MAQSOOD ALI Versus SOOFIA NOUSHABA

ORDER

The facts of the case giving rise to this revision application are that the respondents in this case who are wife and children, respectively of the applicant filed a suit against him before the Family Court for maintenance. The suit was decreed on 30‑11‑1983 but only in favour of the respondents Nos.2 and 3 as respondent No.l in the case had been earlier divorced by the applicant. According to the decree awarded by the Family Court the applicant was directed to pay Rs.400 per month by way of maintenance to the respondents Nos.2 and 3. The applicant appealed against the decree before the Additional District Judge, Karachi. However, in the meanwhile the respondents Nos.2 and 3 filed execution application in the Court of XXIVth Civil Judge, Karachi who by an order, dated 15‑12‑1984 (hereinafter referred to as "the impugned Order"), ordered attachment of salary of the applicant. Thereafter the execution application was ordered to be sent to the learned District Judge at Quetta for further action as the applicant was then residing at Quetta. It is pertinent to note here that the learned Civil Judge while signing the impugned Order designated herself as Civil Judge, Karachi and not as a Judge of the Family Court.

2. Before this Court could deal with the merits of this case for the purpose of admission, a preliminary objection was raised by the office as to the competency of this revision application, since the impugned order has been passed in execution proceedings arising out of a decree passed by the Family Court. It is pertinent to note further that the Family Court Act, 1964 (hereinafter referred to as "the Act") only provides for one appeal against a decision or a decree passed by the Family Court. Further, the Act makes certain decree/ non‑appealable. A Besides that section 17 of the Act further bars the application of the C.P.C. to the proceedings under the Act.

3. I have now heard both the parties in this case as pre‑admission notice was earlier issued to the respondents.

4. Mr. Rehanul Hassan Farooqi, the learned counsel for the respondents has supported the preliminary objection and has contended that the impugned order is a "decision" within the meaning of section 14 of the Act and as such it is appealable. He has further contended that since the impugned order has been passed in execution proceedings following a decree passed by Family Court, the same would be deemed to be an Order passed by a Family Judge. Lastly, the contention of the learned counsel has been that since the Family Court is not a subordinate Court of the High Court within the meaning of section 115 of the C.P.C., therefore, this revision is not competent. He has relied on Syed Shamim Ahmed v. Mst. Riaz Fatima P L D 1975 Kar. 448, Mst. Zaibun Nisa v . Muhammad Muzammil P L D 1972 Kar. 410 and Munir Hussain and others v. Mst. Shai Khela and others 1983 C L C 2794 to support his contentions. The argument of Mr.Maroof Ali Khan, the learned counsel for the applicant on the other hand firstly is, that the impugned order has not been passed under the provisions of the Act as according to the learned counsel section 13 of the Act provides that where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court, the same can be recovered as arrears of land revenue. According to the learned counsel in the present case, the impugned order by directing attachment of salary of the Judgment‑debtor, clearly falls within the purview of Order XXI, rule 17 of the C.P.C. The next argument of the learned counsel is that the learned Civil Judge while signing the impugned order designated herself as Civil Judge, Karachi, but not as Judge of the Family Court, therefore, the impugned order has not been passed under the provisions of the Act. On the basis of the said argument, the learned counsel further Contended that since the impugned order has been passed by a Civil Judge under the provisions of the C . P . C . , the revision application is competent. Lastly it has been contended in the alternative that even if the impugned order is an order passed within the provisions of the Act, even then it is not appealable under the said Act as it is not "a decision" or "a decree" within the meaning of section 14 of the Act and as such revision lies against the same, the proceedings being of civil nature. I shall first advert to the arguments advanced by the applicant's counsel.

5. The Act is a special law and provides for establishment of Family Courts in each District and at such other places as the Government deems necessary. The jurisdiction of the Family Court relates to the subjects set‑forth in the Schedule to the said Act. Subsection (2) of section 12 then provides for judgment and decree to be passed by the Family Court if a compromise or reconciliation between the parties is not possible in a particular case. Section 13 then provides in subsection (1) thereof that the "Family Court" shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register. Subsection (3) of section 13 further says that "where a decree relates to the payment of money and the decretall amount is not paid within the time specified by the Court, the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree‑holder.

