Petitioner, Mst. Kanza, has assailed the orders of respondent No.1, learned Judge Family Court, Lahore, dated 20-7-2001 and 8-7-2002 both passed on the applications of respondent No.2, Syed Zulfiqar Ali Shah, during the proceedings in the suit for jactitation of marriage filed by the petitioner against respondent No.2. Vide order dated 20-7-2001 respondent No.1 had allowed the application of respondent No.2 that witnesses of respondent No.2 who could not be produced by respondent No.2 may be summoned through the Court. Vide order dated 8-7-2002 respondent No.1 allowed the application of respondent No.2 for re--summoning of C.W.1, Albert Akhtar Bhatti, Advocate/Oath Commissioner, for again recording his examination-in-chief as well as allowing respondent No.2 to cross-examine the above mentioned witness.
2. Learned counsel for the petitioner has argued that respondent No.2 had been adopting dilatory tactics throughout the proceedings and causing inordinate delay; that on 21-4-2001 ex parte proceedings were initiated against respondent No.2 by respondent No.1 against which respondent No.2 filed an application which was accepted and the order of ex parte proceedings was set aside; that against this order the petitioner had filed earlier Writ Petition No. 10209 of 2001 which had been disposed of by this Court on 25-6-2001 with the observation that both parties shall adduce all their evidence expeditiously and the case shall be decided before the summer vacations i.e. By 31-7- 2001; that the petitioner completed her evidence on 16-7-2001 but respondent No.2 did not produce all his witnesses and applied on 16-7-2001 for summoning as many as 12 witnesses through the Court, that the petitioner had resisted this application on the ground that according to section 11(2) of the Family Courts Act, 1964 respondent No.2 was bound to furnish within three days of framing of issues a list of witnesses that he wished to have summoned through the Court and respondent No.2 had not filed this application within time, rather it had been filed after more than 8 months after the framing of issues and respondent No. 1 had no authority to summon the witnesses through the Court on such a belated application. In this behalf learned counsel has relied on the judgment cited as Muhammad Yasin v. Mst. Rafia Bibi alias Rafia Sultana and another PLD 1983 Lahore 377. It has been further argued that when the witnesses of respondent No.2 were summoned through the Court, Albert Akhtar Bhatti, Advocate/Oath Commissioner appeared and recorded his statement as C.W.1 in the presence of both the parties to which respondent No.2 did not raise any objection and thereafter counsel for the petitioner cross-examined the said witness to which also counsel for respondent No.2 did not raise any objection and thereafter counsel for respondent No.2 requested respondent No.1 to give him an opportunity to cross-examine C.W.1.
Which application was opposed by the petitioner's counsel on the ground that the aforesaid witness was in fact a scheduled witness of respondent No.2 and since he could not produce him in the Court himself the Court had summoned him which did not confer any entitlement on respondent No.2 to cross-examine his own witness. However, respondent No.1 accepted the application of respondent No.2 in order that his examination-in-chief may be recorded again and counsel for respondent No.2 may also cross-examine him. It is argued that both the orders are patently without jurisdiction and respondent No.1 acted illegally in allowing both the applications of the petitioner.
3. As regards failure of the petitioner to assail the order dated 20-7-2001 within reasonable time learned counsel for the petitioner has argued that there is no limitation for assailing a void order and it need not be challenged and any superstructure raised on a void order would fall and order may be challenged at any time even in collateral proceedings. Reliance has been placed by the learned counsel in this behalf on the following judgments:-- Haji Muhammad Yunus v. Land Acquisition Officer and Assistant Commissioner, Shahdadpur 2000 YLR 1185, Wajahat Hussain v. Aftab Ahmed and others 2001 MLD 1101, The State through A.-G., Sindh v. Azizullah 1995 MLD 1405, Premier Tobacco Industries Limited v. Deputy Registrar of Trade Marks, Trade Marks Registry and another 1995 MLD 1464, National Bank of Pakistan and 7 others v. Emirates Bank International Limited and another 1993 CLC 2009, Muhammad Mahroof v. Mst. Mahnoori and 2 others 1997 CLC 1291, Habib Bank Limited v. Messrs Qayyum Spinning Limited and others 2001 MLD 1351, Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738.
Learned counsel has vehemently argued that both the orders merit to be set aside as they have been passed arbitrarily and without jurisdiction.
4. Learned counsel for respondent No.2 has vehemently opposed the petition firstly on the ground that interlocutory orders passed by the Family Court are not appealable and the writ petition does not lie against the same; that the order dated 20-7-2001 was not ailed by the petitioner's counsel within prescribed time, therefore, it has attained finality; that the witnesses of respondent No.2 had already been summoned by the Court and the petitioner's counsel had also cross-examined them which constitutes waiver of his assertion that they could not be called, therefore, even on this score he is estopped from assailing the order; that the witnesses of respondent No.2 who were summoned through the Court were official witnesses and it was necessary that they should be summoned through the Court in order that the matter be decided on the basis of their evidence and that Family Court is empowered to take all steps necessary to ensure that substantial justice is done, therefore, there is no illegality in the order of respondent No. 1 dated 20-7-2001 and it is not without jurisdiction; that even a void order must on assailed at proper time otherwise it would hold the field if it had been acted upon with the participation of party. Reliance has been placed on the judgment cited as Muhammad Raz Khan v. Government of N.-W.F.P. And another PLD 1997 SC 397.
