Jawab dawa ka right close or kharcha maqarar karne ka tareeqa.
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| Jawab dawa ka right close or kharcha maqarar karne ka tareeqa. |
فیملی کورٹ کوئی بھی طریقہ اختیار کر سکتی ھے جو 1964 فیملی ایکٹ کے خلاف نہ ھو۔
عدالتی فیصلے میں درج ذیل خصوصی نکات کو اہمیت دی گئی ہے جو اس کیس کے خاص پہلوؤں کو اجاگر کرتے ہیں:
### 1. **فیملی کورٹ کی جواب دعوی کا حق ختم کرنے کی صلاحیت**
فیملی کورٹ نے درخواست گزار کے **جواب دعوے** کو بند کر دیا تھا کیونکہ وہ مقررہ وقت پر **جواب دعوے** پیش نہیں کر سکا تھا۔ عدالت نے اس فیصلے کو جائز قرار دیا اور کہا کہ فیملی کورٹ کو اس اختیار کا استعمال کرنے کا حق ہے۔ عدالت نے اس بات پر زور دیا کہ فیملی کورٹ کو وقت پر **جواب دعوے** نہ دینے کی صورت میں، اس کے دفاعی حق کو بند کرنے کا اختیار حاصل ہے، تاکہ عدالتی کارروائی کو منظم رکھا جا سکے۔
### 2. **فیملی کورٹ کی خود مختاری**
فیصلے میں عدالت نے یہ واضح کیا کہ فیملی کورٹ کو اپنے طریقہ کار کو ترتیب دینے کا مکمل اختیار ہے، حتیٰ کہ وہ طریقہ کار جو عام مدنی قانون میں نہ ہو۔ عدالت نے کہا کہ اگر درخواست گزار اپنے **جواب دعوے** کو وقت پر پیش نہیں کرتا، تو فیملی کورٹ کو اس کی دفاعی صلاحیت کو بند کرنے کا حق ہے، اور اس کا مقصد عدالتی عمل کو بہتر بنانا ہے۔
### 3. **جواب دعوئ کا حق ختم کرنے کا قانونی جائزہ**
عدالت نے اس بات پر بھی روشنی ڈالی کہ فیملی کورٹ کا **جواب دعوے** بند کرنے کا حکم قانونی طور پر جائز ہے، یہاں تک کہ قانون میں اس کے لیے مخصوص دفعہ موجود نہیں۔ عدالت نے اسے سی پی سی (سول پروسیجر کوڈ) کی دفعہ 8 اور 9 کی تشریحات کے مطابق قرار دیا، جو واضح کرتی ہے کہ ایسی صورتوں میں عدالت کے پاس عمل درآمد کرنے کے لیے خود مختاری ہے۔
### 4. **نان نفقے کی رقم کی مناسبیت**
عدالت نے نان نفقے کی رقم کے بارے میں فیصلہ کیا کہ جو رقم فیملی کورٹ نے مقرر کی تھی وہ مناسب اور حقیقت پر مبنی ہے، خاص طور پر مدعا علیہ کی مالی حالت اور درخواست گزاروں کی ضروریات کو مدنظر رکھتے ہوئے۔ عدالت نے اس رقم کو درست اور معقول قرار دیا، اور اس کے خلاف کوئی ٹھوس دلیل یا ثبوت پیش نہ کرنے پر، فیصلہ برقرار رکھا۔
### 5. **شواہد کی عدم موجودگی اور حقائق کی تردید**
عدالت نے یہ بھی نوٹ کیا کہ درخواست گزار نے مالی حالت کے بارے میں مناسب شواہد پیش نہیں کیے، اور اس کے **جواب دعوے** میں جو شواہد پیش کیے گئے وہ مؤثر ثابت نہ ہوئے۔ اس وجہ سے، عدالت نے مدعا علیہ کی درخواست کو مسترد کرتے ہوئے فیملی کورٹ کے فیصلے کی توثیق کی۔
یہ نکات اس بات کو واضح کرتے ہیں کہ عدالت نے کس طرح عدالتی طریقہ کار اور مالی ضرورتوں کے لحاظ سے فیصلے کو منطقی اور قابل قبول قرار دیا۔
Must read judgement
Stereo.HCJDA.38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.13531/2022
Raja Ibadat Sajjad Khan Vs. Mst. Shehnaz Kousar etc.
Date of hearing
21-11-2022
Petitioner by
M/s Ali Rana and Khawaja Haseeb
Ahmad, Advocates.
Respondents No.1 to
3 by
Ch. Zaheer Abbas, Advocate.
ABID AZIZ SHEIKH, J. This Constitutional Petition is
directed against the judgments and decrees dated 22.02.2021
and 26.01.2022 (impugned judgments and decrees), passed
by the learned Judge Family Court, Lahore and learned
Appellate Court, respectively.
