' This Constitutional petition has been filed to challenge legality of order, dated 31-7-2000 passed by the learned Judge, Family Court, respondent No,1 recalling his earlier order, dated 26-7-2000 whereby right of cross-examination of Shahan Malik, respondent No,2 was closed and the case was fixed for ex parte arguments.
2. Briefly stated the facts giving rise to this petition are that the petitioner was married to respondent No,2 on 20-3-1999 at Lahore in consideration of prompt dower amounting to Rs,4,00,000. Respondent No,2 had agreed that the petitioner would be entitled to receive a sum of Rs,5,000 per month as maintenance allowance and that the jewellery given to the petitioner from the respondent's side would belong to her. The petitioner was also delegated the power of divorce.
Unfortunately, the marital bond could not subsist and ended up in divorce on 18-4-2000.
3. After the marital tie was broken, litigation ensued between the petitioner and respondent No,2.
The petitioner filed three suits in the Family Court, Lahore, The first for recovery of dower amount, the second for maintenance allowance for the period of Iddat and the third for recovery of the dowery articles. On his turn, respondent No,2 filed a suit for restinition of conjugal rights. For the convenience of the parties, all the suits were consolidated by the learned Judge Family Court vide his order, dated 3-6-2000 and the proceedings were conducted in the suit for recovery of prompt dower. The Court framed consolidated issues on 5-6-2000 and started recording evidence. The petitioner produced nine witnesses in support of her claim and herself appeared as P.W.10 on 22-7- 2000 when her examination-in-chief was recorded. On the said date, she could not be cross- examined due to absence of the respondent's learned counsel. The case was adjourned for 26-7- 2000 subject to payment of costs of Rs,1,000 by respondent No,2. On the adjourned date, the petitioner appeared in the Court for the purposes of cross-examination but respondent No,2 did not. The case was repeatedly called out and ultimately the respondent's fright of cross- examination was closed vide interim order, dated 26-7-2000. On 27-7-2000 another counsel was engaged by respondent No,2 who appeared in the Court and stated that he wai _ed to file an application for setting aside order, dated 26-7-2000. Accordingly the application was filed on the same day and the case was adjourned for 29-7-2000 for submission of reply by respondent No,2 as well as arguments. On the adjourned date, the learned Judge Family Court was on leave, hence the case was taken up for hearing on the next working day i,e, 31-7-2000. On the said date the learned Judge Family Court heard arguments, accepted the application and recalled his earlier order, dated 26-7-2000.
4. The petitioner's learned counsel strenuously urged that the learned Judge Family Court was not competent to review his earlier order because no such provision exists in the West Pakistan Family Courts Act, 1964; that even if he was competent to recall his earlier order he ought to have assigned some valid reason which is lacking in the impugned order; that no material was placed on the record by respondent No,2 in support of the averments made in the application; that even the affidavit of respondent No,2 or his learned counsel was not placed on the record; that the conduct of respondent No,2 was not kept in view while allowing the application. The learned counsel relies on the following judgments:---
(i) Mst. Fatima Bibi and another v. Pakistan PLD 1960 (W.P. Lah. 1031, (ii) Agha Muhammad Hassan v.
Mehraj Din PLD 1973 Lah. 95, (iii) Muhammad Ghazanfar v. Ali Haider 1979 CLC 84, (iv) Anwar Masih v. Wailat and :2 others 1983 CLC 2365, (v) Muhammad Habibullah Siddique v. Haji Habib Jaffarali and 2 others 1988 M LD 1143, (vi) Saleem Mirza v. Presiding Officer, Xth Family Court East and 2 others 1989 ALD 228(2), (vii) Province of Punjab, through Collector, Khushab and 2 others v. Malik Ghulam Qasim (1993 CLC 589) and (viii) Mst. Zareena and 5 others v. Syeda Fatima Bibi (PLD 1995 Kar. 388).
5. On the other hand, the learned counsel for respondent No,2 urged that the Family Court not being bound by the provisions of the C.P.C. And the Evidence Act and is free to follow any procedure and pass any order to secure the interest of justice; that the rule that a Court cannot review its judgments or orders in the absence of an express provision for review is applicable to final judgments, decrees or orders and is not applicable to interim orders; that the Court below has passed a well-reasoned and balanced order to secure the ends of justice which does not call for any interference by this Court in exercise of Constitutional jurisdiction; that the application filed by respondent No,2 was duly verified on oath and no separate affidavit was required to be filed in support of the averment made therein; that the hypertechnical objection raised by the petitioner hardly justifies interference by this Court in exercise of Constitutional jurisdiction particularly when the impugned order is passed by a competent legal forum for cogent reasons in order to secure the interest of justice. The learned counsel . Also relies on the rule laid down in the case of Saleem Mirza cited by the petitioner's learned counsel, apart from the following judgments:---
(i) Ejaz Mahmood v. Mst. Humaira and another 1983 CLC 3305, (ii) Khalilur Rehman Bhutta v. Razia Naz and another 1984 CLC 890, (iii) Mst. Saleema Bibi v. Additional District Judge, etc. 1985 CLC 1015.
