have jurisdiction to hear and try the same." Mr. Fakhruddin submitted that the learned Judges had treated this rule as conferring on a Civil Judge the rank of the District Judge and erred in thus defeating the plain language of section 14 by reference to the rules framed under the said Act. I agree with the submission that there is no ambiguity in section 14 and rules framed under a statute are subordinate to that statute. Secondly, rule 7 deals and can only deal with the powers to be exercised by a Civil Judge to whom a Family suit is transferred. It can neither convert that Judge into what he is not, namely, a District Judge, nor make appeals from his orders to the District Court, nor would appeals from his orders to the District Court become inter Court appeals, as held by the learned Judges. Therefore, in my humble opinion, the learned Judges erred in thinking that tie 'Legislature had rob conferred a right of appeal and that therefore the Court had to alter the meaning of the word "procedure" in section 25. With very great respect, as I have explained, the meaning of the word "procedure" cannot be altered nor is it necessary to do so because there is no lacuna in section 14. As guardianship disputes fall under subsection (1) of the section, it is clear that G the Legislature has conferred in plain and unambiguous language a right of appeal against every decree and decision of Family Court whoever be the Presiding Officer of that Court. In the result, in my humble opinion, Muhammad Ismail's case has not been correctly decided and should not be followed.
10. Mr. Ajmal Mian then referred us to the judgment of the Supreme Court in Adnan Afzal v. Capt.
Sher Afzal (1) and I will quote here the observations on which learned counsel
(1) PLD 1969 SC 187 relied. At page 192, Hamoodur Rahman, J., who delivered the judgment of the Court, has observed as follows :- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted."
According to learned counsel, the word "remedy" in the second sentence meant a right of appeal, therefore according to learned counsel, these observations of their Lordships clearly implied that a right of appeal was a question of procedure. The observations had reference to the construction of the said Act, the question before the Court being whether the right of mainte--nance conferred on the wife under the;said Ac! Had superseded the provisions of section 483, Cr. P. C., and the word "remedy" had referred to the view of their Lordships that the remedy prescribed by the said Act was a more adequate remedy than under section 488, Cf. P. C., therefore it had superseded it. Thus there is nothing in the observations to support the view that a right of appeal is a question of procedure and not a substantive right. Mr. Ajmal Mian then submittel that his argument was supported by the observations of their Lordships of the Supreme Court in KhIzar Hayat Khan Ttwana v. Zatnab Begum (1). In the penultimate paragraph of the judgment Hamoodur Rahman, J., now the Chief Justice, has observed as follows "In our view section 17 of the Family Courts Act which excludes the application of the Evidence Act and the Code to proceedings thereunder does not also govern proceedings under section 25 thereof, for, the latter takes effect notwithstanding anything else contained in the said Act."
Mr. Ajmal Mian thought that these observations supported his argument because their Lordships have held that in guardianship disputes the Family Courts bad to follow the procedure of the Guardians and Wards Act and not of the said Act. With great respect, no other view of section 25 is possible, but the argument of the learned counsel is that the procedure of the Guardians and Wards Act means the rights of appeal and revision conferred under that Act. That question however was not before their Lordships nor is there anything in the observations to support learned counsel's argument.
11. No other argument was advanced. Accordingly, I would answer the question referred to us as follows An appeal against a decree or decision of a Family Court under the Guardians and Wards Act, when its presiding Judge is not a District Judge or a Judge of equivalent rank, lies to F the District Court and not to this Court.
12, 1 now turn to the revision application. The applicant is aggrieved by an interlocutory order passed in an application
(1) PLD 1967 s c 402 under section 12 of the Guardians and Wards Act and he has come in revision to this Court because, according to him, he has no other remedy.
13. In the first place the argument that the applicant has no other remedy is based on a misreading of section 14 of the said Act. I have quoted this section earlier and it confers a right of appeal even against the decisions of a Family Court, it is clear that the applicant could have filed an appeal in the District Court under Clause (b) of subsection (1) of section 14 against the order by which he was aggrieved. Secondly, a revision is a remedy under the Civil Procedure Code. But as section 17 of the said Act has prescribed that the provisions of the Civil Procedurt Code, except sections 10 and 11 shall not apply to Family Courts; the applicant cannot invoke section 115 of the Civil Procedure Code, and that was also the view of my learned brother Muhammad Haleem, J. In Mst. Farida Purveen v. Qadeeruddin Siddlqul (1).
14. Mr. Siddiqui then submitted that his case was supported by Muhammad Ismotl's case and by another judgment of the West Pakistan High Court reported in Mst. Gaman v. Taj Din (2). According to learned counsel, Muhammad Irmail's case supported his argument because of the view of the learned Judges that a Family Court was a District Court; and therefore, according to learned counsel, the impugned order fell under section 115, C.P. C. In my humble opinion, for the reasons which I have given. The view taken in Muhammad Ismail's case that a Family Court is a District Court is not correct and cannot be followed. As to Mst. Gaman's case learned counsel's submission that it supports him is misconceived. There the facts were that the petitioner and her husband had filed family suits against each other under the said Act. The petitioner had filed a suit in Multan, whilst the respondent filed his suit in Lahore. She therefore filed an application under sections 24 and 151, C. P. C. For the transfer of the Lahore suit to the Family Court in Multan. This application was allowed not however under the Civil Procedure Code but under Article 102 of the Constitution. The learned Single Judge held that the provisions of the Civil Procedure Code were not applicable to proceedings under the said Act and therefore, on the peculiar facts of the case, he exercised his jurisdiction under Article 102 of the Constitution and allowed the application. With respect, I would like to observe here that the jurisdiction of this Court under Article 102 Is not to be lightly invoked and further as the learned Single Judge held that the impugned order could not be challenged under the Civil Procedure Code, it is clear that the judgment cited does not support Mr. Siddiqui s argument but on the contrary, goes against it.
15. No other argument was advanced. As the Civll Procedure Code is not applicable to proceedings under the said Act, the revision is not maintainable. Further, as the case itself has been referred to us, the revision is dismissed with costs. I thank the learned counsel who appeared as amicus curlae for their assistance to us.
(1) PLD 1971 Kar. 118(2) PLD 1968 Lab. 987