IMTIAZ AHMAD KHAN vs Mst. AQSA MANZOOR and others

ORDER

' Respondents Nos. 1 and 2 instituted a suit for maintenance and return of articles of dowry in the court of learned Judge Family Court, Multan. The petitioner made an application contending that the learned trial Court shall not try the suit as the respondents had previously instituted a suit for the same relief. It was contested, issues were framed and the same was finally dismissed vide decree dated 29-7-2008. The earlier suit having been finally decided, the second suit was hit by principles of res judicata as contained in section 11 of the Civil Procedure Code, 1908 which is applicable in cases instituted under the West Pakistan Family Courts Act, 1964. This application was dismissed by the learned Judge Family Court, Multan vide order dated 12-11-2009.. Contends that order dated 12-11-2009 is illegal. The earlier suit between the same parties, the subject matter being the same and having finally been decided the subsequent suit could not be tried and that the learned Single Judge has erred in law while dismissing the petitioner's Writ Petition No,10898 of 2012 and by upholding, the order passed by the learned Judge Family Court, Multan.

2. Learned counsel appearing on behalf of respondents Nos. 2 and 3 supports the order passed by the learned Single Judge. Contends that the earlier suit dismissed for want of evidence does not amount to final adjudication and therefore, the provisions of section 11 of the Civil Procedure Code, 1908 do not restrain the court from trying the suit and that the order dated 12-11-2009 is in its nature 'a decision given' and is appealable under section 14 of the West Pakistan Family Courts Act, 1964.

Since, the order impugned in writ petition was appealable, therefore, the Intra Court Appeal under section 3 of the Law Reforms Ordinance, XII of 1972 is not maintainable.

3. We have heldd the learned counsel for the parties and have also gone through the record.

4. The basic question to be resolved is, whether the order dated 12-11-2009 dismissing the petitioner's application seeking the dismissal of respondent's suit is a decision given or an interlocutory order, the two terms used in section 14 of the West Pakistan Family Courts Act, 1964.

' The order dated 12-11-2009 impugned in the writ petition was passed on the application made by the applicant. The question whether the court could try the subsequent suit when the earlier one had already dismissed for want of evidence was finally decided vide the above referred order. No further order was to be passed on the said application. The order passed falls with the term of "a decision given". Reliance is placed on Rao Muhammad Owais Qarni v. Mst. Tauheed Aisha and others 1991 M LD 1097. In view of the ratio of the referred judgment the order assailed in writ petition finally decides the application made by the appellant cannot be termed to be an interlocutory order. It is a decision given and is appealable. The instant Intra Court Appeal arising out of the proceedings whereby the law provides a remedy by way of an appeal or revision is not competent.

This appeal is dismissed.