AZHAR-UL-HASSAN NAQVI Versus HAMIDA BIBI

ORDER

The petitioner against whom an ex parte decree had been passed or. 1-11-1974, by the Family Court, Jauharabad, for recovery of the dower amount of Rs. 14,000 moved an application for setting aside the ex parte decree on the ground that although he had been served and had also filed a written statement in the suit which was then pending before the Family Court Sargodha, but during the pendency of the suit the District Judge had transferred the same to the Family Court, Jauharabad, of which transfer he had had no notice and that he had come to know of the decree when its execution had been taken up. He also moved an application for stay of the recovery of the decretal amount but the same was refused by the Family Court on 29-11-1978. His appeal against the refusal before the District Judge, Sargodha, also failed on 23-4-1979, on the ground of its non-maintainability. The learned District Judge was of the view that section 14 of the Family Courts Act permitted appeals only from certain decrees or decisions, that the words "decree" and "decision" occurring contiguously in the section, will have the same meaning on the principle of ejusdent generis and that an order refusing to grant an interlocutory relief was no better than an interlocutory order. and was, thus, not covered by the expression "decree" or "decision".

2. Ch. Khurshid Ahmad, Advocate, appearing for the petitioner contended that the word "decision" used in section 14 was meant to cover all orders other than decrees, that the interpretation put by the learned District Judge that it amounted to an order analogous to a decree was not legally sustainable, that the refusal to grant a stay was a "decision" and as such appealable under section 14 and that the learned District Judge bad clearly failed to exercise jurisdiction vested in him under the law. He, therefore, urged that the order dated ?.9-11-1978 passed by the Family Court and the one dated 23-4-1979, passed by the District Judge be declared to be without lawful authority and that a direction be issued to the latter to exercise his appellate jurisdiction and decide the petitioner's appeal in accordance with the law.

3. Section 14 of the W. P. Family Courts Act, which provides for appeal, permits appeals only against "a decision given or a decree passed" by a Family Court. It, however, bars an appeal from a , decree passed by a Family Court

(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of subsection (2) of the Dissolution of Muslim Marriages Act, 1939.

(b) for dower not exceeding rupees one thousand ;

(c) for maintenance of rupees twenty-five or less per month."

Under section 13 of the Act. the Family Court has to pass a decree in suits before it but all matters before such Court need not culminate in a decree, such as conviction and sentence recorded under section 15(:~) or section 16 or a matter under the Guardians and Wards Act. 1t is for that reason that the word "decision" finds place in addition to the word "decree" in section 14.

4. The word "decision" has not been defined in the Act. According to Wharton's Law Lexicon (Fourteenth Edition), "decision" means "a judgment". As per Stroud's Judicial Dictionary (Third Edition), "decision" is "a popular, and not a technical word, and means little more than a concluded opinion. It does not, by itself, amount to judgment, or order." According to the New Webster Encyclopedic Dictionary, "decision" means "the act of deciding ; determination, as of a question or doubt, final judgment or opinion in a case which has been under deliberation or discussion ; determination, as of a contest or event ; arbitrament; the quality of being decided in character ; unwavering firmness".

5. The question, therefore, arises whether the term "decision" is to be interpreted to mean a final decision and, thus, equated with a "decree" or is its scope wide enough to cover every order passed in the proceeding, on a point on which the parties are in controversy. A reading of section 14 makes it clear that it does not provide any scope for appeal against an interlocutory order in a matter which culminates in a decree. In that situation, only the decree , can be appealed against. Even then all decrees have not been made appealable. The words "a decision" and "a decree" in section 14 are placed in such contiguity that a parity in their respective interpretations appears to be essential. It would, therefore, be logical" to hold that in matters which culminate not in a decree but a decision, the interlocutory orders passed therein can also not be appealed against. Any other interpretation would be inconsistent with the spirit of section 14 and would also run counter to the basic objective of the Act which was enacted "for the expeditious settlement and disposal of disputes relating to marriage . . . .". It was held in Wajahat Ali Hasnie v. Msa. Ghazala (P L D 1970 Lah. 641) that

"The object of the Family Courts Act is to provide a speedy method of settling family disputes and if. orders of interlocutory character are to be brought to the High Court, this object would be defeated."

The above view finds support also from Syed Muhammad Raza Shah v. Sayeda Salma Gilani and another (P L D 1976 Lah. 1015), in which it had been held that

"The way the words `decree' and `decision' have been used in section 14, shows that the word `decision' should be read as ejusdem generis to the word `decree'. 1f it is so read, it will point out to only such decrees being appealable which finally determine the proceedings before the Family Court."

6. Learned counsel contended that the rule of ejusdem generis will not apply because for the applicability of the rule that the general word should follow the specific one. It is true that where the rule applies the general words normally follow the particular ones but this does not seem to be any invariable condition. It has been stated in "Words and Phrases (Permanent Edition)" that "the rule of `ejusdem generis' is that where, in a statute, general words follow or precede a designation of particular subjects or classes of persons, the meaning of the general words ordinary will be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose. Steinfeld v. Jefferson County Fiscal Court (229 S W 2d 319=312 Ky. 614). The general word, therefore, can precede the particular one. By application of the rule the term "decision" is to be interpreted and clothed with the same finality as a decree.

7. The question of grant or refusal to grant a stay pending the main matter, is an interlocutory matter and as such the order does not amount to a "decision" contemplated under section 14 of the Act. The impugned order of the District Judge reflects the correct view of the law and as such there is no question of assailing its validity.

8. The writ petition is, therefore, dismissed in limine,

X. M. A. Petition dismissed.