RANA BHAGWAN DAS, J.- By this petition, the petitioner, defendant in Family Suit No.915'1991, for maintenance of respondent No. l and her minor child respondent No.2 seeks remedy against interlocutory order dated 7.8.I994 passed by Family Court No. VIH Karachi-East and order dated 22.9.1994 passed in appeal by District Judge, Karachi-East declining to set-aside the order dated 20.4,1994 closing the side of the petitioner on his failure to appear for evidence and to produce any witness in support of his defence in the aforesaid suit pending decision. I6 days after, the order as aforesaid petitioner/ defendant moved an application under section 11(3) of the Family Courts Act.
1964 (hereinafter referred to as Act .1964) for recalling the said order which was strenuously contested by both the respondents. By order dated 27.8.1994 his application for recaling the earlier order was dismissed which was challenged in Family Apppeal No.Nil of 1994 before the District Judge Karachi-East but without any success vide order dated 22.9.1994, hence this petition.
2. First question for consideration in this petition is whether the order dated, 27.8.1994 is a decision within the meaning of the term and thus appealable under section 14 of the Act. 1964. On perusal of the impugned order it seems that the order does not determine the rights of the parties inter se and is incidental and ancillary in its nature regulating the procedure of the Court for trial of the suit for. Maintenance. Since the suit brought by reespondents No.l & 2.In 1991 is still pending decision, it cannot be held that the order has attained finality so as to render it appealable before, the District Court or subject to judicial scrutiny by this Court in the exercise of constitutional jurisdiction.
3. Section 14 of the Act, 1964 providing for appeal permits appeal only against the "decision given" or "decree passed" by a Family Court. While a decree' finally adjudicates rights of the parties inter se word "decision" used in the Act 1964 , has not been judicially defined in the Act itself. Its dictionary meaning may therefore, betaken into consideration for determination of the question involved.
4. According to Chambers 20th Century Dictionary New edition 1983 "decision" means." the act or product of deciding: settlement: judgment: the quality of ( being decided in character."
5. According to Black's Law Dictionary, sixth edition 1891-1911 decision means" a determination arrived at after consideration of facts, and in legal context, law. A popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character.
A determination of a judicial or quasi-judicial nature. A judgment, decree, or order pronounced by a Court in settlement of controversy submitted to it and by wav of authoritative answer to the questions raised before it. The term is broad enough to cover both final judgments and interlocutory orders. And though some times limited to the sense of judgment, the term is at other times understood as meaning simply the first step leading to a judgment: or as an order for judgment. The word may also include various rulings, as well as orders, including agency and commission orders.
The findings of fact and conclusions of law which must in writing and filed with the clerk.
6. According to Black's Law Dictionary "Final Decision" means"...One which leaves nothing open to further dispute and which sets at rest cause of action between parties. One which settles rights of parties respecting the subject matter of the suit and which concludes them antil it is reversed or set aside."
7. As per Aiyar's Judicial' Dictionary, 10th edition 1988 the word "Decision" has been defined as under: "The expression "decision" has a wide connotation, whenever a question is determined, or a judgment is rendered, a conclusion is arrieved at, after weighing the reasons for and against the proposition, it is a decision. In the civil law generally it means the determination of a question, the final order which disposes of a suit or cause: also that portion of a statute which orders or directs the performance of a duty.... Under some circumstances "decision" has been held equivalent to, or synonymous with "ascertainment", (see 6 CJS 788, Note 35; "award", see 7 CJS 1311, Note 57; and "crder" see gangadhar Lalliram V. Nirvachan Adhikari (AIR 1971 M.P. I6 (28) D.B.. The word "decision" means the determination of a question or controversy and not the reasons or grounds which weigh with the Court in arriving at such decision."
8. With reference to the essence of decision and in the light of Es ta'te of Orissa v. Sudhansu Sekhar Misra (1968 2 SCJ 236, the author says what is.Essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract the sentence here and there from a judgment and to build upon it.
