In a family suit brought by Mst. Hasina Mai d/o Muhammad Ramzan against her husband Nadir Hussain for dissolution of marriage on 18-6-1995, the defendant was served for 5-7-1995. On that date, he put in appearance in the Court but the learned Judge Family Court who was seized of the matter was on leave and, therefore, the case was adjourned to 19-7-1995 by the learned Duty Judge. On that date, the defendant failed to turn up in person or through his counsel. The first call in the case was made at 9-17 a.m. The case was kept in waiting. He again took up the case at 3-27 p.m. And after observing that the Court time was about to be over and it would be useless to wait any longer, struck off the defence of the defendant and adjourned the case to 10-9-1995 for an effort to effect compromise or reconciliation between the parties and also for recording the evidence of the plaintiff.
2. It is interesting to note that in his Urdu order, the learned Judge observed that nobody had turned up on behalf of the defendant for giving a plausible explanation for the failure of the defendant to put in his written statement and submit the list of witnesses nor had any request been made for adjournment. The learned counsel for the plaintiff objected to any adjournment in this behalf by the Court itself contending that since the matter -was a family dispute and the defendant had already availed of reasonable and sufficient time for the submission of written statement, no' further adjournment could be allowed. The learned Judge Family Court found the contentions of the learned counsel for the plaintiff reasonable and came to the conclusion that the defendant had failed to submit his written statement and list of witnesses without there being any good reason there for in spite of availing of sufficient time for the purpose. The learned Judge Family Court further observed that there was no course open for the Court except to strike off the defence of the defendant and put an end to his right of filing written statement because doing otherwise and granting a further adjournment to the defendant, would amount to putting a premium on the carelessness and negligence of the defendant. He sought support from the following authorities in arriving at this conclusion:--- 1991 CLC 539.
1983 SCMR 619 PLD 1969 SC (sic)
PLD 1987 SC (AJ&K) 127 PLD 1991 Pesh. 25 NLR 1982 CIJ (sic)
3. The defendant Nadir Hussain filed this writ petition alleging inter alia that 19-7-1995 was the first date for the submission of written statement and the petitioner had not at all availed of any opportunity or sought any adjournment earlier for the submission of written statement. According to him, the learned Judge Family Court was on leave on 5-7-1995 and the Reader had given the petitioner to understand that the next date in the case was 20-7-1995 but on 20-7-1995 when he attended the Court, he came to know that the matter had been taken up on 19-7-1995 and the Reader had, given him a wrong date. The petitioner claimed that the order passed by the Judge Family Court in this behalf was illegal arid without jurisdiction and was, therefore, liable to be set aside.
4. A perusal of the certified copies of the various documents including the impugned order supports the allegations in the writ petition. I fail to understand as to how the learned Judge Family Court observed that the defendant had failed to avail of sufficient time allowed to him for the submission of written statement. In fact the defendant had put in appearance in person on 5-7- 1995. There is nothing on record to suggest that the defendant had sought any adjournment. On the other hand, it is abundantly clear from the order dated 5-7-1995 that the learned Judge was on leave and the case was, therefore, adjourned to 19-7-1995. The learned Judge, therefore, entered into an exercise in futility by making observations in this behalf. It appears that tie did riot apply his mind to the facts of the case and was carried away by the objection alleged to have been raised by the learned counsel for the plaintiff that since it was a family matter, no adjournment should be, allowed without there being any sufficient cause for the same.
5. It may be observed with concern that the authorities relied upon by the learned Judge Family Court have no bearing what so ever on the facts of the case or point under consideration. I really fail to understand as to why the learned Judge Family Court considered it worth while to make a mention of all these authorities without going through the same. It may not be out of place to mention here that PLD 1969 SC ends at page 651 and thereafter it contains Journal section. There is as such no page bearing number 1994 therein. Similar is the position with NLR 1982 CLJ which has its last page bearing number 624. These authorities were obviously misquoted.
6. 1991 CLC 539 (Muhammad Ismail and 2 others v. Muhammad Din) is in respect of a pre-emption matter and deals with inter alia the provisions of Order 17, rule 3 of the C.P.C. Similar is the case with 1983 SCMR 319, PLD 1987 SC (AJ&K) 127, PLD 1991 Pesh. 25, 1993 CLC 1325 and 1989 CLC 1575 in that they all pertain to the interpretation and application of the provisions of Order 17, rule 3, C.P.C.
Which obviously had nothing to do with the facts of the case in hand because these provisions are attracted only where any party to the suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed. It is a bad practice to cite authorities or seek assistance there from without going through the same and the learned Judge Family Court is better advised to discontinue this practice forthwith.
7. The better course for the Judge Family Court would have been, as suggested by the learned counsel for the petitioner, to have proceeded against the defendant ex parte. He did not do so and instead put an end to the right of the defendant to submit his written statement and list of witnesses. This course was obviously unwarranted and uncalled for. The learned counsel for the respondent has also not been able to come to the rescue of the Judge Family Court for justifying the passage of the impugned order. The provisions of subsection (5) of ' section 9 of the Family Courts Act, 1964 are vety clear. It is provided therein that if the defendant fails to appear on the date fixed by the Family Court, the Family Court may proceed ex parte. In the proviso, it is given that if the defendant appears on the adjourned date of hearing or before such hearing and assigns good cause for his previous non-appearance, he may; upon such terms as the Family Court directs, be heard in answer to suit as if he had appeared on the day fixed for his appearance. The mere fact that the date was fixed for the submission of written statement and list of witnesses, should not have carried away the Judge to putting an end to the right of the defendant to submit his written statement. It is claimed that the petitioner had moved an application for setting aside the ex parte proceedings against him but the learned Judge Family Court refused to entertain the same. Such an application is available on the present file but there is nothing to suggest that it had in fact been moved before the learned Judge Family Court. Be that as it may. I have no doubt in my mind that the procedure adopted by the learned Family Court was not justified in law and the impugned order cannot sustain. '
8. The result is that this writ petition is accepted and the impugned order is set aside without any order 'as to costs. Learned Judge Family Court shall allow the defendant/petitioner to file his written statement and then proceed with the case in accordance with law.
9. As agreed by the learned counsel for the parties, the Judge Family I Court shall dispose of the matter within three months from the date on which a copy of this order is received by him even if he has to proceed therewith from day-to-day.