2.
Relevant facts are that plaintiffs/respondents No.1 to 3
(respondents) filed a suit for recovery of maintenance
allowance against the defendant/petitioner (petitioner) on
06.09.2018. In said suit, petitioner’s right to file written
statement was closed on 17.04.2019. The said order was upheld
by this Court vide order dated 19.06.2019 in Writ Petition
No.37030/2019. The learned Judge Family Court, after framing
of issues, recorded respondents’ evidence and the
respondents/plaintiffs’ witnesses (PWs) were also crossexamined by the petitioner. However, vide orders dated
W.P. No.13531/2022
- (2) -
13.11.2020 and 30.01.2021, the petitioner was not allowed to
produce his evidence as his right of defence was already closed.
Finally, the suit was decreed vide judgment and decree dated
22.02.2021 for maintenance allowance of respondents No.2 &3
(minors) @ Rs.35,000/- per month each and @ Rs.25,000/- for
respondent No.1 (wife). The said judgment was upheld by the
learned Appellate Court on 26.01.2022, hence, this
Constitutional Petition.
3.
Learned counsel for the petitioner submits that there is no
provision in the Family Courts Act, 1964 (Act) to close
defendant’s right to file his written statement, therefore, the
order dated 17.04.2019 was not sustainable. He further submits
that merely because petitioner failed to file his written
statement does not mean that he could not produce his own
evidence in rebuttal. He place reliance on “Qamar Shahzad
Versus Judge Family Court, Ferozewala and 4 others” (2021
MLD 1859). He adds that even on merit, the respondents could
not prove the financial status of the petitioner who was jobless
at the relevant time, therefore, the maintenance allowance fixed
by the learned Courts below is beyond the financial capacity of
the petitioner.
4.
Learned counsel for the respondents, on the other hand,
supported the impugned judgments and decrees.
W.P. No.13531/2022
- (3) -
5.
Arguments heard. The first question requires
determination is whether under the Act, the Family Court is
vested with the power to close the right of written statement of
the defendant. In order to answer this question, it is expedient to
reproduce Section 8(2) & Section 9(1) (Punjab Amendment) of
the Act hereunder:
“8(2) Every summons issued under clause
(b) of sub-section (1) shall be accompanied
by a copy of the plaint, a copy of the
schedule referred to in sub-section (2) of
section 7, and copies of the documents and
list of documents referred to in sub-section
(3) of the said section.”
“Punjab Amendment:
9(1) On the date fixed under section 8, the
defendant shall appear before the Family
Court and file the written statement, a list of
witnesses and gist of evidence, and in case
the written statement is not filed on that date,
the Family Court may, for any sufficient
reasons which prevented the defendant from
submitting the written statement, allow the
defendant to submit the written statement and
other documents on the next date which shall
not exceed fifteen days from that date.”
Plain reading of the aforesaid provisions manifests that every
summons, issued under Section 8 of the Act, shall be
accompanied by a copy of the plaint, a copy of schedule
referred to and copies of the documents and list of documents.
Whereas under Section 9(1) of the Act, on the date fixed under
W.P. No.13531/2022
- (4) -
Section 8 of the Act, the defendant shall appear before the
Family Court and file the written statement, a list of witnesses
and gist of evidence. In case the written statement is not filed
on that date, the Family Court may, for any sufficient reason,
allow the defendant to file written statement on the next date
which shall not exceed 15 days.
6.
No doubt, there is no specific provision under the Act to
strike off the right of defence of defendant for failure to file
written statement. However, this Court in “Khalil-ur-Rehman
Bhutta v. Razia Naz and another” (1984 CLC 890), held that
for the orderly dispensation of justice under the Act, in the case
of a contumacious default of a defendant to file written
statement, the Family Court will be well within its authority to
make an order in the nature of Order VIII Rule 10 of the Code
of Civil Procedure, 1908 (CPC). The relevant part of the
judgment is reproduced hereunder:
“(6) As regards the contention that the
petitioner's defence could not have been
struck off, it is to be seen that despite
having been given opportunities, he did
not file the written statement. It is true,
that except sections 10 and 11, C.P.C.,
which have been made applicable to a
Family Court, under section 17 of the Act
the rest of the C.P.C. on its own force,
does not apply to the proceedings before
it. It is, however, to be kept in mind that
the Family Courts Act, does not provide
W.P. No.13531/2022
- (5) -
for every conceivable eventuality and
unforeseen circumstance. Though it is a
forum of limited jurisdiction yet it has to
regulate its own proceedings. A situation
may crop up, before a Family Court that a
defendant persistently defaults in
submitting his written statement and acts
contumaciously, as happened in the
instant case. Will the Family Court be
powerless to proceed against such a
litigant? If the Court is held to be denuded
of authority, to pass a punitive order
against such a defaulter that would result
in paralysing its function. It must be
remembered that the Family Courts Act
has been enacted with the object of
expeditious disposal of the disputes
relating to the family affairs. Thus, for the
orderly dispensation of justice under the
Act, in the case of a contumacious default
of a defendant, to file the written
statement, the Family Court will be well
within its authority to make an order, in
the nature of one envisaged by Order VIII,
rule 10, C.P.C. and deprive him of his
right to file the written statement. I think
that the learned trial Court proceeded
against the petitioner on a similar line and
by using the expression as to the striking
of his defence, it simple meant to take
away his right of filing written statement.