5. As regards the second order impugned by the petitioner i.e. The order dated 8-7-2002 through which C.W.1 Albert Akhtar Bhatti has been allowed to be re-- summoned for cross-examination by counsel for respondent No.2, it is argued that since C.W.1 had appeared as Court-witness both the parties were entitled to cross-examine him and that while he was being examined by the learned counsel for respondent No.2, learned counsel for the petitioner created impediments and therefore, counsel for respondent No.2 could not cross-examine C.W.1 who is an important material witness in the case and if the order for his cross-examination was disallowed respondent No.2 would suffer irreparable loss. Learned counsel has relied on the judgments cited as Chintamon Singh v. King- Emperor 7 CLJ. 177 and Emperor v. Pita and other ILR 47 All. 147 to argue that if a witness is summoned by the Court both sides have a right to cross-examine the witness.
6. I have heard the learned counsel for the parties and I have also gone through the impugned order of respondent No.1. The order for summoning the witnesses of respondent No.2 through the Court was announced on 20-7-2001 but the petitioner did not assail the same. The witnesses were summoned in the Court and the learned counsel for the petitioner cross-examined them which would amount to waiver of his claim that the order for their appearance was illegal. Reference is made to the judgment cited as Sarfraz v. Muhammad Aslam Khan 2001 SCMR 1062 that an aggrieved person is required to initiate proceedings within reasonable time against a void order and when the order had achieved finality, the jurisdiction of the Court cannot be invoked. It has been held in the case cited as National Bank of Pakistan v. Khairpur Textile Mills Limited 2001 CLC 1187 that clear distinction I exists between illegal and void orders and illegal orders must be set aside through appropriate proceedings before proper forum presented within time stipulated by statute of limitation while a void order can be ignored.
The order dated 20-7-2001 impugned by the petitioner would at best fall in the category of illegal orders and, therefore, appropriate proceedings for setting it aside were required at appropriate time. In the case cited as Ehsan ul Haq v. Zulfiqar Khan 2001 MLD 890 it has been held that void order is a species of illegal order, where the remedies are available against a void order, the same cannot be set' aside in collateral proceedings merely on the, ground that it could not have been lawfully passed. I, therefore, hold that the petitioner', cannot assail the order dated 20-7-2001 through this writ petition since this order had already been acted upon and the petitioner did not assail it at appropriate time.
7. Regarding the, order dated 8-7-2002 whereby C.W.1 has been allowed to be re--summoned and petitioner---s counsel has been allowed the opportunity to cross-examine C.W.1, the name of this witness appeared in the schedule of the witnesses of respondent No.2, and he was summoned through the Court since respondent No.2 could not produce him. In such circumstances strictly speaking he was a defence witness of respondent No.2 and not a Court-witness. The examination- in-chief of such witness may be conducted by the counsel for the party who had cited him as witness even though he may have been summoned though the Court while the other side has a right to cross-examine the witness. The argument of learned counsel for the petitioner that the aforesaid witness is not a Court-witness appears to be sound and respondent No.2 can conduct the examination-in-chief but it is the right of petitioner's counsel to cross-examine the aforesaid witness. Learned counsel has stated that he did raise this objection at the time that the said witness was produced in the Court regarding his examination or cross-examination but the same was not considered and that is why he was constrained to move this petition.
8. In view of the above discussion, this petition is disposed of with the observation that if the examination of the aforesaid witness Albert Akhtar Bhatti was not properly conducted, the Court may resummon him. Respondent No.2 may conduct the examination-in-chief while the petitioner may cross-examine him and if respondent No.2 seeks production of any record within the possession of the aforesaid witness he may` also get the same produced while examining him but respondent No.2 has no right of cross-examination since the aforesaid witness is a witness of respondent No. 2 who has been summoned through the Court.
9. Before parting with the matter I would advert to the provisions of the Family Courts Act, 1964 which is a special law enacted to provide facility to the litigants in family matters. In the proviso to section 7(2) of the aforesaid Act it is provided that the parties may with the permission of the Court call any witness at any later stage if the Court considers such evidence expedient in the interest of justice. This enabling provision empowers the Family Court to take all steps which it deems necessary to ensure that substantial justice is done. The role of the Family Court is not merely adversary but it is also inquisitorial, therefore, it is within its power to pass any order which may promote the just decision of the case. Albert Akhtar Bhatti may be resummoned, his examination-- in-chief may be conducted by respondent No.2's counsel while petitioner's counsel may cross- examine him and thereafter learned trial Court shall decide the matter expeditiously preferably by 30th October, 2002.