Friday, 12 February 2016

Interim Order of a Family Judge is not appealable

PLJ 2015 Lahore 599[Multan Bench Multan]
Present: Mahmood Ahmad Bhatti, J.
DILDAR HUSSAIN alias Dilbar--Petitioner
versus
W.P.No. 14503 of 2013, decided on 17.3.2014.
Constitution of Pakistan, 1973--
----Art. 199--Family Courts Act, (XXXV of 1964), S. 17--Civil Procedure Code, (V of 1908), O. VI, R. 17--Constitutional petition--Suit for jactitation of marriage--Restrained from calling as her wife--Application seeking to incorporate number of amendments in written statement was dismissed--Challenge to--Maintainability--Interim order cannot be challenged either in appeal or by filing writ petition--Misconceived and untenable--Conflicting claim made by parties to suits--Validity--It is well-settled that details of documents on which case of a party rests need not be spelled out in pleadings--Pleadings of parties call for no further elucidation--Provisions of Order VI Rule 17, CPC providing for amendment(s) to pleadings are not in terms applicable to family suits--Petition was dismissed.
                                                                                                                        [P. 601] A & B
Mr. Aftab Hussain MalikAdvocate for Petitioner.
Mr. M. Saddique Bhatti, Advocate for Respondent No. 2.
Date of hearing: 17.3.2014
Order
Through this petition, the petitioner has assailed the order dated 05.10.2013 passed by learned Judge Family Court, Chichawatni, District, Sahiwal.
2.  The facts, in brief, are that Mst. Nadia Anwar, Respondent No. 2 instituted a suit for jactitation of marriage, contending therein that she was abducted by Imran and others, who confined her to a house and she was made to sign various papers. The case FIR No. 371/2011 was registered against the accused at P.S. Sadar Chichawatni, District, Sahiwal. She prayed that Dildar, the petitioner herein, be restrained from calling her as her wife. In short, she prayed for a decree for jactitation of marriage.
3.  The petitioner herein entered appearance, filed written statement, controverting all the assertions made by Mst. Nadia Anwar, Respondent No. 2 herein. It was insisted by him that she had entered into the contract of marriage with him with her free consent and of her own accord. In a word, he traversed all the allegations made by the plaintiff against him.
4.  While the trial of the suit was under way, the petitioner herein moved an application seeking to incorporate a number of amendments in various Paragraphs of the written statement filed by him. The plaintiff filed the reply thereto and after listening to the arguments advanced by the learned counsel for the parties, his application for bringing amendments to the written statement was dismissed by learned Judge Family Court seized with the suit vide order dated 05.10.2013.
5.  As stated above, the petitioner has filed this petition to challenge the validity and correctness of the order dated 05.10.2013 passed by learned Judge Family Court, Chichawatni.
6.  Learned counsel for the petitioner contends that the application moved by the petitioner/defendant for making amendments to the written statement was wrongly dismissed. He stresses that unless the petitioner was allowed to make the amendments proposed by him, his case would suffer grievously. According to him, the impugned order was passed without lawful authority and is liable to be corrected and interfered with by this Court in the exercise of its writ jurisdiction. In support of his submissions, he places reliance on the judgments reported as Shaban Ali v. MstZainab and 6 others” (2012 CLC 1403) and Nasim Begum v. Farah Absar and 7 others”(2012 CLC 1776).
7.  Conversely, learned counsel for Respondent No. 2 has questioned the maintainability of this writ petition. He puts forward the arguments that the main suit is still pending adjudication before the learned Judge Family Court, Chichawatni, and that an interim order cannot be challenged either in appeal or by filing a writ petition. Even otherwise, he argues, the impugned order passed by the learned Judge Family Court is unexceptionable.
8.  I have heard the learned counsel for the petitioner, learned counsel for Respondent No. 2 and also gone through the record with their assistance.
9.  I am of the view that this writ petition is misconceived and untenable. The case of the parties to the suit boiled down to this: that Mst. Nadia Anwar is denying the existence of her marriage with Dildar Hussain, the petitioner, while he is insistent that she contracted marriage with him. Therefore, the conflicting claims made by the parties to the suit have already been crystallized into their pleadings, and they are not required to make any elaboration of the facts in the pleadings. No matter what their claim, they have yet to prove their respective pleas by adducting evidence. It is well-settled that the details of the documents on which the case of a party rests need not be spelled out in the pleadings. Whether it is a civil suit or a family case for that matter, only material facts are to be alleged in the pleadings. As held above, the pleadings of the parties call for no further elucidation. Furthermore, the provisions of Order VI Rule 17, CPC providing for amendment(s) to the pleadings are not in terms applicable to the family suits. Therefore, the judgments relied upon by the learned counsel for the petitioner, which emanated from civil suits, are of no help to him. As for the legislature, it made its intention manifest by enacting Section 17 of the W.P. Family Courts Act, 1964, which clearly excludes the application of Civil Procedure Code, 1908 except for Sections 10 and 11, CPC thereof.
10.  For what has been stated above, this petition is devoid of merits and is hereby dismissed.

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