6. In the present case since the decree is for payment of money to) the decree‑holders, it was to be executed in the manner provided by subsection (3) of section 13 and not in the manner provided, by Order XXI of the C.P.C. The Act being a special law, its provisions have to prevail over those of the C.P.C., the latter being a general law. The perusal of the provisions of section 13 of the Act clearly shows that a money decree passed by the Family Court is to be executed in the manner provided by section 13 of the Act which means that it is not to be executed in accordance with the provisions of the C . P . C . Now, while passing the impugned order, the learned Civil Judge certainly acted erroneously by ordering execution of the decree in the manner provided in the C . P. C . Nevertheless, since the decree being executed was that of the Family Court and the learned Civil Judge can exercise jurisdiction under the Act, therefore, the impugned order would be deemed to have been passed by her under the Act. An erroneous order passed by the Court would not be in excess of jurisdiction merely for the reason of its being erroneous.

7. Coming to the next argument of Mr.Maroof Ali Khan, although itl is correct that the learned Civil Judge has signed the impugned order as Civil Judge and not as a Family Judge, but section 4 of the Act shows "that no person shall be appointed as a Judge of the Family Court unless he is or has been a District Judge, an Additional District Judge, a Civil Judge or Qazi appointed under the Dastur‑ul‑Amal Diwani". The learned Civil Judge who passed the impugned order, in addition to her duties as a Civil Judge, was also performing functions of a Family Judge under the Act. Although, while signing the impugned order the learned Judge has designated herself as Civil Judge, Karachi, but the said order further shows that it relates to the execution proceedings filed in Family Suit No.881 of 1978. Therefore, as I have earlier said, the impugned order would be deemed to have been passed by the learned Civil Judge as Judge of the Family Court.

8. Reference in this respect may be made to Muhammad Ramzan v. Mst. Khalida Perveen P L D 1971 Lah. 813 cited by the applicant's counsel. In that case which was decided by the Lahore High Court and which incidentally had arisen out of proceedings under the Family Courts Act, the Civil Judge, Sheikhupura who was also invested with powers of a Family Court Judge, decided a suit for dissolution of marriage as a Civil Judge and not in his capacity as a Family Court Judge. An Appeal was filed which was disposed of by the Additional District Judge as one against the judgment of ordinary civil Court. The civil Court designated himself as Senior Civil Judge, Sheikhupura and not as Judge, Family Court and the Appellate Court also mentioned the trial Court as such. On a question being raised whether such proceedings could be treated as under the Civil Procedure Code, the Lahore High Court held as under:‑‑--

"The argument has no force whatsoever. The validity of a judgment or an order, in fact, turns upon the question whether the Court passing it had jurisdiction to pass it and not on the fact that the Court in question described itself wrongly or put an incorrect designation under its orders. If the Court passing an order has, in fact, the jurisdiction to pass the same, it would not become invalid merely because the Court gave an incorrect designation under it."

Reliance in that case was placed on Piao Gul v. The State P L D 1960 SC 307 earlier decided by the Supreme Court. In that case one Piao Gul was tried and convicted by Political Agent/District Magistrate, Khyber Agency, for offences under section 8(a) and (b) of North‑West Frontier Province Corps Law, 1941. The case under the relevant law was triable by a Court of Sessions Judge. The Political Agent of that area also possessed such powers. Mr.Faridullah Shah, District Magistrate and Political Agent of that area who tried the case, throughout the proceedings designated himself as Political Agent and District Magistrate. The order passed by him was challenged on the ground that it had been passed by him as District Magistrate and not as Sessions Judge. The Supreme Court held:

"Postulating that the trial of offences under section 8 of the North‑West Frontier Province Corps Law, 1941, could only be competently held before a Court of Sessions, and the Court of Sessions for the Khyber Agency is the Court of the Political Agent, it must follow that the trial of the present appellant was conducted before Mr. Faridullah Shah in his capacity, as a Court, of Sessions under the Criminal Procedure Code, 1898 as applied to the Khyber Agency.‑There was no commitment. The trial was conducted by the warrant procedure. In that view of the matter, the solitary mis-description in the charge i.e. where the Court described himself as District Magistrate would be without effect upon the legality of the trial. It would be a mis-description which was demonstrably incorrect, falling within the maxim falsa demonstration non nocet. It would therefore be without effect upon the validity of the proceedings provided that the person conducting those proceedings possessed in himself the capacity to do so. Mr. Faridullah Shah as Political Agent possessed the capacity of a Court of Sessions to try the charges against Piao Gul, and to impose a sentence of 14 years' imprisonment."

