1. ' The petition challenges the order dated 6-8-1990 passed by the learned IInd Senior Civil Judge, Karachi (Central) in family Suit No,970/88 and the order dated 9-9-1990 of the learned District Judge Karachi (Central) passed in Family Appeal No,33 of 1990.
2. ' Family Suit bearing No,970 of 1988 was filed by the respondent for the dissolution of her marriage with the petitioner by way of Khula and another Family Suit bearing No,579 of 1989 was filed by the petitioner against the respondent for the restitution of conjugal rights. Both these suits were consolidated and are still pending with the respondent No,3. Apparently the cases were adjourned on several occasions for the evidence of parties and ultimately last chance was allowed to the petitioner by the learned Judge while granting his request for adjournment on 12-4-1990. On the next date of hearing i.e, 14-5-1990, the Advocate for the petitioner once again sought adjournment on the ground of being' busy in the High Court in connection with two first rent appeals fixed for regular hearing. However, his application for adjournment was rejected by the Court and after waiting for the petitioner's advocate for some time the learned trial Court proceeded to record the statement of the respondent No,1 and her father. Respondent alleges that later that day the advocate for the petitioner came to the Court and was asked by the Court to cross examine the two witnesses but he refused. The petitioner however states that before the arrival of his Advocate in the Court, the statements of both the witnesses had already been recorded and the cross- examination was closed. Thereafter on 30-51990 application was moved on behalf of the petitioner for the recalling of the witnesses for cross examination. This application was disposed of by the learned Family Court by its order dated 6-8-1990 which is challenged in this petition. Against the said order appeal being Family Appeal No,33 of 1990 was filed by the petitioner in the Court of the District Judge, Karachi (Central) which was dismissed by order' dated 9-9-1990.
3. ' It is contended by Mr. Abdul Fahim Khan, the learned counsel for the petitioner, that as section 14 of the West Pakistan Family Court Act, 1964 provides for appeal, both, from decisions as also decree of the Family Court, the respondent No,2 acted without jurisdiction in holding that no appeal lay from the impugned order dated 6-8-1990. According to him the term 'decision' was of wide connotation and included even interlocutory orders and for this proposition he sought support from the cases of Mst. Yasmin Zafar v. Muhammad Anwar Khan PLD 1989 Lah. 38, Syed Shamim Ahmed v. Mst. Riaz Fatima PLD 1975 Kar. 448 and Mst. Zaibunnisa v. Muhammad Muzammil PLD 1972 Kar.
410. In all these cases it was held that order passed under section 12 of the Guardians & Wards Act was appealable and in the first two cases it was further held that the word `decision' used in section 14 of the Act would not cover every interlocutory order passed by the Family Court but only such order as was covered under some provision of the Act. The learned counsel submitted that even if the narrower meaning was given to the word 'Decision' as held in the above judgment, the impugned order dated 6-8-1990 would still fall within its ambit as that too was passed on application under Rule 13 of the Family Courts Rules, 1964.
4. ' The learned counsel next contended that by reason of the impugned orders the petitioner has been deprived of his right of cross-examination to which he was entitled by virtue of the first proviso to subsection (3) of section 11 of the Act read with the first proviso of subsection (4) of that section. His further contention was that the respondent No, 3 had no jurisdiction to pass a conditional order requiring the petitioner to deposit the huge amount of Rs,30,000. He asserted that by the impugned order dated 6-8-1990 the trial Court having ordered the recalling of the witnesses for the cross-examination, though conditionally on the deposit of money, such order remained effective notwithstanding the failure to deposit the amount as the non-deposit, according to the learned counsel would merely create a civil liability as held in the case of Muhammad Sanaullah v.
5. Muhammad Ilyas, Senior Civil Judge and others PLD 1987 Lah.
420. The contention of the learned counsel is not well founded for in the said case decree for the dissolution of marriage had been granted subject to the condition of depositing certain amounts of money and it was in that context that the Court held that non-fulfilment of the condition would not render the decree dissloving the marriage as ineffective. In the present case the order is an interlocutory order and the proposal for payment of the witnesses' fare was put forward at the suggestion of the respondents.