6. I have carefully considered the arguments raised by the learned counsel for the parties and perused the material on the record. First of all, I would like to refer to the case-law cited by the petitioner's learned counsel. The judgment in the case of Mst. Fatima Bibi and another (supra) lays down that an application for leave to sue Ps pauper must contain particulars required for claims in suits failing which it is liable to be dismissed. In the case of Agha Muhammad Hassan (supra) it was laid down that a Rent Controller and the appellate Court are not empowered under the West Pakistan Urban Rent Restriction Ordinance, 1959 to review their orders. This case pertains to a final order whereby the learned Additional District Judge had dismissed the appeal but subsequently entertained a review petition and allowed it. Obviously, after dismissing the appeal, the appellate Court had become functus officio and was not competent to review its order in the absence of any provision for review in the Ordinance. In the case of Muhammad Ghazanfar (supra) it was held that where a plaintiff seeking restoration of suit on the ground of illness of his daughter had failed to produce material in support of his assertion, the trial Court was justified not to restore the suit. This case had arisen out of a regular civil suit in which' the C.P.C. Was applicable with full force.
Moreover, the High Court had noticed a clear misreading in the judgment of the Appellate Court and set it aside in exercise of revisional jurisdiction. In the case of Anwar Masih it was held that a District Judge was not competent to review his own order passed earlier in appeal, which attained finality notwithstanding the fact that the order was defective or illegal. This case also pertains to a final order passed in appeal and does not relate to an interim order. In the case of Muhammad Habibullah Siddique (supra), it was held that where the plaintiff was directed by the Court to appear personally but failed to attend the Court, the Court was justified to refuse restoration of the suit dismissed for non-prosecution. It was observed that the absence of plaintiff and his counsel on a crucial date had to be explained but no affidavit had been filed by the counsel to . Explain such absence. In this case negligence of the plaintiff as well as his counsel was established on the record. Hence, the trial Court had rightly refused to restore the suit. In the ease of Saleem Mirza (supra) it was held that a decision regarding dismissal of an application for recalling a witness was not appealable under the Act. It was further held that the object of the Family Courts Act is to provide a speedy method of settling family disputes and if the decisions of interlocutory character or orders of the kind involved are to be brought or taken in appeal, this object will be defeated. In the case of Malik Ghulam Qasim (supra), it was held that Thal Development Act, 1949 and Thal Development Authority (Colonization) (Appeal and Revision) Rules, 1973 did not contain any provision for review, therefore, order passed by the Deputy Secretary (Development) HP and EP recalling his own order was without jurisdiction. In the case of Mst. Zareena (supra), it was held that the statement made in the written statement although verified, did not seem to be on oath and could not be treated as evidence in the case. Thus, it is clear that none of the above judgments are relevant regarding review of an interim order or an order of interlocutory nature passed by a: Family Court.
7. The hypertechnical objection raised by the petitioner's learned counsel that the application submitted by respondent No,2 for recalling/cancelling order, dated 26-7-2000 could not have been allowed as it was not supported by an affidavit has not impressed me. By virtue of section 17 of the West Pakistan Family Courts Act, 1964, the provisions of the Evidence Act, 1872 and the Code of Civil Procedure, 1908 except sections 10 and 11 of the Code are not applicable to the proceedings before any Family Court. No specific mode to file a mtscallaneous application is prescribed under the Act or the Rules framed thereunder. Therefore, the Court is free to entertain an application without verification or even a supporting affidavit. However, if the Court requires that the applicant should furnish an affidavit in support of the averments made in the application then the concerned party would be bound to do the needful. It may be mentioned here that .Under the provisions of section 11 of the Act, the Family Court has to record evidence of the witnesses but can permit the evidence of any witness to be given by means of an affidavit. In case of a miscellaneous application, the Court can proceed to record evidence of the parties to decide any disputed question of fact and may call upon a party to submit an affidavit to substantiate his claim or may otherwise accept the application to secure the ends of justice. By making the provisions of the Evidence Act and the C.P.C. Inapplicable to the proceedings before the Family Court the law maker intended to give treater freedom to Family Courts and release them from the cobweb of procedural technicalities embodied in the Evidence Act and the C.P.C. The Act and the Rules framed thereunder have laid down certain express provisions for trial and execution of the decree which have to be followed by a Family Court. Where a matter or a situation is not governed by an express provision of the Act or the Rules framed thereunder the Family Court is free to evolve its own procedure and pass any suitable order for expeditious and just decision of the case. In the case of "Khalilur Rehman Bhutta v. Razia Naz and another" (1984 CLC 890) it was held that the Court has to regulate its own proceedings as the Act does not make provision for every conceivable eventuality and unforeseen circumstances. In the case of Ejaz Mahmood and Mst. Saleema Bibi (supra) it was observed that the Court should proceed on the premises that every procedure is permissible unless a clear prohibition is found against it in the law and that the Court must exercise its own powers to prevent the course of justice being deflected from its true path. Thus, even in the absence of an express provision, the Family Court can dismiss a suit for non-prosecution, restore it, pass an order for ex parte proceedings and recall it, allow amendment of pleadings, additional evidence, appoint a commission for site inspection etc. In each case the dominant consideration must be a fair and impartial trial, ascertainment of truth and expeditious disposal of the case. It is settled law that if a party to a suit leads the Court to follow a particular procedure or does not raise an effective protest qua the procedure followed by a Court then it cannot turn round to assail an order if it goes against him. In the present case the parties to the suit did not press the Court to frame issues and record evidence to decide the disputed questions of fact. Therefore, the Court was free to take into consideration the averments made in the application submitted by respondent No,2 and recall his earlier order for closing the right of cross-examination of respondent No,2. It may be mentioned here that right of cross-examination of parties is preserved under section 11(3) of the Act. It is a valuable right, which cannot be lightly taken away. It is also worth mentioning here that there is no express provision to close the right of a party to examine, re-examine or cross-examine a witness.
