Form No: HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT,
BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT

Case No. W.P. No.6867-2016

Shah Nawaz Qureshi Versus Addl. District Judge,

Bahawalpur, etc.

S.No. of order/ Date of order/ Order with signature of Judge, and that of parties of
proceeding Proceeding counsel, where necessary

28.09.2016 Mr.Muhammad Imran Pasha, Advocate for the

petitioner
Mr.Shahid Sajjad Siddiqui, Advocate for
respondent No.3

The petitioner through this constitutional

petition under Article 199 of the Constitution of Islamic
Republic of Pakistan, 1973, has assailed the judgment
and decree dated 26.11.2015 passed by the learned
Judge Family Court, Bahawalpur, and judgment and
decree dated 26.04.2016 passed by the learned
Additional District Judge, Bahawalpur.
2. Briefly the facts necessary for adjudication of this
constitutional petition are that respondent No.3 filed a
suit for recovery of dower against the petitioner. The
suit was contested by the petitioner by filing written
statement. The petitioner also filed a suit for restitution
of conjugal rights against respondent No.3, which was
resisted by her by filing written statement. Both the
suits were consolidated. Pre-trial reconciliation
proceedings were conducted but these were ended in
smoke.
3. Out of the divergent pleadings of the parties, the
following consolidated issues were framed by the
learned trial court :-
W.P. No.6867/2016. 2

“1. Whether the plaintiff is entitled to get

decree for recovery of dowry as prayed for ?
OPP
2. Whether the suit is not maintainable and is
liable to be dismissed ? OPD
3. Whether the defendant Shah Nawaz is
entitled to get decree for restitution of
conjugal rights as prayed for ? OPD
4. Relief.”

After framing of issues, the parties were directed to

produce their respective evidence. Respondent No.3
produced the oral as well as documentary evidence
whereas the petitioner did not produce his evidence and
his right to produce evidence was closed on 21.10.2015
and thereafter he himself absented from the court on
25.11.2015, consequently he was proceeded against ex-
parte. After scanning the entire evidence available on
record, the learned Judge Family Court, Bahawalpur,
dismissed the suit of the petitioner for restitution of
conjugal rights whereas the suit of respondent No.3 for
recovery of dower was decreed vide impugned
judgment and decree dated 26.11.2015. Feeling
aggrieved, the petitioner preferred an appeal against the
said judgment and decree, which was dismissed by the
learned Additional District Judge, Bahawalpur, vide
impugned judgment and decree dated 26.04.2016.
Hence, this writ petition.
4. Learned counsel for the petitioner contends that
order dated 21.10.2015 whereby the right of the
petitioner to produce evidence was closed is not
sustainable as there does not exist any provision in the
West Pakistan Family Courts Act, 1964, to pass such
like order. He further contends that the provisions of the
Code of Civil Procedure, 1908, are not attracted and the
same have been specifically excluded by virtue of
section 17 of the West Pakistan Family Courts Act,
W.P. No.6867/2016. 3

1964. He further contends that the impugned judgments

and decrees passed by the two courts below are the
result of misreading and non-reading of oral as well as
documentary evidence available on the record.
5. On the other hand, learned counsel for respondent
No.3 contends that the order dated 21.10.2015 whereby
the right of the petitioner to produce evidence was
closed was legally justiciable as on the last date of
hearing i.e. 19.10.2015 the case was adjourned at the
request of the learned counsel for the petitioner. He
further contends that the impugned judgments and
decrees passed by the two courts below are concurrent
in nature and this Court while exercising constitutional
jurisdiction cannot upset the same, by taking a different
view.
6. Arguments heard. Record perused.
7. In the case in hand the evidence of respondent
No.3 was recorded on 10.07.2015 and the case was
adjourned for 03.09.2015 for recording of evidence of
the petitioner. On 03.09.2015, the evidence of the
petitioner was not available and at the request of the
learned counsel for the petitioner the case was
adjourned for evidence of the petitioner for 29.09.2015.
On 29.09.2015, once again the evidence of the
petitioner was not in attendance and the case was
adjourned at the request of the learned counsel for the
petitioner subject to payment of cost of Rs.100/- and the
case was adjourned with last opportunity for 10.10.2015.
On 10.10.2015, only one witness of the petitioner was
present. However, the case was adjourned at the request
of the petitioner on the ground that his counsel was not
available. The case was adjourned for evidence of the
petitioner for 19.10.2015. On the said date once again
the evidence of the petitioner was not available and at
W.P. No.6867/2016. 4

the request of the learned counsel for the petitioner the

case was adjourned for 21.10.2015 subject to payment
of cost of Rs.100/- and it was made clear that if the
petitioner would not produce his evidence, the same
would be closed. Once again on 21.10.2015 the
evidence of the petitioner was not in attendance,
therefore, his right to produce evidence was closed.
8. From the bare perusal of the aforesaid interim
orders, it is manifestly clear that the petitioner did not
produce his evidence deliberately and intentionally just
to prolong the proceedings. On 19.10.2015, the case
was adjourned at the request of the learned counsel for
the petitioner and that too subject to payment of cost of
Rs.100/- and it was made clear that in case the
petitioner would not produce his evidence the same
would be closed. The learned Judge Family Court was
justified in closing the right of evidence of the petitioner
and there is no illegality in the order dated 21.10.2015.
9. It is pertinent to mention here that in the absence
of express provision in West Pakistan Family Courts
Act, 1964, authorizing a Family Court to close evidence
of party, there is no provision to the effect that party’s
evidence would not be closed even if the said party
failed to produce evidence without sufficient cause,
despite having availed of several opportunities to do so.
Family Court can close evidence of a party who failed
to adduce evidence without sufficient cause. The
petitioner was given many opportunities to adduce his
evidence but despite such opportunities including last
opportunity and adjournment on payment of cost, he
neither adduced evidence nor paid cost, therefore,
evidence of the petitioner has rightly been closed. Law
requires that case should be heard and adjudicated upon
its merits and parties should be granted reasonable
W.P. No.6867/2016. 5

