Sunday, 28 September 2014

Family cases must be decided in 6 months

PLJ 2014 Lahore 333
Present: Mahmood Ahmad Bhatti, J.
MEHVISH GILLANI, etc.--Petitioners
versus
W.P. No. 15464 of 2013, decided on 16.1.2014.
----Ss. 5 & 12-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for recovery of dower and maintenance--Suit for declaration cancellation of documents and injunction--Injunctive order--Family Court was directed to decide suit pending before him within two months--Violative of specific direction issued by High Court--Determination--Suit for defendant, challenging entries recorded in Nikah Nama was dismissed--On appeal operation of suit so dismissed was suspended--Family Court, was in such a tearing hurry to stay suit of petitioner regarding dower that he did not wait even for a certified or unattested copy of order High Court, Islamabad--Entries in Niaka Nama are still intact, and have not been declared forged and fabricated to date by any competent Court of law--If Family Courts are allowed to abandon and abdicate their jurisdiction on ground that defendant has also instituted a civil suit regarding entries contained in Nikah Nama, it would provide a stick to defendant in every suit instituted by a lady, on basis of Nikah Nama, to beat her with it--Civil suit usually takes years and years together, while a family suit is a time-limit case in which proceedings are to be carried out on a fast track so as to be concluded within six months, as is mandated under Section 12-A of Family Courts Act, 1964--Therefore, under no circumstances can a family suit be allowed to be temporized or clubbed with a civil suit nor can same be made to be dependent upon outcome of civil suit.   [Pp. 338 & 339] A, B, C, D, E & F
Constitution of Pakistan, 1973--
----Art. 199--It is self-evident and axiomatic that he is subject to supervisory jurisdiction of High Court, and his orders are amenable to judicial review by High Court under Art. 199 of Constitution--On 02.12.2013, he was asked not to be sidetracked so as to conclude proceedings within two months, but he has circumvented aforesaid order by adopting a sophisticated, albeit highly objectionable approach--He has also made a vain attempt to pit and confront one High Court with another High Court, and, that too, without any basis--If he is enjoying vicarious pleasure, it is high time that he was disabused of this notion.          [P. 339] G
Date of hearing: 16.1.2014.
Order
This writ petition has been filed to impugn Paragraph No. 6 of the order dated 17.12.2013 passed by learned Judge Family Court, Multan, whereby he stayed the proceedings in the suit titled `Mehwish Gillani versus Aamir Nasim Sheikh' to the extent of the recovery of dower/Haq-ul-Mehr.
2. Succinctly put, the facts are that Mehwish Gillani, the petitioner and Muhammad Ahmad Aamir, her minor son instituted a suit for the recovery of dower and maintenance on 24.10.2012.
3. On 04.02.2013, Aamir Nasim Sheikh, the defendant/ respondent entered appearance, and his learned counsel took the plea that a stay has already been issued by learned Judge Family Court at Islamabad. To be exact, Aamir Nasim Sheikh had instituted a suit for declaration, cancellation of documents and injunction. He had not denied the solemnization of marriage, but had questioned the entries contained in Columns Nos. 13 & 14 of the `Nikah Nama' dated 02.06.2011. After some time, learned Judge Family Court at Islamabad declined to proceed with the suit on the ground that he lacked the jurisdiction. Ultimately, the plaint was presented to the Islamabad High Court, Islamabadwhich passed a sort of restraining order on 29.11.2013. Thereupon, learned Judge Family Court, Multan virtually adjourned the hearing of the suit sine die to the extent of the claim of Mehwish Gillani for the recovery of dower vide order dated 25.04.2013, making her rush to the Islamabad High Court to seek the clarification of the injunctive order passed by it. On 04.07.2013, it was observed by the Hon'ble Judge of the Islamabad High Court that:-
`Such an order has no concern with the proceedings going on before the learned Senior Civil Judge/learned Judge Family Court, Multan.'
