Pakistan Case Law
2001 CLC 567

MAQSOOD AHMAD vs JUDGE, FAMILY COURT, BUREWALA And 5 OTHER

⭐ Prefer in Google
Citation2001 CLC 567
CourtLahore High Court
Case No.Writ Petition No.9477 of 1999
Date2000-10-04
Judge(s)Muhammad Akhtar Shabbir
ResultPetition accepted
AI Summary — generated from this judgment; read the full text below and verify before relying on it.

This constitutional writ petition was filed to challenge an order of the Family Court striking off the petitioner's defence for failing to file a written statement in a suit for recovery of maintenance allowance. The High Court considered whether a Family Court possesses the authority to strike off a defendant's defence for non-filing of a written statement. Examining the West Pakistan Family Courts Act 1964, the Court observed that under Section 17, the provisions of the Code of Civil Procedure 1908 do not apply to Family Court proceedings. Furthermore, neither the Act nor the rules framed thereunder empower a Family Court to strike off the defence. Analyzing Section 10 of the Act, specifically the words 'written statement (if any)' in Section 10(2), the Court held that the filing of a written statement is not mandatory, and the Family Court is bound to proceed to pre-trial reconciliation and record evidence even in the absence of a written statement. The High Court accordingly declared the impugned orders unlawful, accepted the petition, and directed the Family Court to proceed from the stage of pre-trial reconciliation.

Questions settled in this judgment
  • Does a Family Court have the statutory power to strike off the defence of a defendant for failing to submit a written statement?
  • Does the Code of Civil Procedure 1908 apply to proceedings before a Family Court under the West Pakistan Family Courts Act 1964?
  • Is a Family Court required to hold pre-trial reconciliation proceedings and record evidence even if the defendant fails to file a written statement?
Laws & provisions referred
  • Section 10, West Pakistan Family Courts Act 1964
  • Section 17, West Pakistan Family Courts Act 1964
  • Article 199, Constitution of Pakistan 1973
striking off defencewritten statementFamily Courtmaintenance allowancepre-trial reconciliationwrit petitionex parte proceedings

This instant writ petition has been filed to call in question the order, dated 31-3-1999 passed by respondent No. 1 whereby the defence of the petitioner was struck off.

2. The facts giving rise to the present writ petition are that the plaintiffs/respondents Nos.2' to 6 had instituted a suit for the recovery of maintenance allowance against the petitioner/defendant in the Court of Judge, Family Court, Burewala on 24-9-1998. The petitioner failed to submit his written statement despite repeated opportunities were provided by the Court, therefore, his defence was struck off by respondent No. l vide order, dated 31-3-1999 and the petitioner/defendant filed an application for review of the abovesaid order which was also dismissed on 26-7-1999.

3. Learned counsel for the petitioner contended that in spite of the fact that the petitioner failed to file the written statement his defence could not be struck off and the petitioner has the right to produce his evidence in the Court. He relies on case of Bashir Ahmad v. Mst. Zaubida Bibi and another 1990 ALD 180. Respondents Nos.2 to 6 were served through publication in the Daily Nawa-i- Waqt but in spite of that they failed to appear in the Court, therefore, they were proceeded against ex parte.

4. I have heard the arguments of the learned counsel for the petitioner and perused the record.

5. There is no cavil with the fact that provisions- of C.P.C. Are not applicable to the proceedings before the Family Court in view of the bar contained in section 17 of the West Pakistan Family Court, Act, which is reproduced as under:--

17. Provisions of Evidence Act and 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 Courts."

Neither this Act nor rule framed under the West Pakistan Family Court Act has authorized the Family Court to struck off the defence of the defendant on his non-filing of the written statement. It is spelt out from section 10 of Act that:--

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

(2) On the date so fixed, the Curt 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, hear the parties, and their counsel.

(3) At the pre-trial 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 recording evidence."

6. This section has nowhere provided that in case of failure by the defendant to file written statement his defence would be struck off. It is manifestly clear that the Court shall examine the plaint, written statement if any, and evidence, it would mean that the filing of written statement in the Family Court is not essential. Subsection (3) of section 10 has contemplated that the Court shall make an attempt to effect compromise or reconciliation between the parties arid subsection (4) was further provided that if no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording evidence. The word, if any, in subsection (2) of section 10 signifies that even if there is no written statement reconciliation proceedings must be held and evidence should be recorded. In case of Muhammad Ashraf v. Nasreen Begum PLD 1989 Lah. 69 it was held by this Court that the Family Court could not without recording the evidence decree the suit who has been proceeded against ex parte. This argument is further strengthened by the dictum laid down in case of Bashir Ahmed (supra).

7. For the foregoing reasons and in agreeing with the principle laid down in the cases referred to above, this writ petition is accepted and the impugned orders dated 31-3-1999 and 26-7-1999 passed by Judge, Family Court/respondent No.1 are declared to be without lawful authority and of no legal effect with the result that the Family Court would proceed further after the stage of filing the written statement i.e. At the pre-trial reconciliation stage.

Cited by 10 cases

For educational and research use only — not legal advice. Verify against the official report before relying on it. See our Disclaimer.