Anyhow, even if there is some betrayal of
over-stepping by the trial Court in view of
the conduct of the petitioner I do not feel
persuaded in this behalf, to strike down
the order dated 28th February, 1983.”
The same view was also expressed by this Court in “Fakhar
Abbas Versus Additional District Judge Tandlianwala District
W.P. No.13531/2022
- (6) -
Faisalabad and 3 others” (2017 CLC Note 22), where it was
held as under:
“12. So far the contention of the learned
counsel that the Family Court is not vested
with any such authority to either strike off
the defence of the petitioner or to close his
right of defence. It is held that there is no
cavil that though no such express
provision exists in the Family Courts Act
1964, which gives authority to the court to
close the evidence of a party or to strike
off his right of written statement but on the
same account there is even no provision to
this effect that in case of failure by a party
to file the written statement or to lead
evidence his right of filing of written
statement or evidence could not be closed
in any circumstance. As already observed
that the petitioner has availed sufficient
opportunities to file the written statement
but he has failed to submit the same. The
Family Court cannot be made helpless in
such a situation because it would not be in
the interest of justice. Family Courts are
established under the Family Courts Act,
1964, which is a special law thus the court
can adopt any mode which is not
inconsistent to the Family Courts Act 1964
or the Rules framed there under, for
advancement and meeting the ends of
justice.”
7.
The Hon’ble Supreme Court of Pakistan in “Muhammad
Tabish Naeem Khan Versus Additional District Judge, Lahore
and others” (2014 SCMR 1365), on this issue held that Family
Court is a quasi-judicial forum, which can draw and follow its
W.P. No.13531/2022
- (7) -
own fair procedure and thus if defendant does not file written
statement within time allowed by the Court, the Court shall
have the inherent power to proceed ex-parte against him, to
strike off defence and to pass an ex-parte decree in line with the
principles enunciated by the CPC. The relevant observation by
the Hon’ble Supreme Court is reproduced hereunder:
“We are not persuaded to hold, that the ex
parte decree dated 4-7-2008 was void, for
the reason that there is no provision in the
West Pakistan Family Courts Act, 1964 to
strike off the defence of the petitioner,
when he failed to file the written statement,
thus it (decree) should be ignored; suffice it
to say that the Family Court is the quasi
judicial forum, which can draw and follow
its own procedure provided such procedure
should not be against the principles of fair
hearing and trial, thus if a defendant of a
family matter, who is duly served; and
especially the one who appears and
disappears and also does not file his
written statement within the time allowed
to him by the Court, the Court shall have
the inherent power and ample power to
proceed ex parte against him, to strike off
the defence and to pass an ex parte decree
in line with the principles as are
enunciated by the Civil Procedure Code. In
any case, such order (striking off defence)
cannot be said, treated or deemed to be
void, which should be ignored as nullity in
the eyes of the law as argued by the
learned counsel for the petitioner. If the
petitioner was aggrieved of the order, he
should have either got it set aside by filing
an application before the Family Court or
W.P. No.13531/2022
- (8) -
by challenging the same in appeal which
admittedly was not so done.”
8.
The case of „Qamar Shahzad‟ supra, relied upon by the
learned counsel for the petitioner, does not support his claim
rather follow the dictum laid down in aforenoted judgments and
therein it is concluded that Family Court has authority to make
an order in the nature of Order VIII Rule 10 CPC and deprive
the defendant to file written statement. Notwithstanding the
above legal position, even otherwise when the order dated
17.04.2019 was upheld by this Court on 19.06.2019 in Writ
Petition No.37030/2019 and was not further challenged by the
petitioner, he cannot claim that Family Court had no
jurisdiction to close the right of written statement of the
petitioner.
9.
