' This judgment will also dispose of Writ Petition No,2285 of 1990 as the petitioner has challenged the order of the learned Judge, Family Court passed in the same suit and identical questions of fact and law are involved in both of them.
2. The petitioner has filed a suit for restitution of conjugal rights against respondent No,2, whereas respondent No,2 has filed a suit for dissolution of marriage against the petitioner. Both the suits according to learned counsel for the petitioner have been consolidated and consolidated evidence is being recorded.
3. The case was fixed before the learned Judge, Family Court on 9-2-1989 for recording the evidence of respondent No,2. On this date, the petitioner appeared and requested for adjournment as according to him his learned counsel was busy before the High Court. Learned Judge, Family Court observed that on the said date it was Thursday as such High Court was not functioning therefore he proceeded to record evidence of witnesses of respondent No,2. Since the learned counsel for the petitioner was not present therefore, no cross-examination was conducted on behalf of the petitioner.
4. The petitioner filed an application for granting him opportunity to cross-examine the witnesses examined on 9-2-1989. This application has been dismissed by the learned Judge, Family Court through the impugned order dated 7-5-1990 on the ground that order dated 9-2-1989 was not assailed in revision so there was no justification to re-open the matter now and to provide an opportunity to the petitioner to cross-examine the P.Ws.
5. It has been argued by learned counsel for the petitioner that jurisdiction was vested with the learned trial Court to re-call witnesses at any stage of the proceedings and the request of the petitioner to allow him to cross-examine the P.Ws. The evidence of whom was recorded on 9-2- 1989 by re-calling them should have been considered after judicial application of mind. He argued that the application of the petitioner has been dismissed merely on the ground that order dated 9- 2-1989 was not assailed in revision. He pointed out that the remedy of revision has not been provided in the West Pakistan Family Courts Act against interim order of a Judge, Family Court as such the learned Judge, Family Court failed to exercise jurisdiction vested in it under the law to re- call a witness on the erroneous assumption that he could not re-call them as the order dated 9-2- 1989, could be assailed in revision only.
6. The argument has considerable force. The Judge, Family Court is with ample jurisdiction to re- call a witness in-the interest of justice. The application of the petitioner for granting him opportunity to cross-examine witnesses who were examined on 9-2-1991 in his absence should have been considered on application of judicial mind and refusal to consider the request of the petitioner on the ground that the said order was not challenged in revision petition has resulted in failure to exercise jurisdiction by the Court.
7. The order dated 7-5-1990 passed by the learned Judge, Family Court dismissing petitioner's application for grant of opportunity to cross-examine the witnesses of respondent No,2 is hereby declared to have been passed without lawful authority and of no legal effect and quashed. The learned Judge, Family Court shall dispose of the said application in accordance with law. The parties are left to bear their own costs.
8. In the connected writ petition order dated 26-6-1990 passed by learned Judge, Family Court through which the evidence of the petitioner has been closed, has been called in question. I have examined the record. It appears that the learned Judge, Family Court dismissed the application of the petitioner on 7-5-1990 for giving him opportunity to cross-examine the witnesses and fixed the case. For 26-6-1990 for recording his evidence observing that the same would he the last opportunity. On 26-6-1990 the petitioner did not produce evidence therefore the learned Judge, Family Court proceeded to pass the impugned order for closing petitioner's evidence.
9. It has been rightly argued with considerable force by the learned counsel for the petitioner that on 7-5-1990 after the dismissal of the petitioner's application the case was fixed for 26-6-1990 for recording his evidence which was a date fixed in a routine and cannot be said to have been fixed at the request of the petitioner so as to attract the penal provisions of Order 17, Rule 3, C.P.C. As the order for closing the evidence has been passed on the principles contained in the said provision of C.P.C. Though not directly applicable as C.P.C. Was not applicable to these proceedings before Judge, Family Court.
10. Learned counsel for respondent No,2 argued that before the disposal of the said application the petitioner had already been granted an adjournment, opportunity to produce evidence therefore, the impugned order for closing his evidence on 26-6-1990 was justified.
11. The argument in my opinion has no force because for attracting the principles as contained in Order 17, Rule 3, C.P.C. It is only the date on which the order for closing the evidence is made is to be taken into consideration to find out whether the said date was fixed in routine or on the request of a party whose evidence was closed. Applying this principle it is manifest that 26-6-1990 was not fixed on the request of the petitioner as the same was fixed in routine after the dismissal of his application aforementioned as such the impugned order is not sustainable as the same suffers from jurisdictional defect because the learned Judge, Family Court was not vested with jurisdiction to pass order for closing evidence on the said date. The writ petition No,2285 of 1990 is also accepted. The impugned order dated 26-6-1990 is hereby declared to have been passed without lawful authority and of no legal effect and quashed. The learned Judge, Family Court shall fix a date for recording evidence of the petitioner after disposal of his application for permission to cross-examine the P.Ws for which the case has been remanded in the connected writ petition and dispose of the suit in accordance with law.