' Through this Constitution petition the petitioner has challenged order dated 24-10-2001 passed by the learned Judge Family Court whereby the petitioner's right to produce evidence was closed and the subsequent order dated 30-10-2001 whereby the Court rejected the petitioner's application for recalling its earlier order.
2. I have heard the learned counsel for the parties and perused the material on the record. The petitioner is husband of Mst. Rizwana Arshad/respondent No,2. They were married on 29-11-1996.
Subsequently, the relations between the parties' became strained and respondent No,2 went over to the house of her parents. She filed the following four suits against the petitioner:
(i) for dissolution of marriage,
(ii) for recovery of dower,
(iii) for recovery of articles of dowry and
(iv) for recovery of maintenance allowance.
' All the cases are pending before learned Family Court, Lahore/ respondent No,
1. The suits were consolidated and the trial Court framed consolidated issues and fixed the case for evidence of respondent No,2. She produced the evidence in the shape of her own affidavit and affidavits of her witnesses. They were cross-examined by the petitioner. The evidence of respondent No,2 was concluded on 29-6-2001 and the Court fixed 6-9-2001 for the petitioner's evidence. On the said date the Presiding Officer was on leave and the case was adjourned for 26-9-2001. On the said date, the petitioner sought an adjournment for producing evidence. The case was adjourned for 24-10-2001 with a note that it was the last opportunity for the petitioner's evidence. On 24-10-2001, an application was submitted on behalf of the petitioner's counsel for adjournment on the ground that the learned counsel was unwell. This application was not decided on its own merits but adjournment was refused on the sole consideration that earlier a number of opportunities were given to the petitioner for production of evidence but the needfull was not done. This appears to be contrary to the record. As mentioned above, the first date given to the petitioner for producing his evidence was 6-9-2001, when the Presiding Officer was on leave. Thereafter, only one opportunity was given t the petitioner for producing his evidence but for some reason he was unable to produce evidence and his request for adjournment was allowed. There was hardly any justification for the Court to note in the interim order dated 26-9-2001 that the petitioner was given last opportunity to produce his evidence on the next date of hearing i,e, 24-10-2001. Anyhow, on the adjourned date, the petitioner's learned counsel was unwell. The petitioner's witnesses were present in the Court. In case the Court was not inclined to adjourn the case, it ought to have recorded the evidence of the witnesses who were present in the Court. There was absolutely no justification to close the petitioner's evidence. This order is likely to cause serious prejudice to the petitioner in all the four cases, which were consolidated and had to be decided together. Similarly, the petitioner's application for recalling order dated 24-10-2001 was wrong) rejected by the Court below vide order dated 30-10-2001 on the erroneous view that the petitioner had lost three opportunities for producing evidence. As explained above, the petitioner had failed to produce his evidence only on one date of hearing, i,e, 26-9-2001. On the next date, i,e, 24-10-2001, the petitioner's witnesses were present but the petitioner's learned counsel was not feeling well.
3. The argument raised bythe learned counsel for the respondent No,2 that the written statement was not personally filed by the petitioner before the Family Court and could not be considered may be raised before the trial Court. Suffice it to observe that the procedural provisions are not to be used as a trap for a party to the proceedings. In the present case, the Family Court had entertained the written statement filed by the petitioner's learned counsel and framed issues in the light of the pleadings of the parties. If the trial Court for any valid reason, comes to a conclusion that the petitioner's written statement cannot be taken into consideration, it can still allow the petitioner another opportunity to file a written statement in accordance with the law.
4. The argument that the petitioner had earlier filed Writ Petition No,16248 of 2001, which was dismissed by another Bench vide order dated 5-9-2001 is of no avail to the petitioner because in the said petition, the petitioner had merely challenged the order whereby list of dowry articles was exhibited. The Court was not inclined to interfere in the matter because the impugned order was interim one, which could not be assailed in writ jurisdiction.
5. For the foregoing reasons, the petition is accepted, the impugned orders, dated 24-10-2001 and 30-10-2001 are set aside with a direction to the trial Court to allow the petitioner a reasonable opportunity to produce his evidence and then decide the cases on merits in accordance with the law.