Mst. TEHSEEN AKHTAR vs MAHMOOD-UL-HASSAN

The facts giving rise to this revision petition are these. Mst. Tehseen Akhtar, petitioner, was married to Mahmood-ulHasan, respondent, at Rawalpindi sometimes in 1964. Differences having arisen between the spouses, in 1966 the respondent brought a suit against the petitioner for restitution of conjugal rights, before the Family Court at Rawalpindi. The suit was resisted on the grounds of non- payment of prompt dower and cruelty. The Family Judge while rejecting the plea of cruelty, decreed the suit conditional on payment of Rs, 2,000.00 as prompt dower. The petitioner has remained unsuccessful in her appeal before the learned District Judge and has now invoked revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure.

2. A preliminary objection has been raised by learned counsel for the respondent as to the maintainability of the revision petition on the ground that the provisions of the Code of Civil Procedure, excepting sections 10 and 11, having been specifically excludedby section 17 of the West Pakistan Family Courts Act, 1964, the judgment of the District Judge has attained finality and is not subject to the revisional jurisdiction of the High Court. In support of this preliminary objection, learned counsel for the respondent has relied on. Mst. Farida Par win v. Qadeerudain Ahmad Siddiqi and Wajahat Ali Hasnie v. Mst. Ghazala, which authorities lend support to the plea taken. Learned counsel for the petitioner, however, argues that although orders of the Family Judge may not be revisable, yet because the appeal has been heard by the learned District Judge, who presides over the principal civil Court of original jurisdiction in the District, he will be a Court subordinate to the High Court for purposes of section 115 of the Code of Civil Procedure and as such his orders will be subject to the revisional jurisdiction of this Court. He has attempted to draw support from definition of the term1 2 "District Court" appearing in section 2(4) of the Code of Civil Procedure, as also section 2(2) of the West Pakistan Family Courts Act, 1964. The said provisions are reproduced below for ready referencer -Code of Civil Procedure: "2. In this Act, unless there is anything repugnant in the subject or context-

(4) 'District' means the local limits of the jurisdiction of a principal civil Court of original jurisdiction (hereinafter called a 'District Court'), and includes the local limits of the ordinary original civil jurisdiction of a High Court West Pakistan Family Courts Act, 1964: "(2) ................................................

2. Words and expressions used in this Act but not herein defined, shall have the meanings respectively assigned to them in the Code of Civil Procedure, 1908."

He has attempted to argue that the observations made in Wajahat All Hasnie v. Mst. Ghazala are confined to a Family Court and should not be extended to the Court of appeal, namely, the District Judge, because while hearing appeals from orders or judgments of tribunals, which are persona designata and not Courts, the District Judge exercises jurisdiction as presiding officer of principal civil Court of original jurisdiction in the District and as such is a Court subordinate to the High Court for purposes of section 115 of the Code of Civil Procedure. Learned counsel conceded that if the District Judge decides the case as a Family Court and not as a Court of appeal; the law laid down in Wajahat All Hasnie v. Mst. Ghazala would apply and his orders would not be revisable. Further, there is no denying the fact that excepting sections 10 and 11, application of other provisions of the Code of Civil Procedure has been specifically excluded by section 17 of the Act. This statute and the Rules framed thereunder have made significant departure from the provisions of the Code of Civil Procedure in respect of place of suing, recording of evidence and the right of appeal etc. Therefore, while deciding cases falling under the Family Courts Act, the Family Court, the District Judge and even this Court, exercise jurisdiction under that Act and not the Code of Civil Procedure. On this view of the matter, the contention has no force and no distinction can be drawn between the orders of the Family Court (presided over by a Civil Judge) and of a Court of appeal, under section

14. I am in respectful agreement with the view expressed in Mst. Farida Parwin v. Qadeeruddin Ahmad Siddiqi and Wajahat All Hasnie v. Mst. Ghazala relied on by learned counsel for the respondent and I hold that orders of the District Judge passed either as a Family Court under section 7 of the Act or as an appellate Court under section 14 of the Act are not subject to the revisional jurisdiction of this Court and as such the revision petition is incompetent.

3. It has been argued, in the alternative, that the revision petition may be treated as a petition under Article 102 of the abrogated Constitution Act of 1962. The argument advanced is that because the District Judge is a Court subject to the judicial control of the High Court under the said Article, the judgment assailed in the petition should be set aside, the same having been passed in disregard of the definition of the term `Cruelty' in the Dissolution of Muslim Marriages Act, 1939, inasmuch as the District Judge has held that there being no proof of physical injury to the petitioner, cruelty was not proved.

4. The power of judicial control under Article 102 is to be used more sparingly and inappropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. Put differently. under Article 102 of the Constitution, this Court is not to convert itself into a Court of appeal and revision and the power of interference is limited to seeing that the Subordinate Court functions within the limits of its authority. Bearing these principles in mind, I find that the objection as to misconstruction of the term 'cruelty' in the Dissolution of Muslim Marriages Act of 1939 has no force, because the tenor of the impugned judgment shows that the argument of absence of report to the police or medical examination in support of the allegation of physical cruelty, has been advanced by the District Judge to augment his conclusion of non-proof of cruelty, arrived at on the basis of other evidence on the record. The impugned judgment, therefore, suffers from no defect of lack of authority warranting interference under Article 102 of the abrogated Constitution Act of 1962.

5. For the reasons above, the petition fails and is dismissed. There will be no order as to costs. PLD 1971 Kar. 118 PLD 1970 Lah. 641