The law is settled that failure of a defendant to file
written statement within stipulated time period entails striking
off his defence in terms of Order VIII Rule 10 CPC. However,
the moot question is that whether defendant can cross-examine
the PWs, take part in the arguments and can also lead evidence
to disprove the facts stated in the plaint, even though his right
to file written statement was already struck off. In this regard,
the Hon’ble Supreme Court in “NATIONAL LOGISTIC CELL
(N.L.C.) Versus HAZRAT ALI and others” (2010 SCMR 970)
W.P. No.13531/2022
- (9) -
did not interfere in the impugned judgment on the ground that
defendant not only cross-examined the PWs but also led his
own evidence. The learned Sindh High Court in “MEHAR and
others Versus PROVINCE OF SINDH through DISTRICT
GOVERNMENT PLEADER, KHAIRPUR and 4 others” (2020
MLD 371) held that it is settled law that failure of a defendant
to file written statement will result in striking off his defence
under Order VIII Rule 10 CPC, however, the defendant can
cross-examine the PWs and lead his evidence to disprove the
facts stated in the plaint. In “Mrs. RUBINA ALI through Special
Attorney Versus AYESHA KAMAL through Legal heir and 4
others” (2014 MLD 750), the learned Sindh High Court upheld
the judgment of the forums below on the ground that despite
issuance of summons, the defendant did not bother to file
written statement and/or adduce any evidence in order to rebut
the assertions made by the plaintiffs on oath. Regarding the
right of cross-examination, this Court in “MUHAMMAD
NADEEM Versus JUDGE FAMILY COURT and 2 others”
(2012 CLC 1361) and “Messrs RAVI ENTERPRISES through
Proprietor and another Versus ALLIED BANK OF PAKISTAN
through Provincial Chief and 3 others” (2005 CLD 1425) held
that defendant will have right to cross-examine the PWs even
his right to file written statement was struck off. In “Mst.
BUSHRA BANG SHIRANI and another Versus MUHAMMAD
W.P. No.13531/2022
- (10) -
HASSAN and another” (1992 MLD 1116), the learned Sindh
High Court held that even when right to file written statement
was closed, the defendant can still cross-examine the PWs and
take part in the arguments.
10. From the above case law, it is not difficult to deduce that
in absence of written statement, the defendant can still crossexamine the PWs, lead evidence to disprove the facts averred in
the plaint and also take part in the arguments. Now we will
examine if petitioner was fairly allowed opportunity to exercise
aforesaid rights in the proceedings.
11. In the present case, though petitioner’s right to file
written statement was closed on 17.04.2019 but he was given
ample opportunity not only to cross-examine the PWs but also
to argue the suit at the time of final arguments. How the Family
Court, vide order dated 30.01.2021, specifically not allowed the
petitioner to produce his evidence on the ground that his
defence was closed on 17.04.2019. The petitioner neither
challenged the said order before the learned Family Court nor
before any higher forum. It is also relevant to note that even
earlier when the evidence of plaintiffs/ respondents was
concluded, the learned Trial Court fixed the case for final
arguments vide order dated 06.10.2020, however, the petitioner
agitated before the learned Trial Court (as per Para No.9 of this
W.P. No.13531/2022
- (11) -
petition) that his right to defence was still intact, resultantly, the
learned Trial Court, vide order dated 13.11.2020, allowed the
petitioner only to cross-examine the PWs but not allowed him
to produce his evidence. The petitioner did not challenge the
order dated 13.11.2020, whereby he was only allowed to crossexamine the witnesses, rather accepted the said order and crossexamined the PWs. This proves that petitioner had no intention
to lead his evidence to disprove the facts stated in plaint. The
petitioner is now estopped by his own conduct and cannot
agitate this ground for the first time in this Constitutional
Petition.
12. Now coming to the merits of the case, the respondents
No.2 & 3 are admittedly minor daughters of the petitioner,
whereas respondent No.1 is his legally wedded wife. The
petitioner is not only legally but also morally bound to maintain
them till their legal entitlement. Admittedly, the respondents
No.2 & 3 are grown up and studying in university, therefore,
amount of Rs.35,000/- per month each for their livelihood,
including education etc., is neither exorbitant nor irrational
considering the prevailing inflation. The amount of Rs.25,000/-
for respondent No.1 is also not excessive to meet financial
needs for her livelihood. Regarding the financial status of the
petitioner, the record, including oral and documentary evidence
W.P. No.13531/2022
- (12) -
produced by respondents, shows that petitioner is a Civil
Engineer and doing his construction business in the name and
style “Beams Construction” and his monthly income is more
than three hundred thousand. There is nothing in rebuttal to the
evidence of respondents/plaintiffs, as petitioner’s right to file
written statement was closed and further during the crossexamination, respondents/ plaintiffs’ claim/evidence remained
un-rebutted/unshaken.
13. In view of above discussion, no illegality and infirmity is
found in the concurrent findings of the learned two Courts
below, hence, this petition being meritless is dismissed.
(ABID AZIZ SHEIKH)
JUDGE
Approved For Reporting
JUDGE