MOHAMMAD SHAKIR Versus Mst. ROBINA

ORDER

MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner calls in question the validity of impugned order dated 11.07.2013 passed by the learned Judge Family Court, whereby due to non-filing of written statement his right to defend was struck off.

2. Learned counsel for the petitioner submits that the learned Judge Family Court erred in law while passing impugned order; that there is no express provision in the West Pakistan Family Courts Act, 1964 for striking of right of defence of a party on account of non-filing of written statement; that subsequent proceedings being conducted by the learned Judge Family Court is also violative of section 10(2) of the Act ibid according to which the learned Judge Family Court was bound to frame issues but the said Court without following the mandatory provisions of law proceeded to record the evidence of respondent No.1; that while passing the impugned order learned Judge Family Court has committed material illegality and irregularity and the same is liable to be set aside.

3. Arguments heard. Record perused.

4. It is not denying the fact that there is no specific provision in the West Pakistan Family Courts Act, 1964 for striking off the defence of defendant, however, mentioning of word "if any" in subsection (2) of section 10 of the West Pakistan Family Courts Act, 1964 clearly shows the intent of the legislature that the family court is neither helpless nor supposed to act as a silent spectator towards the inaction of the defendant in filing of written statement and if need arises can proceed to strike off the defence of the defendant. Therefore, in my considered view word "if any" empowers the family court to strike off the defence of the defendant if he fails to file a written statement within a specified period of time.

5. Coming to the question whether in the absence of written statement of the petitioner, learned Judge Family Court was duty bound to frame issue(s) according to section 10(2) of the Act (ibid), a simple answer would be 'no'. Section 10 of the Act (ibid) deals with pre-trial proceedings and this occasion arises only after filing of the written statement on behalf of defendant as is evident from section 10(1) of the Act (ibid) which provides as under:-

[When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case.]

Subsection (2) of section 10 is in continuation of subsection (1) which provides as under:-

(2) On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precise of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties, and their counsel."

6. One thing which is now clear by the wording of the aforesaid sections is that the question of pre-trial reconciliation or framing of issues arises after filing of the written statement. Furthermore, the purpose of framing of issues is to ask the parties to produce evidence in support of their respective stances raised in the plaint or written statement. If there is no written statement available on record, then it shall be presumed that the defendant has no defence and only the plaintiff has to prove his/her case according to the plaint. Therefore, in the absence of written statement, neither the learned Judge Family Court was bound nor required to frame issues for resolving the controversy. Even otherwise, it is settled proposition of law that Judge Family Court is competent to regulate its own proceedings for expeditious disposal of matrimonial disputes as the West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality or unforeseen circumstances. Reliance is placed on case reported as Akhtar Ali Said Beha v. Mst. Naheed Bibi (PLD 2003 Pesh.630).

7. In the present case four consecutive opportunities were provided to the petitioner to file written statement but he failed to do so. The reason tendered for non-submission of written statement is neither reasonable nor plausible as such while passing the impugned order, the learned Judge Family Court has not committed any illegality or irregularity warranting interference by this Court in its Constitutional jurisdiction.

8. Resultantly, this petition being without any substance is dismissed in-limine.

ZC/M-42/L Petition dismissed.