SAEEDUDDIN vs IIIRD SENIOR CIVIL JUDGE (EAST), KARACHI And ANOTHER
This constitutional petition arises from a family suit for the dissolution of marriage filed by the respondent against the petitioner. The petitioner challenged the trial court's refusal to reject the plaint, arguing that the respondent failed to comply with Rule 4(2)(c) of the Sindh Muslim Family Courts Rules, 1965, by providing the address of her advocate instead of her own residential address. The petitioner contended that this provision is mandatory and that non-compliance necessitates the rejection of the plaint. The core legal question before the Sindh High Court was whether the requirement to provide a specific address under the Sindh Muslim Family Courts Rules, 1965, is mandatory, such that its breach warrants the rejection of the plaint. The Court held that while the rule uses the word "shall," the Rules contain no penal provision prescribing the rejection of a plaint for such non-compliance. Consequently, the Court determined that the provision is directory rather than mandatory. The petition was dismissed in limine, establishing the principle that procedural requirements in the Sindh Muslim Family Courts Rules, 1965, lacking explicit penal consequences for non-compliance, are directory in nature.
- Is the requirement to provide a residential address under Rule 4 of the Sindh Muslim Family Courts Rules, 1965, mandatory or directory?
- Does the failure to provide a personal address in a family court plaint automatically result in the rejection of the plaint?
- Can a plaint be rejected for non-compliance with procedural rules where the governing statute prescribes no specific penalty for such non-compliance?
- Rule 4, Sindh Muslim Family Courts Rules, 1965
- Rule 4(2)(c), Sindh Muslim Family Courts Rules, 1965
- Article 199, Constitution of Islamic Republic of Pakistan, 1973
ORDER
1. Mst. Tasleem Aslam. Khan the respondent No.2 herein has riled suit for dissolution of her marriage to petitioner, Saceduddin, in the Court of 111rd Senior Civil Judge (Family Judge), Karachi (East).
2. Mr. M.Waqar Hussain, Advocate for the petitioner makes a grievance that in the title of the suit riled by Respondent No.2 she has mentioned address of the office of her Advocate as her address. He, therefore, riled an application before the Family Judge seeking rejection of, the plaint on that ground. He contends that the plaint is to be rejected as Rule 4 of the Sindh Muslim Family Courts Rules, 1965 has not been complied with by giving correct address. According to him provision contained in sub-rule 2(c) of Rule 4 is mandatory and non-compliance will entail the penalty of rejection of the plaint. Since tile Family Judge has rejected his application seeking rejection of plaint by his order passed on 1st December, 1991 he has riled this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking annulment of the said order.
3. Rule 4(l) of the Sindh Muslim Family Courts Rules, 1965 provides A that in case where family suit is riled by a female it can also be riled on her behalf by her agent. No doubt Sub-rule (2) contains "shall" but nowhere in the Rules any provision is made that in case of non-compliance of such rule the penalty of rejection of the plaint or any other penalty shall follow.
4. In absence of any penal provision in the Rules in case of non--compliance of Rule 4 of the Sindh Muslim Family Courts Rules, 1.905, Sub-rule (2) will be taken to be directory in nature.
5. No other ground for the exercise of jurisdiction under Article 199 oi the Constitution by this Court has been pointed out by the Advocate, for the petitioner.
6. The petition is dismissed in limine A.A./S-877/K
Cited by 4 cases
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- RABIA AKHTER and another vs MUHAMMAD AYUB and 2 others 2013 PLJ SC (AJ&K) 58, 2013 MLD 16
- Mst. KOUSAR BEGUM and another vs MATLOOB HUSSAIN SHAH and 2 others 2007 CLC 281