IMRAN KHAN Versus HAMEEDA AKHTAR

RAJA SAJJAD AHMAD KHAN, J.--- Above captioned appeal has been directed against the judgment and decree passed by Additional District Judge empowered as Judge Family Court, Rawalakot, dated 13.08.2018, whereby suit filed by plaintiff-respondent for recovery of dower Rs.1,00,000/- was decreed in her favour.

2. Briefly the facts of the case are that Mst.Hameeda Akhtar filed a suit for recovery of dower Rs.2,00,000/-against defendant-appellant before Additional District Judge, empowered as Judge Family Court, Rawalakot on 25.02.0217, which was decreed in favour vide impugned judgment and decree dated 13.08.2018; hence, this appeal.

3. For the sake of brevity I am not inclined to narrate the brief facts and arguments of learned counsel for the parties because it has to be remanded to the trial court on technical ground.

4. A perusal of the record reveals that trial Court after filing of suit by the plaintiff-respondent did not conduct pre-trial proceedings as per law and did not mention in its judgment about witness of defendant-appellant, nor conducted post trial proceedings whereas under section 10 of Azad Jammu and Kashmir Family Courts Act, 1993, pre-trial and post trial proceeding is mandatory. It is useful to reproduce section 10 of the Act which is as under:-

10. Pre-trial proceedings: (l) As soon as may be, after the written statement has been filed, the Court shall fix a date for pre-trial hearing of the case and issue notices to the parties for attending the Court on the date so fixed.

(2) On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the pr cis of evidence and documents filed by the parties and shall also, if it so, deems fit, record statements of parties or their counsel.

(3) At the pre-trial hearing, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.

(4) If no compromise or reconciliation is possible, the Court shall frame the issues in the case and fix a date for evidence.

6. A perusal of the section reveals that when the written statement has been filed, the Court shall fix a date for pre-trial hearing of a case and issue a notice to parties for attending the Court on the date which shall be fixed by the Court and on the date fixed, the Court shall examine the plaint, the written statement and documents and if the Court deems fit, it shall record statements of parties or their counsel. This section also provides that the Court shall ascertain the points at issue between the parties and attempt to effect compromise or reconciliation between the parties and if the parties fail to compromise or reconciliate the matter, then the Court shall frame the issues and fix the date for recording evidence. Under section 10(4) of the Act, when the parties fail to reach a compromise or reconciliation, it is mandatory for the Court to frame issues and fix a date for evidence of parties and under section 11 when the evidence of plaintiff is concluded, then the Family Court shall provide an opportunity to the other party for rebutting the same. In the present case, the trial Court initially failed to follow the procedure laid down in section 10 of the Act and also failed to appreciate and even discuss the evidence of witnesses of defendant.

In view of the above, I accept the appeal by setting aside the impugned judgment and decree, and remand the case to the trial Court with the direction that the Court shall decide the same afresh in accordance with law, in light of the above mentioned observation.

SA/6/Sh.C. (AJ&K) Case remanded.