6. ' The contention of Mr. Mumtaz Ahmed Shaikh, the learned counsel for the respondent, was that the word 'decision' as used in section 14 of the Act, would not cover every interlocutory order passed by a Family Court as held by superior Courts in several cases including Muhammad Saleem v. Mst.
7. Parveen Akhtar (1986 M LD 1307), Shah Muhammad v. Additional District Judge, Sheikhupura and another (1979 CLC 364) and S. Azhar-ul-Hassan Naqvi v. Mst. Hamida Bibi (1979 CLC 754).
8. Therefore, he contended that the impugned interlocutory order of the trial Court was not aedecision' within the meaning of section 14 of the Act and was not appealable as rightly held by the learned District Court. But. Even if the original order was assumed to be appealable, the learned counsel said, no fault can be found with the appellate order as the respondent No,2 had upheld the trial Court's order on merits too. It was pointed out that in his application for the recalling of the witnesses for cross-examination the ground taken by the petitioner was the same as was stated in his earlier application for adjournment and was rejected by the trial Court, as such, there was no material before the Court to take a view different from that taken by it earlier. It was urged that the petitioner was given more than reasonable opportunity for the cross-examination and as such his grievance about having been deprived of the right of cross-examination was misconceived. When the trial Court adjourned the case on 12-4-1990 to 14-5-1990, giving the petitioner last chance, the petitioner had ample time to make arrangement for proceeding with the case on 14-5-1990 and necessary adjustment could have been got effected if the appeals were coming up for hearing in the High Court on that date. In the circumstances, it was said, the trial Court was justified in closing the cross-examination of the witnesses. The counsel on this point referred to the case of Mst. Ruqia Bibi v. Additional District Judge, Bahawalpur and others (1986 M LD 1686) where the High Court refused to interfere in writ jurisdiction with the order of the trial Court closing the evidence of the plaintiff after her failure to produce evidence in spite of several opportunities and a last chance given to her.
9. ' Obviously even after the closing of the cross-examination the petitioner was not diligent as the application for recalling the witnesses was filed on 30-5-1990 just a day before the summer vacations.
10. ' The learned counsel then submitted that the order passed by the trial Court being discretionary in nature cannot be said to be without jurisdiciton and the present petition was not competent. He placed reliance on the case of Noor Muhammad v. Sarwar Khan and others PLD 1985 SC 131.
11. The contentions of the learned counsel for the respondent are not without force. With regard to the question as to whether or not the impugned order of the learned Court was appealable, it seems that in view of the several decisions referred to by the parties it is almost settled that the word 'decision' used in section 14 of the Act does not include every interlocutory order of the Family Court, but covers only such orders as are passed under some provision of the Act and this, it appears, would imply the final or temporary determination of a matter forming part of some issue involved in the case. Applying this test, the order dated 6-8-1990 passed by the trial Court would, in my view, not be `decision' for purposes of section 14 of the Act and therefore, not appealable.
12. As to the other contention put forward on behalf of the respondent regarding the maintainability of the petition, there can be no manner of doubt, that the impugned order of the learned trial Court was discretionary and in respect of a matter falling within the jurisdiction of that Court and as such it could not be challenged in a constitutional petition as laid down by their Lordships of the Supreme Court in the above-referred case of Noor Muhammad v. Sarwar Khan and others where in para. 6 their Lordships observed:-- "6. Before parting with the case we may observe that there is an increasing tendency to file Constitutional petitions even when the Courts whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court (in contradistinction to a persona designata), has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it 'without lawful authority' and certainly not illegal."
13. The upshot of the foregoing discussion is that the orders of the respondents No,2 and 3 are unexceptionable and the present petition has no merit and is dismissed with costs.