1. IFTIKHAR MUHAMMAD CH., J: --Petitioner feeling aggrieved from the following order dated 5th December, 1993, passed by Civil Judge III, Family Court, Quetta has preferred instant Constitutional petition:-- "This order shall dispose of an application filed under section 9 subsection (2) of the Family Courts Act read with section 4 of the Act. I of 1969 and section 2 and Schedule of Ordinance 18 of 1970, wherein the plaintiff applicant contended that permission be granted to her for service of summons through publication, because the relevant law regarding intimation to the defendant had amended, and section 8, subsection (2) provides, the publication in the Newspapers. I am afraid the contention raised in this behalf is not correct and in section of the Family Courts Act all the modes of service has been prescribed and in subsection (6) the mode of publication through Newspaper also been deliberately excluded, reasons best known to the law-makers, be that as it may. The amendment of section 8, subsection (2) of Act of 1964 is altogether a different thing which also do not find place in the latest edition of Manual of Family Laws, which seems that the said amendment was subsequently repealed, hence the application is dismissed the plaintiff is directed to furnish the correct address of the defendant and he may be served in accordance with law."
2. Process was directed against the respondent Muhammad Yousaf son of Muhammad Ali by ordinary manner and by making publication appeared in Daily `Mashriq' Newspapers, Quetta and Lahore on 4-5-1994 and 6-5-1994, respectively. But despite of service, he failed-to attend the Court. The Family Judge who took over the charge of the post after the publication refused to proceed against him ex parte for the reasons mentioned in the above order as such instant petition.
3. Mr. Muhammad Riaz Ahmad, learned counsel for petitioner, vehemently contended that the Family Judge passed impugned order without adhering to uptodate law contained in section 8(2) of the Family Courts Act, 1964. He further emphasised. That the learned Judge has fallen into error in relying on the provisions of law, which has already been repealed as back as in the year, 1970, as such the impugned order suffers from jurisdictional defect and warrants interference by this Court.
4. We have examined the contentions so raised by learned counsel as well as the relevant provisions of section 8(2) of the Family Courts Act, ,1964.
5. Before dilating upon the question involved, we may observe that the learned Judge instead of consulting the recognized statutory books has placed reliance on the Manual of the Family Laws which does not appear to be up to date: It is always advisable for the Presiding Officer and the Advocates, to refer the law books which are authentic anti have been recognized by the competent authority to avoid the chances of misleading.
6. With -reference to the proposition i.e. Whether defendant in a family suit can be intimated by publication, besides following the ordinary mode or not. It is to be seen that on 18th July, 1964, West Pakistan Family Courts Act. 1964 was enacted wherein section 8 relating to intimation to defendant was added in the following terms:-- "8.Intimation to defendants.--(1) Within three days of the presentation of the plaint to a Family Court the plaintiff shall send to each defendant by registered post, a copy of the plaint together with a copy of the Schedule as mentioned in section 7(2) and copies of all documents mentioned in section 7(3).
7. (2)Save as may otherwise be prescribed, the plaintiff shall also, within the time specified in subsection (1), cause notice to be inserted in any two newspapers approved by the Family Court of the fact of his having filed the plaint."
8. (PLD 1965 C&P Statutes 305).
9. Later on above section was substituted by West Pakistan Family Courts (Amendment) Act, I of 1969.
10. It reads as follows:- "4,Amendment of section 8 of West Pakistan No. XXXV of 1964.---For section 8 of the said Act, the following shall be substituted namely:--
8. Intimation of defendant,--(l) When a plaint is presented to a Family Court, it--
(a) may fix a date ordinarily of not more than thirty days for the appearance of the defendant;
(b) shall issue summons to the defendant to appear on the date specified therein;
(c) shall, within three days of the presentation of plaint, send--- (i)to each defendant, by registered post, acknowledgment due, a notice of the suit, together with the copy of the plaint, a copy of the Schedule referred to in subsection (2) of section 7 and copies of the documents and a list of documents referred to in subsection (3) of the said section; and (ii)to the Chairman of the Union Council within whose jurisdiction the defendant or defendants, as the case may be, reside and where the defendants, reside within the jurisdiction of different Union Councils, to the Chairman of every such Union Council, a notice of the plaint having been presented.
11. (2)Every summons issued under clause (b) of subsection (1) shall be accompanied by a copy of the plaint, a copy of the Schedule referred to in subsection (2) of section 7, and copies of the documents and list of documents referred to in subsection (3) of the said section.
12. (3)On receipt of the notice under clause (c) of subsection (1), the Chairman shall display the notice on the Notice Board of the Union Council for a period of seven consecutive days; and shall, as soon as may be after the expiry of the said period inform the Family Court of the notice having been so displayed.
13. (4)Service of the plaint and its accompaniments in the manner provided in clause (b) or clause (c) of subsection (1) shall be deemed to be due service of the plaint upon the defendant.
14. (5)Every notice and its accompaniments under clause (c) of subsection (1) shall be served at the expense of the plaintiff. The postal charges for such service shall be deposited by the plaintiff at the time of filing the plaint.
15. (6)Summons issued under clause (b) of subsection (1) shall be served in the manner provided in the Code of Civil Procedure, 1908, Order V, Rules 9,10 , 11, 16, 17, 18, 19, 21, 23, 24, 26, 27, 28 and 29. The cost of such summons shall be assessed and paid as for summons issued under the Code of Civil Procedure, 1908.
16. Explanation .--For the purpose of this section, the expression Union Council means a Union Council, Town Committee or Union Committee constituted under section 57 of the Electoral Colleges Act, 1964 (IV of 1964)."
17. (PLD 1969 C & P Statutes 47).
18. In the year, 1970 above Act I of 1969, was repealed by the West Pakistan (Repealing) Ordinance, 1970 (PLD 1970 C & P Statutes 323) leaving the text of section 8 to occupy the field in its original form. Thereafter the Provincial Legislature of Balochistan did not enact or amend this section.
19. Whereas in the Province of Punjab section 8 was amended by means of an Ordinance.
20. As such, in view of above legal position, it is held that section 8 of the Family Courts Act as it was enacted on the day of its inception, is applicable in the Province of Balochistan. Thus the defendant can be intimated by making publication in the Newspaper that a case is pending against him.
21. As such, it is clear that Family Judge acted without consulting the relevant provisions of the law, therefore, the impugned order is declared having been passed without lawful authority and jurisdiction. Consequently the petition is allowed, case is sent back to the lower Court for affecting service on respondent through publication in the Newspaper as well as by ordinary manner, keeping in view the above provisions of law.
22. No order as to costs.