opportunity to produce their evidence. If the parties are

allowed to get adjourned the case for the purpose of
recording of evidence on number of occasions without
any sufficient cause, then aims and objects in
promulgating the West Pakistan Family Courts Act,
1964, will be rendered futile. From the bare perusal of
the Preamble of West Pakistan Family Courts Act, 1964,
it is manifestly clear that the Family Courts have been
established for the purpose of expeditious settlement
and disposal of family disputes relating to marriage and
family affairs and for matters connected therewith.
Uncalled for adjournments will frustrate the aims and
objects of the West Pakistan Family Courts Act, 1964,
for which the same has been enacted.
10. As far as argument of the learned counsel for the
petitioner that the provisions of the Code of Civil
Procedure, 1908, are not attracted and the same have
been specifically excluded by virtue of section 17 of the
West Pakistan Family Courts Act, 1964, is concerned,
although the provisions of Code of Civil Procedure and
Qanun-e-Shahadat have not been made applicable to the
West Pakistan Family Courts Act, 1964, before the
Family Court by virtue of section 17 of the West
Pakistan Family Courts Act 1964, but general principles
thereunder can be invoked for due administration of
justice where no procedure is provided in the West
Pakistan Family Courts Act, 1964. Said provision of
section 17 is reproduced herein below :-
“S. 17. Provisions of Evidence Act and Code of
Civil Procedure not to apply.__(1) Save as otherwise
expressly provided by or under this Act, the
provisions of the {Qanun-e-Shahadat, 1984 (P.O.
No.10 of 1984)} and the Code of Civil Procedure,
1908 {except sections 10 and 11} shall not apply to
proceedings before any Family Court, {in respect of
part I of Schedule}
(2) Sections 8 to 11 of the Oaths Act, 1873, shall
apply to all proceedings before the Family Courts.”
W.P. No.6867/2016. 6

It will not be out of place to mention here that the

purpose of enacting Family Courts Act is to frustrate the
technicalities for the purpose of justice between the
parties in the shortest possible manner. All that the
Family Courts Act has done is that it has changed the
forum, altered the method of trial and empowered the
Court to grant better remedies. The only purpose of
enacting special law i.e. West Pakistan Family Courts
Act, 1964, regarding family disputes is for advancement
of justice and to avoid technicalities. It is settled
principle of law that learned Judge Family Court, while
dealing with the suit mentioned in Schedule of the West
Pakistan Family Courts Act, 1964, has to adopt
procedure of his choice, in order to meet the situation
not visualized in the Family Courts Act. It is also
settled principle of law that the learned Judge Family
Court has to regulate its own proceedings in accordance
with the provisions of that Act and in doing so it has to
proceed on the premises that every procedure is
permissible unless a clear prohibition is found in law.
As there does not exist any provision for the closing of
the evidence, therefore, the Judge Family Court can
adopt the procedure provided in the Code of Civil
Procedure, 1908, and can apply the same to proceedings
pending before him. In case titled Faiz-ul-Hassan vs.
Mst. Jan Sultan and 2 others (2001 SCMR 1323), it has
been held by the Hon’ble Supreme Court of Pakistan
that where the husband participated in the proceedings
but did not file written statement as directed, the Family
Court is competent to strike off defence of the husband
and pass the decree for recovery of dower amount.
Further reference may be made to case titled Dr.Asma
Ali vs. Masood Sajjad and others (PLD 2011 SC 221).
W.P. No.6867/2016. 7

The relevant portion of the judgment is reproduced

herein below :-
“The provisions of the Civil Procedure Code have
been excluded by section 17 of the Family Court Act,
1964, to proceedings under it. And it has been
consistently held that such provisions are not stricto
sensu applicable to the proceedings before the
Family Court. However, as the Family Court Act is
not an all-encompassing legislation and the
principles of certain provisions of the Code of Civil
Procedure have at times been invoked when
necessary to give effect to the Family Court Act.”

11. Against order dated 21.10.2015, the petitioner

filed an application for review of the said order. This
application was also dismissed for non-prosecution.
From the judgment and decree dated 26.04.2016 passed
by the learned lower appellate court it appears that the
appeal before the learned lower appellate court was
barred by time as against the judgment and decree dated
26.11.2015 passed by the learned Judge Family Court,
the appeal was instituted on 28.01.2016. Alongwith the
appeal an application under section 5 of the Limitation
Act, 1908, was filed on the ground of ailment. However,
no medical certificate, in support of the application, was
appended. It has also been observed by the learned
lower appellate court that the petitioner has miserably
failed to explain each and every day’s delay in filing the
appeal.
12. The judgments and decrees of the two Courts
below are concurrent in nature and this Court does not
find any misreading or non-reading of oral as well as
documentary evidence available on the record. Even
otherwise, this Court cannot upset findings of the two
Courts below while exercising constitutional
jurisdiction as a Court of Appeal. Learned counsel for
the petitioner has failed to point out any illegality and
 W.P. No.6867/2016. 8

jurisdictional defect in the concurrent findings of facts

recorded by the two Courts below.
13. Sequel to the above, this writ petition is devoid of
any force, hence, dismissed with no order as to cost.

(SHAHID MUBEEN)
JUDGE
APPROVED FOR REPORTING.

(SHAHID MUBEEN)
JUDGE
*Iftikhar*