At this stage, it is pertinent to mention here that civil suit `Mian Aamir Nasim Sheikh versus Mehwish Gillani etc.' was finally dismissed by the Islamabad High Court vide order dated 29.11.2013. Resultantly, Mian Aamir Nasim filed RFA No. 170/2013 before the Islamabad High Court, Islamabad. Meanwhile, both Mehwish Gillani and Respondent No. 2 instituted Writ Petition Nos. 8350/2013 and 9505/2013 before this Court, which were disposed of on 02.12.2013 by this Court. It was a consensual arrangement, which finds reflection in the aforesaid order dated 02.12.2013. In any case, the learned Judge Family Court was directed to decide the suit pending before him within two months, focusing on the main suit, without being distracted by the side winds.
4. On 07.12.2013, learned Senior Civil Judge/Judge Family Court, Multan passed a fresh order in the wake of the dismissal of the suit of Mian Aamir Nasim Sheikh pending adjudication before the Islamabad High Court, the relevant portion therefrom reads as under:-
`My learned predecessor vide order dated 25.04.2013 directed the defendant to submit written statement only to the extent of claim of the plaintiffs for recovery of maintenance allowance. Hence, the defendant is directed to submit written statement as a whole including the claim of Plaintiff No. 1 for recovery of "Haq-ul-Mehr". Since a direction has been issued by the Hon'ble Lahore High Court, Multan Bench Multan for disposal of the main case within a period of two months, hence, the defendant is directed to submit written statement.'
5. On 17.12.2013, learned Judge Family Court, Multan passed yet another order. In Paragraph No. 6, it was held by him as under:-
`Vide judgment and decree dated 29.11.2013, the Hon'ble Islamabad High Court Islamabad was pleased to dismiss the suit titled `Mian Aamir Naseem vs. Mst. Mehwish Gillani and others'. As per certificate of learned counsel for the defendant, the order dated 29.11.2013 has been challenged before the Hon'ble Division Bench of Islamabad High Court and the Hon'ble Islamabad High Court was pleased to suspend the operation of impugned judgment and decree dated 29.11.2013. Obviously, an appeal is continuation of the suit. Since, the operation of impugned judgment and decree has been suspended and as such in my humble opinion, as observed by my learned predecessor in order dated 15.04.2013, conducting of further proceedings in respect of recovery of `Haq-ul-Mehr' would be violation of the order dated 17.12.2012 of the Division Bench of Hon'ble Islamabad High Court. In these circumstances, the defendant cannot be required to submit written statement to the extent of recovery of `Haq-ul-Mehr. Written statement to the extent of recovery of maintenance allowance has already been submitted.'
6. As stated above, it is the aforesaid part of the order dated 17.12.2013 passed by learned Judge Family Court, which has been brought under challenge before this Court through the instant writ petition.
7. It is the contention of the learned counsel for the petitioner that the impugned order is violative of the specific direction issued by this Court vide order dated 02.12.2013, by which the learned Judge Family Court was required to focus his attention on the main suit so as to decide it within two months. He was at a loss to understand why the learned Judge Family Court continued to equivocate and attempted to make his orders conform to the orders and directions issued by the Islamabad High Court. He pointed out that to show deference to the order passed by another High Court is one thing, but to make obeisance to the same is quite another. In order to fortify his submissions, he drew the attention of the Court to the Articles 201 and 203 of the Constitution of Islamic Republic of Pakistan, 1973. He forcefully argued that even the order dated 17.12.2013 passed by a Division Bench of the Islamabad High Court would not make any impact upon the proceedings to be carried out by the learned Judge Family Court, Multan not did it prevent him from proceeding with the suit of the petitioner regarding the recovery of dower/Haq-ul-Mehr. To him, Paragraph No. 6 of the order dated 17.12.2013 passed by Respondent No. 1 is a classical example of the colourable exercise of jurisdiction.