However, the Court has inherent power to pass such an order and recall such order keeping in view the justice of the cause and object of its expeditious disposal.
8. The suit for recovery of the dower amount was filed by the petitioner on 19-11-1999. As mentioned above, she also filed two other suits. Respondent No,2 filed a suit for restitution of conjugal rights. All the suits were consolidated vide order, dated 5-6-2000 and recording of evidence commenced on 17-6-2000. The Court had recorded evidence of nine P.Ws. From the petitioner/plaintiff's side and also recorded examination-in-chief of the petitioner/plaintiff on 26-7-2000. On 22-7-2000 Mr. Hakam Qureshi, Advocate appeared on behalf of respondent No,2/defendant and filed memo. Of appearance and stated that he would file his power of attorney on the next date. On the next date i,e, 26-7-2000 respondent No,2/defendant could not reach the Court in time (as stated by him in his application dated 27-7-2000. He was unable to give a power of attorney to Mr. Hakam Qureshi, Advocate and for.That reason he could not appear on his behalf on 26-7-2000. Respondent No,2/defendant primarily gave two explanations for his non-appearance on 26-7-2000. The first is that his maternal-cousin Mst. Farida died at Kamra/Attock on 23-7-2000 and her Qulkhawani took place on 25-7-2000 after the "Asar" prayers. Respondent"No,2/defendant participated in the "Qul" ceremony and came back to his ancestral house at Attock. He further stated that on 26-7-2000 he proceeded for Lahore at 4-00 a.m. Through a private car which went out of order at Peshawar Road Rawalpindi after about 45 minutes of journey. For that reason he could not reach the Court before 4-00 p.m. Or inform/instruct Mr. Hakam Qureshi, Advocate to appear in the Court on his behalf. In her reply the petitioner raised four preliminary objections. The first objection is that the application is not supported by an affidavit, the second that the conduct of the applicant/respondent No,2 is contumacious, the third that the applicant had miserably failed to show sufficient cause or cogent reasons to set aside order, dated 26-7-2000 and the fourth that the Family Court had no jurisdiction to recall a witness under the provisions of the Act. On merits, para of the application was denied for lack of knowledge. It was urged that the applicant had failed to annex proof of his bona fides. Para. Was denied and it was urged that respondent No,2 had failed to convince the Court hat he had taken "diligent steps" to communicate the Court about his non-appearance through production of telegram or communication through telephone. Para. Was denied as being incorrect. It was further stated no order whatsoever can be passed by any Court for production of evidence in the absence of the parties". This is a reply to the averment made by respondent No,2 that 26-7-2000 was not fixed as a date for production of evidence. The order sheet shows that consolidated issues were framed on 5-6-2000 and the case was fixed for the plaintiff's evidence on 17-6-2000. On the said date evidence of three witnesses was recorded.