I am therefore, clearly of the view that although the learned Civil Judge designated herself as Civil Judge, Karachi while signing the impugned order, but the latter was in fact an order passed under the provisions of the Act.

9. The next argument of the applicant's counsel is in the alternative. The argument is that even if the impugned order falls within the provisions of the act, the same could neither be termed as "a decision" nor "a decree" and as such it is not appealable. Section 14 of the Act provides for one appeal against a decision or a decree passed by a Family Court and subsection (1) thereof makes certain decrees non‑appealable and final. (See section 14 of the Act). Consequently, according to the learned counsel, a revision application is competent since the impugned order has been passed by a Civil Judge in proceedings of civil nature.

10. It is correct that the impugned order cannot be termed as "a decree", within the meaning of the term as defined in the C.P.C. The impugned order cannot even be termed as "a decision" because the same requires that there should be some issue and its settlement by the Court. While passing the impugned order all that the Civil Judge was required to do was to see whether there was a decree and whether the judgment‑debtor had failed to pay the decretal amount or any part thereof. There was, therefore, hardly any issue which required determination by the Court and the impugned order is more of a routine nature. However, in Syed Shamim Ahmed v. Mst. Riaz Fatima referred to by me earlier, a Single Judge of this Court was of the view that the words "a decision given", occurring the section 14 of the Act are not qualified in any manner by some such words as final. But in another case, decided by the Lahore High Court and reported as Muhammad Raza Shah v. Salma Gilani and another P L D 1976 Lah. 1015 the word "decision" was interpreted at page 1020 of the report as under:‑‑--

"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". If it is so read, it will point out to only such decrees being appealable which finally determine the proceedings before the Family Court."

11. Be that as it may, but I find myself in agreement with the contention of the learned counsel for the applicant that the impugned order is neither "a decision" nor "a decree" within the meaning of section 14 of the Act for which the reasons have been stated by me earlier. However, that alone is not sufficient to clinch the issue in favour of the applicant as subsection (1) of section 115 of the C.P.C. says:‑‑---

"115. Revision‑‑(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑‑

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

The High Court may make such order in the case as it thinks fit:

Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court."

From the language of section 115(1), it clearly appears that the High Court has been vested with powers to call for the record of any case which has been decided by any Court subordinate to such High Court. The question, therefore, arises whether the Family Court is subordinate to the High Court. Section 3 of the C . P. C . says:

"3. Subordination of Courts‑‑For the purposes of this Code, the District Court is subordinate to the High Court, and every civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court."

Therefore, according to section 3, the Courts which are subordinate to the High Court for the purposes of the Code are the District Court and every civil Court of a grade inferior to that of a District Court and every Court of Small Causes. The Family Court obviously is not any of such Courts. Reference is in this respect is also necessary to section 17 of the Act which expressly bars the application of the C.P.C to the proceedings before the Family Courts. The said section provides:

"17. Provisions of Evidence Act and the Code of Civil Procedure not to apply.‑‑(1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872 and the Code of‑ Civil Procedure, 1908, except sections 10 and 11 shall not apply to proceedings before any Family Court.

(2) sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Court.