8. Respondent No. 2 engaged three counsel, whose submissions were recorded in the Court as follows.
9. Mr. Javed Akbar, Advocate/learned counsel for the respondent contends that the very maintainability of the writ petition is open to question; that the order is not void ab initio; that no injustice has been done to the petitioner; that only the Islamabad High Court, Islamabad is vested with the authority to entertain a suit in respect of the entries contained in the Nikah Nama, and the jurisdiction of all Courts, including learned Judge Family Court, Multan is ousted; that since the petitioner has already submitted to the jurisdiction of the Islamabad High Court, she cannot turn round and question its jurisdiction afterwards. He adds that Mst. Mehwish Gilani did not assail the validity of the order dated 29.11.2013 passed by a learned Single Judge in Chambers, Islamabad High Court, Islamabad which goes to show that she has virtually acquiesced to the same. Learned counsel elaborates that there is no gainsaying that the learned Judge Family Court, Multan is not subordinate to the Islamabad High Court, but in due deference to the order dated 29.3.2013 passed by a learned Single Judge in Chambers, Islamabad High Court, he deferred/put on hold the suit of Mst. Mehwish Gilani vide order dated 15.4.2013. According to him, the aforesaid order passed by the learned Judge Family Court was in consonance with justice, equity and good conscience. Besides, it was intended to avoid the conflicting judgments to be passed by the two competent Courts of law. He concludes his submissions by stating that the learned Judge Family Court did not pass a fresh order, rather, the order dated 17.12.2013 is just a rehash of the earlier orders dated 15.4.2013 and 25.4.2013 passed by the Court. As such, the order dated 17.12.2013 may be regarded as a continuation of those orders.
10. Rana Miraj Khalid, Advocate/another learned counsel for the respondent contends that the petitioner did not challenge the orders dated 15.04.2013 and 25.04.2013, whereby the respondent was ordered to file reply only to the extent of maintenance of the minor. He implies that by acquiescing to those orders, the petitioner now stands estopped from reagitating the same matter. He further argues that the judgment/order dated 29.11.2013 passed by the Hon'ble single judge in chamber, Islamabad High Court, on the basis of which the learned Judge Family Court, Multan ordered Respondent No. 2/defendannt to submit written reply to the whole of the suit, has already been suspended in the RFA No. 170/13, with the result that the latter order now holds the field and the learned Judge Family Court has rightly passed the impugned order.".
11. Mirza Aziz Akbar Baig Advocate, learned counsel for Respondent No. 2 adds that the order dated 29.3.2013 passed by the Islamabad High Court was explained and clarified by it in the subsequent order dated 04.07.2013. The effect of the latter order was that the proceedings before the learned Judge Family Court Multan to the extent of Haq-ul-Mehr of Mst. Mehwish Gilani were stayed, while they were to continue to the extent of the recovery of the maintenance of the minor.
12. I have given patient hearing to the learned counsel for the parties, and have also gone through the record appended to the writ petition, with their assistance.
13. It is amazing how a seasoned Judicial Officer donning the mantle of learned Judge Family Court has so blithely abdicated his jurisdiction, working on the assumption that he has been stopped from exercising it by a learned Judge of the Islamabad High Court, Islamabad. In the first place, there was no basis whatsoever to entertain such a notion. He and he alone was to decide whether he had got jurisdiction in the matter or not. And for this to determine, he was to turn to Section 5 of W.P. Family Courts Act, 1964 as well as the Schedule thereto. Unless there is a final determination by a competent Court of law as to the genuineness or otherwise of the entries contained in the `Nikah Nama' the learned Judge Family Court Multan was to proceed apace in a suit for the recovery of Haq-ul-Mehr/dower. It was altogether overlooked by him that the solemnization of marriage between the Defendant/ Respondent No. 2 and the plaintiff/writ petitioner is not in dispute. It is also an admitted fact that she bore him a child by the name of Muhammad Ahmad Aamir.