The case was adjourned for 21-6-2000 and only one witness from the plaintiff's side was examined and the case was adjourned for 24-6-2000 when statements of three more witnesses were recorded. Thereafter, the case was taken up on 29-6-2000 when an application for adjournment was filed on behalf of respondent No,2. The case was adjourned for 30-6-2000. On the said date, the case was adjourned for 1-7-2000 at 10-00 a.m. With an order that if the counsel for the defendant/respondent No,2 did not appear then the right of cross-examination of respondent No,2 shall stand closed. The learned counsel for the parties appeared in the Court on 1-7-2000 and statements of two witnesses were recorded and cross-examination of P.W.9 was reserved. The case was adjourned for 3-7-2000 but on the said date the Presiding Officer was on leave and the case was fixed for hearing on 4-7-2000. P.W.9 was cross-examined on the said date and the case was adjourned for 6-7-2000 for remaining evidence of the plaintiff. On the joint request of the learned counsel for the parties, the case was adjourned for 10-7-2000 for remaining evidence of the plaintiff. On 10-7-2000 an application was filed on behalf of respondent No,2/defendant for taking steps for reconciliation between the parties. The petitioner/plaintiff also expressed willingness to take part in reconciliation proceedings before the Court. The Court noted that reconciliation proceedings had failed, hence the case was adjourned for the plaintiff's evidence for 11-7-2000. On the said date, the plaintiff filed an application for providing her protection through police. The case was adjourned for 14-7-2000 for the respondent No,2's reply. On the said date the Presiding Officer was on leave and the case was taken up on 15-7-2000. The Court accepted the application and directed the S.S.P., Lahore to provide adequate police protection to the person and property of the petitioner/plaintiff. The case was adjourned for 20-7-2000. On that date learned counsel for respondent No,2 was busy before the learned Additional Sessions Judge, Shakargarh, hence the case was adjourned for 22-7-2000. On the said date learned counsel for respondent No,2 made a statement to the following effect:--- {{URDU TEXT}} ' In view of his statement Pir S.A. Rashid, Advocate was allowed to withdraw his power of attorney.
Mr. Hakam Qureshi, Advocate filed memo. Of appearance on behalf of respondent No,2/defendant who sought adjournment on the ground that he was engaged on that very date and was not in a position to cross-examine the plaintiff. Hence the case was adjourned for 26-7-2000 subject to payment of costs of Rs,1,000. On the adjourned date, the case was called out four times during the day and ultimately at 2-15 p.m. The right of respondent No,2 to cross-examine the petitioner/plaintiff was closed and the case was adjourned for 27-7-2000 for ex parte arguments.
On 27-7-2000 Mr. Hakam Qureshi, Advocate filed power of attorney on behalf of respondent No,2/defendant and stated that he wanted to file an application on behalf of respondent No,2. The case was again taken up at 12-30 p.m. When respondent No,2 filed an application for cancellation of order, dated 26-7-2000 which was allowed by the Court vide order, dated 31-7-2000.
8. The above narration of facts shows that the defendant or his learned counsel had been taking part in the proceedings. However, for some reason his learned counsel Pir S.A. Rashid, Advocate withdrew his power of attorney on 22-7-2000 and Mr. Hakam Qureshi, Advocate filed his memo. Of appearance with a prayer for adjournment. The change of the counsel provided a valid ground to adjourn the case. The learned Family Court passed somewhat harsh order by imposing costs of Rs,1,000 to respondent No,2 and observing in the interim order that it was the last opportunity for respondent No,2 to cross-examine the petitioner/plaintiff. On the adjourned date, respondent No,2 could not reach the Court for the reason stated in his application, dated 27-7-2000. It appears that the Court felt satisfied that the reason stated in the application was bona fide and allowed the application to recall interim order, dated 26-7-2000. Being an interim order, the Court was competent to recall or cancel it to secure the ends of justice. It is significant that all the four suits instituted by the parties were consolidated and had to be decided on the basis of the evidence recorded in the dower suit. If respondent No,2 is not allowed to cross-examine the petitioner, he is bound to be seriously prejudiced in all the four cases referred to above. It is also noteworthy that through order, dated 26-7-2000 the learned Judge Family Court had not only closed the respondent's right to cross-examine P.W.10 but also fixed the case for final arguments without affording any opportunity to respondent No,2 to produce his evidence. Respondent No,2 has rightly mentioned in para. ) of his application that without fixing a date for his evidence the impugned order (for arguments) could not have been passed. Even if it is assumed for the sake of argument that the Court had rightly closed right of respondent No,2 to cross-examine the petitioner/plaintiff, the Court was bound to fix a date for recording evidence of respondent No,2. After doing the needfi tl Family Court had to make another effarts to effect a compromise or reconciliation between the parties in compliance with the provisions of section 12 of the Act. It is only after fare the parties to arrive at a or reconciliation that a Family Court can announce judgment and pass a decree. The learned Judge Family Court has conveniently ignored the, provisions of section 12 of the Act. It is settled principle that when lae ovides a thing to be derv! In a particular manner, it ought to be done in that manner or not at all. Looked at from aJ these angles it is clear that order, dated 26-7-2000 is illegal and was rightly recalled by the trial Court in the interest of justice.
9. For the foregoing discussion, I do not find any valid ground justifying interference in the impugned order in exercise of Constitutional jurisdiction under Article 199 of the Constitution of Pakistan. Hence the petition is dismissed.