The question, whether revision application is competent against proceedings under the Family Courts Act came up for discussion before the Lahore High Court in Munir Hussain and others v . Mst Shai Khela and others, referred to me earlier and the conclusion was that an order passed by the Family Court cannot be treated to be an order passed by a Court subordinate to the High Court within the meaning of section 115 of the C . P. C . Reliance was placed by the Lahore High Court on Mst. Tehseen Akhtar v. Mahmood‑ul‑Hassan P L D 1971 Lah. 875 and Wajahat Ali Hasnie v. Mst. Ghazala P L D 1970 Lah. 641. In the last mentioned case it was observed by the Court that:

"This intention would be frustrated if every case yeas liable to be carried to the High Court under section 115, C.P.C. The object of this 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. Under the provisions of the Act the family Court is subordinate to the High Court if it is presided over by a person who is or has been District Judge or an Additional District Judge and to the District Court in any other case, vide section 14 of the Family Courts Act. But merely because of this subordination to the High Court it does not automatically follow that the orders passed by such a Court become revisable by the High Court. The revisional power is contained in section 115 of the C.P.C. However, by virtue of section 17 of the Act, the application of the provisions of the Code of Civil Procedure are excluded, except for certain limited purposes which are specified in the Act. Moreover, the Civil Procedure Code does not, as provided in section 4 override any special or local law. The provisions of section 17 of the Family Courts Act must, therefore, be given their full effect with the result that even if the Family Court is regarded as a Court subordinate to the High Court, the effect of section 17 of the Act is to exclude the orders of the Family Court from the operation of section 115, C.P.C. and the said provision of law is not available for obtaining revision of orders passed by the Family Courts. In somewhat similar circumstances, in the case of Hafeez Ahmad v. Barkat Ali, Mr. Justice B.A. Kaikaus also took a similar view."

The next case cited by the respondents' counsel is Syed Shamim Ahmed v. Mst. Riaz Fatima referred to earlier, though in a different context. In that case also a similar view was taken and it was held that the orders of the Family Court were not revisable under the provisions of section 115 of the C . P. C . Mr. Rehanul Hassan Farooqi has also drawn support from Mst. Zaibun Nisa v. Muhammad Muzammil P L D 1972 Kar. 401, decided 'by the Full Bench of this Court. One of the questions referred to the Full Bench in that case was the same, i.e. whether the Family Court under the West Pakistan Family Courts Act, 1964 was a Court under supervisory jurisdiction of the High Court under section 115, C.P.C. The Full Bench determined the issue as under:‑‑------

"In the first place the argument that the applicant has no other remedy is based on a misreading of section 14 of the said Act. I have quoted this section earlier and it confers‑a right of appeal even against the decisions of a Family Court, it is clear that the applicant could have filed an appeal in the District Court under clause (b) of subsection (1) of section 14 against the order by which he was aggrieved. Secondly, a revision is a remedy under the Civil Procedure Code. But as section 17 of the said Act has prescribed that the provisions of the Civil Procedure Code, except sections 10 and 11 shall not apply to Family Courts, the applicant cannot invoke section 115 of the Civil Procedure Code, and that was also the view of my learned brother Muhammad Haleem, J. in Mst. Farida Parveen v. Qadeeruddin Siddiqui."

The last quoted case was also decided by this Court and is reported as P L D 1971 Kar. 118.

12. A perusal of the various provisions of the Act shows, that subsection (1) of section 14 the Act provides only for one appeal against a decision or decree of the Family Court. Subsection (2) of that section even goes to make certain decrees passed by the said Court non‑appealable. The intention of the legislature, therefore, clearly seems to be to reduce further litigation in matters triable by the Family Court, specially in case of orders of interlocutory nature. Further, according to section 17 of the Act, the application of the C.P.C. to the proceedings under the Act is completely barred except and 11 of the C.P.C. The intention of the Legislature, therefore, clearly seems to be that every decision given or decree .passed. by the Family Court should not be made appealable and also liable to be carried to the High Court under section 115 of the C.P.C. In this respect reference may once again be made to Wajahat Ali Hasnie v . Mst. Ghazala P L D 1970 Lah. 641 wherein similar views were expressed. The view taken in Farida Parveen v. Fariduddin Ahmed P L D 1971 Kar. 118, earlier decided by this Court, is also not different. However, the case reported as Mst. Zaibun Nisa v. M.Muzammil, earlier decided by the Full Bench of this Court to which I have already referred should be binding on me because this very question was in issue before the Full Bench in that case.

13. The conclusion, therefore, is that this revision is not competent. In view of that, going into merits of the case will not be necessary. This revision is, therefore, dismissed and the status‑quo earlier granted in favour of the applicant stands vacated.

A.A. Revision dismissed.