14. It bears repeating that the petitioner and her son instituted the suit for recovery of maintenance and dower before the learned Judge Family Court, Multan on 24.10.2012. On the other hand, respondent/defendant instituted a suit for declaration before the learned Senior Civil Judge-I, Islamabad on 31.01.2013. The plaint in the latter suit was returned on 25.03.2013, whereafter the defendant instituted the said suit before the Islamabad High Court, Islamabad on 28.03.2013. I would refrain from dwelling upon the same lest it should prejudice the case of either of the parties. Be that as it may, the suit of the respondent/defendant challenging the entries recorded in the Nikah Nama was dismissed. And on the appeal operation of the suit so dismissed was suspended. This would lead to the only inescapable conclusion that the things are back to square one. I am at a loss to understand why the learned Judge Family Court, Multan was in such a tearing hurry to stay the suit of the petitioner regarding dower that he did not wait even for a certified or unattested copy of the order of the Islamabad  High Court, Islamabad passed by it on 17.12.2012. How could he comprehend the implications, ramifications and overtones of an order, which was not before him? To put it simply, the entries in the Niaka Nama are still intact, and have not been declared forged and fabricated to date by any competent Court of law.
15. There is yet another aspect of the matter under consideration. If the Family Courts are allowed to abandon and abdicate their jurisdiction on the ground that the defendant has also instituted a civil suit regarding the entries contained in the Nikah Nama, it would provide a stick to the defendant in every suit instituted by a lady, on the basis of Nikah Nama, to beat her with it. The net result would be that all Family suits would be put in cold storage or put on hold indefinitely. The law of the land would never countenance such an absurdity. Furthermore, a civil suit usually takes years and years together, while a family suit is a time-limit case in which proceedings are to be carried out on a fast track so as to be concluded within six months, as is mandated under Section 12-A of the W.P. Family Courts Act, 1964. Therefore, under no circumstances can a family suit be allowed to be temporized or clubbed with a civil suit nor can the same be made to be dependent upon the outcome of the civil suit.
16. On the face of it, Paragraph No. 6 of the order dated 17.12.2013 passed by Respondent No. 1, Judge Family Court, Multan is the result of colorable exercise of jurisdiction. It is also a case of abdication of jurisdiction on his part. In order to streamline the proceedings pending before him, Paragraph No. 6 of the order dated 17.12.2013 is liable to be struck down and the same shall not be deemed to be forming part of the same, with the result that the suit instituted by the petitioner shall be tried as a whole and not in piecemeal.
17. Before parting with this order, I cannot help observing that the learned Judge Family Court, Multan should always bear in mind Articles 189, 201 and 203 of the Constitution of Islamic Republic of Pakistan, 1973. It is self-evident and axiomatic that he is subject to the supervisory jurisdiction of this Court, and his orders are amenable to judicial review by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. On 02.12.2013, he was asked not to be sidetracked so as to conclude the proceedings within two months, but he has circumvented the aforesaid order by adopting a sophisticated, albeit highly objectionable approach. In a way, he has attempted to run with the hare and hunt with the hounds. He has also made a vain attempt to pit and confront one High Court with another High Court, and, that too, without any basis. If he is enjoying vicarious pleasure, it is high time that he was disabused of this notion.
18. For what has been stated above, this writ petition is allowed. In order to avoid unpleasantness, the family suit titled `Mehwish Gillani and another vs. Aamir Nasim Sheikh' for the recovery of maintenance and dower pending adjudication in the Court of Senior Civil Judge/Judge Family Court, Multan is hereby withdrawn; and the learned District Judge, Multan shall entrust the same to another learned Judge Family Court, Multan who would conclude the proceedings before the 15th March, 2014, without fail and without being deflected and sidetracked by any miscellaneous applications already moved or to be made by any of the parties to the suit.
(R.A.)  Petition allowed

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