9. From the definition given in different dictionaries it follows that each and every order passed by a Court of law would not amount to a decision. At any rate orders regulating the mode of proceeding before the Court and not .Deciding the rights and obligations of the parties finally cannot be treated as "decision given" amenable to an appeal. For instance an order adjourning the hearing of a suit, an order to refuse' to adjourn a suit, an order refusing to summon a witness or an order admitting a document the period fixed by the Court may not fall within the ambit of word "decision given". On the other hand an Interim order transferring custody of a minor or making a provision for iterim maintenance for the wife or a child may be treated as decision for the purpose of scrutiin by a Court of appeal. In the present case a large number of opportunities was provided to the petitioner; he being given a last chance and having contemptuous disregard for payment of costs of Rs.100/- subject to .Which on earlier occasion adjournment was granted prima facie the trial Court cannot be said to have acted without jurisdiction, in excess of authority or in contravention of the settled principles of law. Having however held that the order passed was interlocutory in nature and did not decide the rights and obligations of the parties finally the view taken by the learned District Judge that the appeal from the impugned order was incompetent cannot be held to be arbitrary or against the provision of a law as the suit is pending decision for the last about five years and no decree has been passed. It would therefore be open-to the appellant to agitate this issue in the appeal from the final decree, if still aggrieved.
10. Preamble of Act I964 tends to show that Family Courts were established in order to achieve the object of expeditious settlement and disposal of disputes relating to marriage and family affairs or matters connected therewith. Very purpose of enactment of Act shall be frustrated if each and every order passed by a family Court is allowed to be appealed from and the order called into question in writ jurisdiction before the High Court. Observation of the trial Court that the petitioner had been adopting delaying tactics, in my view cannot be completely overlooked and if the purpose behind appealing from the impugned order and invoking writ jurisdiction of this Court from the original as well appellate Courts order is to create harassment for the wife and her minor child, the course adopted can only be deprecated by discouraging such uncalled for litigations.
11. Lam fortified in this view by a Division Bench judgment of the Lahore High Court authored by Muhammad Afzal Zullah-J (as his Lordship then was) in the casereported as Amanullah v. Mukhtar Ahmed Khokhar( 1979 CLC 199). Explaining the object of West Pakistan Urban Rent Restriction Ordinance, it was held that the object behind the legislation contained in the Ordinance was to ensure quick disposal of cases relating to disputes between the landlord and tenant. If every order passed by a Rent Controller, during hearing of the case, is allowed to be challenged by means of a writ petition, it might not only amount to abuse of constitutional jurisdiction but would also defeat the purpose for which the Ordinance was enacted.
12. In the case reported as Major Ali Hussain Siraj v. Afst. Shahzadi Bukht Shams (PLD 1977 Karachi 764) a Division Bench of this Court dealing with constitutional petition from an order passed by the Family Court allowing procedural amendment of plaint in a suit for recovery of dower took the view that the scheme of Act showed that it is not the intention of the- Legislature to non-suit the parties on technical grounds for neither CPC (except Sections. 10 & II) nor Evidence Act apply to proceedings before it. Speaking for the Division Bench Mr. Fakhruddin G. Ebrahim, J. (as he then was ) expiressed the view that the Court was left with the impression that the purpose of the petition was to harass the respondent lady and to delay her suit and directed against the innocuous interlocutory order, which was dismissed with special costs of Rs.200/-
13. There is yet another case decided by a learned Single Judge of this Court reported as Maqsood Ali v. Soofia Noushaba (1986 CLC 620) in which the purpose and scope of Act 1964 was explained at length with reference to various provisions. Dealing with the order relating to execution of a decree passed by a Famly Court it was observed as under:- "A perusal of the various provisions of the Act shows, that sub-section (1) of section 14 the'Act provides only for one appeal against a decision or decree of the Family Court. Sub-section (2) of that section even goes to make certain decrees passed by the said Court non-appealable. The intention of the legislature, therefore, clearly seems to be to reduce further litigation in matters triable by the Family Court, specially in case of orders of interlocutory nature. Further, according to section 17 of the Act the application of the C.P.C, to the proceedings under the Act is completely barred except sections 10 and 11 of the CPC. The intention of the Legislature, therefore, clearly seems to be that every decision given or decree passed by the Family Court should not be made appealable and also liable to be carried to the High Court under section 115 of the C.P.C."
