' This writ petition arises out of a matrimonial matter. A learned Family Judge decreed the suit for dissolution of marriage filed by respondent No, 2 (wife of the petitioner), in absence of the petitioner through ex parte decree dated 8-74976. The petitioner moved an application before the learned Family Judge under rule 13 of the West Pakistan Family Courts Rules, 1965. This application was dismissed on 16-10-1976. The petitioner then filed an appeal under section 14 of the West Pakistan Family Courts Act, 1964 before the learned District Judge, which was dismissed vide order dated 27-10-1976 on the ground that such an appeal against the refusal to set aside an ex parte decree was not competent under section 14 of the Act. This order has been impugned in this writ petition.
2. Learned counsel for the petitioner contends that the order of the learned Family Judge refusing to set aside the ex parte decree for dissolution of marriage is different from and independent of the earlier order resulting in a decree for dissolution of marriage ; and thus, the impugned order of the learned Family Judge would be treated as a decision covered by subsection (1) of section 14 of the Act, therefore, the appeal was competent.
3. Learned counsel for the respondent has argued that decree for dissolution of marriage on any ground other than one specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939 would not be appealable because of the bar contained in subsection (2) of section 14 of the Act. And as in this case the suit was not decreed on the said ground but on ground of khula', therefore, the appeal was not competent.
4. Section 14 of the West Pakistan Family Courts Act, 1964 reads as follows : "14.-(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable :-
(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge ; and
(b) (to the District Court, in any other case). (2) No appeal shall lie from a decree by a Family court-
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (via) of section 2 of the Dissolution of Muslim Marriages Act, 1939 ;
(b) for dower not exceeding rupees one thousand ;
(c) for maintenance of rupees twenty-five or less per month."
5. No doubt decree for dissolution of marriage for any reason other than that specified in section 2(viii) (d) of the Dissolution of Muslim Marriages Act, 1939 would not be appealable because of the bar contained in clause (a) of subsection (2) of section 14 of the Act ; but in the present case the appeal moved before the learned District Judge was not from any decree for dissolution of marriage. The appeal was against the order dated 16-10-1976 whereby the learned Family Judge had refused to set aside an ex parte decree. This order of refusal to set aside an ex parte decree is undoubtedly independent of and subsequent to the decree for dissolution of marriage. If the petitioner would have filed two appeals ; (1) against the decree for dissolution of marriage dated 8-7-1976 ; and (a) against the order dated 16-10-1976 refusing to set aside the ex-parte decree, then the first mentioned appeal would not be competent because of the bar contained in section 14(2)(a) of the Act. The second mentioned appeal would be competent because it would not be against the decree of dissolution of marriage but against a decision by the learned Family Judge refusing to set aside the earlier decree. It was pointed out in Mst. Rushda Zareen v. Muhammad Saleh (1). That the word "decision" and "decree" are o be given due meaning when interpreting subsection (1) of section 14. It was accordingly held that a decree for dissolution of marriage on ground of khula' was not appealable
(1) PLD 1976 Lah. 1327 ' but a decision with regard to the dower was appealable under section 14(1) of the West Pakistan Family Courts Act. It was also held in Syed Muhammad Raza Shah v. Sayeda Salma Gilani and another (1), that "the way the words "decree" and "decision" have been used in section 14, shows that the word "decision" should be read as ejusdem generis to the word "decree". If it is so read, it will point out to only such "decrees' (misprint for 'decision') being appealable which finally determine the proceedings before the Family Court". In this case the order dated 16-10-1976 undoubtedly finally determined the question of setting aside the ex parte decree. It was, thus appealable as a 'decision' under section 14(i) of the West Pakistan Family Courts Act. The order of the learned District Judge dismissing the appeal as incompetent, A cannot be upheld. It amounts to refusal to exercise the appellate jurisdiction vested in the District Judge. This petition accordingly is allowed. The impugned order dated 27-10-1976 is set aside as without lawful authority and the case is remanded to the learned District Judge for fresh decision of the appeal in accordance with law. There shall be no order as to costs.
6. Both the parties are directed to appear before the learned District Judge on 27-10-1977.
(1) PLD 1976 Lab. 1015 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.