Through the instant writ petition the petitioner has challenged order-dated 11-6-1996 by which the learned Judge, Family court, Lahore rejected application filed under Order VII, Rule 11, C.P.C. By the petitioner.
2. The brief facts of the case are that Mst. Robing Shaheen respondent No.2 filed a suit for recovery of Rs. 20,000 as prompt dower in the Court of Judge, Family Court, Lahore. The petitioner filed an application under Order VII, Rule 11, C.P.C. In the same Court for rejection of the plaint on the ground that the instant suit for prompt dower was not maintainable in its present form as the contents of the plaint show the satisfaction of the dower and nature of the claim put-forward by the plaintiff- respondent has been chaf1ged from dower to recovery of articles, therefore, the said suit does not fall within the exclusive jurisdiction of the Family Court and was liable to be dismissed. The learned Judge, Family Court vide order dated 11-6-1996 rejected this application being devoid of any force.
The contention of the applicant/petitioner was that according to the contents of the plaint the respondent should have filed a suit for recovery of articles instead of suit for dower. It was observed that it was a matter of evidence of the parties and can be thrashed after thorough examination of the evidence produced by the verities as the law of limitation and res judicata being mixed question of law facts cannot be decided without recording evidence of the parties and a bare perusal of the plaint shows that the plaintiff had cause of action. Therefore, the learned Judge, Family Court rejected the application filed under Order VIi, Rule 11, C.P.C.
3. I have heard learned counsel for the parties and perused the plaint. In para. 2 of the plaint, the respondent/plaintiff has averred that 4 tolas of gold ornaments fixed on the occasion of Nikah were given to Per and later on the same were snatched by the petitioner/defendant and kept in pis own custody and in this way he has failed to pay the said ornaments and amount of dower notwithstanding the fact that the respondent/plaintiff had demanded the same. The marriage stands dissolved vide divorce deed dated 17-1-1996 by the petitioner. A bare perusal of the Nikahnama placed on the record shows that in column No. 12, the date of marriage is written as 25- 12-1987, in column No. 13 the dower money is recorded as Sharee Rs. 500 and in column No. 16 against the entry whether in lieu of full dower or part of dower if some property is given, the details of that property or its value which has beet, agreed between the parties, it is recorded:--- The respondent/plaintiff has averred in her plaint about these ornaments. It is stated that the same were given to her in lieu of Haq Mehr recorded against column No. 16 of the Nikahnama.
4. The first question whether Code of Civil Procedure applies to the Family Courts Act, 1964 or not.
The Family Courts Act is a special law and it provides, special procedure to the Family Court established under the Family Courts Act, 1964. The Procedure given in this Act, at certain stage" i.e. For presentation of plaint, written statement, the schedule deviates from hard and fast rule framed under the Code of Civil Procedure. Therefore, iii can be easily understood that the intention of Legislature is to make the famiky casks easier, speedier and not to be stuck down under the strict, hard and fast rules as envisaged by the Code of Civil Procedure. Section 14 of C.P.0 provides one appeal against decision or decree passed by the Family Court and certain decrees are not appealable. The proceedings under Code of Civil Procedure are apart under section, 17 of the Family Courts Act, 1964. This section follows as such:--- "17. Provisions of Evidence Act and Code of Civil procedure not to apply.--(1) Save as otherwise expressly provided by or finder this Act, the provisions of the Evidence Act, 1872, and the Lode of Civil Procedure, 1908 (except sections 10 and 11) shall not Apply to proceedings before any Family Court.
(2) Sections 8 to 11 of the Oaths - Act, 1873 shall apply to all proceedings before the Family Courts."
The provisions of this section are itself very clear for interpretation and it reflects the intention of the Legislature that the Act has created; Special ' Courts, for family matters and for the decision of those matters. The provisions of Code' of Civil Procedure and the Evidence Act (Qanun-e- Shahadat) generally are not applicable to the cases being tried under the Family Courts Act. The intention of the Legislature is that the Court has to regularise its proceedings through a special procedure laid down by the Act itself and makes the procedure easier and gives more room to the parties to settle their disputes amicably And the Courts cannot remain silent, spectator, tied by the technicalities of law and the deterrence of administration of justice. The provisions of res judicata are applicable to the Family Courts but the provisions of Order VII Rule 11, C.P.C. Are not applicable to the proceedings before a Family Court, learned counsel has conceded before this Court that the provisions of Order VII, Rule 11, C.P.C. Although not applicable but still he can agitate the same under section 5 of the Family Courts Act to challenge its jurisdiction. Se---coon 5 of the Family Courts Act regulates the jurisdiction of the Family Courts established in each district by the Government and on such other places as it mg deem necessary. Section 5 thereof reads as under:--- "5. Jurisdiction. ---Subject to the provisions of the Muslim Firmly Laws Ordinance, 1961, and the Conciliation Courts Ordinance, entertain, hear and adjudicate upon matters specified in the Schedule the Schedule specifies the following category of cases:----(1) Dissolution of marriage.
(2) Dower.
(3) Maintenance.
(4) Restitution of conjugal rights. (5) Custody of children.
(6) Guardianship.
(7) Jactitation of marriage.
Therefore, the Legislaturre has omitted the provisions of Order VII, Rule 11, P.C. To be read with section 5 of the Family Courts Act. Since the Schedule given under the Manual off Muslim Family Laws (section 5 of the Family Courts pct) provides that a suit ffor recovery of dower can be filed in the Family Court, therefore, by stating that from the perusal of the plaint, a cause of action is not disclosed is not convirncing. The Family Court has rightly rejected the application under Order 'VII, Rule 11, C.P.C. Giving its finding that the nature of the dower, or whether it is prompt or not, whether it is suit for recovery of articles, or a suit for recovery of dower, can only he determined after examination of the evidence of the parties.
5. The second question whether an interim order which can be rectified in appeal can be challenged in writ jurisdiction. In every statute the Legislature reflects its own intention, In Family Courts Act, 1964, the intention of the Legislature is not to carry every case to the High Court it rather intends, to reduce further litigation-. In various pronouncements of this Court as well as Hon'ble Supreme Court it has been held that in comparison to general law the special law regulates its own proceedings. It has also been held that the Family Court is not a Court subordinate to the High Court and section 17 of Family Courts Act bars application of Code of Civil Procedure of family matters. Therefore, while exercising the extraordinary jurisdiction to interfere in the interlocutory order passed by the Family Court, this Court has to remain more cautious and judge from all corners whether any challenge made by the party can be undone by way of appeal. Even in the present case after framing of the issues and producing evidence the decree is challengeable in appeal and all points can be attacked in the Memorandum of Appeal.
6. For the foregoing reasons, I see no justification to interfere `in' the interlocutory order passed by the Family Court and have found out no infirmity in the impugned order therefore, this petition is dismissed in limine.
7. This also disposes of C.M.No. 1 of 1996 and C.M.No. 2 of 1996.