14. Even in section 115 CPC which provides for a revision before the High Court in respect of a "case decided" by a subordinate Court and in which no appeal lies, the view taken by superior Courts from time to time manifests that each and every order passed by a subordinate Court cannot be termed as "case decided"
15. In Habibvllah v. Pak Cement Industries Ltd. (1968 SCMR 864) where the subordinate Court had permitted the admission of doecument not included in the list of documents relied upon before framing of issues, Honourable Supreme Court upheld the view taken by the High Court that the order permitting the respondents to place certain documents did not constitute a "case decided" within section 115 CPC.
In Ahmed Din v. Australasia Bank Limited (1971 SCMR 507) ing amendment of plaint was held as not a "case decided" and not amenable to revisional jurisdiction of the High Court.
In Amtul Rasool v. Ghulain Rasool (1974 SCMR 532) an order rejecting an application under order XIX rule I & 2 C.P.C, by executing Court was held as not a case decided and thus not revisable by the High Court under section 115 C.P.C.
16. In S.H.M. Rizvi v. Maqsood Ahmed (PLD 198l S.C. 612) dealing with the word "final order" in the context of Service Tribunal Act, 1973, Hon'ble Supreme Court rules that a final order has the distinction of determining the rights of the parties. Where any further step is necessary to perfect order, the order cannot be taken to be final. Theif Lordships went on observing that an order may be final', if itThrough Ordinance Vll of 1991, section 7 was amended. This Ordinance became Act on 13.2.1992. Following is the newly amended section 7 of the Sindh Civil Courts Ordinance, 1962 which was amended vide Act 1H of 1992:- "7. Original jurisdiction of the Court of District Judge.- Subject to any law for the time being in force, the original jurisdiction of the Court of the District Judge in civil suits and proceedings shall be without limit of the value thereof excepting in the Karachi Districts where the original jurisdiction in civil suits and proceedings of the value exceeding five lac of rupees shall be exercised by the High Court.
Provided that the civil suits and proceedings of the value not exceeding five lacs of rupees in respect of the Karachi Districts pending in the High Court immediately before the commencement of the Sindh Civil Courts (Amendment) Ordinance, 1991 shall be disposed of by the High Court."
6. There is clear exception regarding Karachi Districts in section 7 of Sindh Civil Courts Ordinance, 1962 which envisages that in civil suits the original jurisdiction exceeding five lacs of rupees shall be vested in the High Court. In this section, term Karachi District or'Division has not been used but instead of that term "Karachi Districts" was twicely used which express the intention of the Provincial Legislators that they have accepted Karachi as not one district but as several districts. In the circumstances, to exclude District Malir from the term Karachi Districts will neither be justified nor practical.
7. Learned Assistant Advocate General, Sindh has supported view of the Counsel for the plaintiff by saying that District Malir falls within the term "Karachi Districts" and that this Court has jurisdiction to entertain all suits on its original side pertaining to the territorial limits of District Malir. He has also invited my attention to the fact that learned District and Sessions Judge of District Malir is exercising the same jurisdiction, territorial as well as pecuniary as of the other four District and Sessions Judges of Districts East, West, South and Central. If this is the position, then if this plaint is returned to the plaintiff for presentation to the competent Court having proper jurisdiction, it cannot be filed in the Court of District Judge, Malir as his pecuniary jurisdiction is limited upto Rs.
5,00,000/-. It is settled principle that any law taking away jurisdiction of the Court is to be strictly construed.
Mr. Khalilur Rehman, Advocate for the plaintiff has also relied upon section 120 of the Code of Civil Procedure through which application of sections I6, 17 and 20 of CPC are excluded from its application before the High Court while exercising its original civil jurisdiction. He has also relied upon the case of this Court West Pakistan Industrial Development Corporation v. Messrs Fateh Textile Mills Ltd. (PLD 1964 Karachi 11). There is no need for examining this argument as in my considered view, the newly-created District Malir being part of "Karachi Districts" falls within the territorial jurisdiction of this Court for the purpose of original civil jurisdiction. In these circumstances, C.M.A. No. 28/94 was dismissed by iny said short order.