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KHURRAM GHULAM RASOOL versus SHAZIA KHURRAM

ections Sections 5, 17A and 21A maintenance suit for recovery Im temporary restitution property Restriction order for defendant to set aside his property - The question was whether the section of the Family Courts Act 21A Supply, Act - Under section 17A of the applicant / defendant, any person without interim injunction may apply that it is illegal to ban the separation of his property because the Family Court It was approved at the start of the proceedings and the respondent / on-demand respondent for interim maintenance of the plaintiff / plaintiff case moved a few months later. In order to prevent this legal protection, the requisite ruling was that the applicant could sell his property. - Accuracy - The family court did not justify in passing the order preventing the applicant from separating his property. Not subject to this case because there were no harsh circumstances that ordered the Family Court to pass an order. Otherwise, * the amount of the attachment before the judgment - the record shows that the plaintiff had violated Section 21A of the Act. Under the first date of hearing of the petition stated that the defendant was a foreigner and that he sold the property, therefore, he was barred from separating his property - the Family Court issued the order on the first date. That the defendant had banned the separation or sale of the property so that the expected injunction could be applied effectively. - It was a premature action of the plaintiff that he would file the application on the first day. The act was against the mandate of the provision of a provisional or final order, not approved.

P L D 2017 Lahore 689

Before Jawad Hassan, J

KHURRAM GHULAM RASOOL—Petitioner

versus

SHAZIA KHURRAM and others—Respondents

Writ Petition No.6955.of 2017, heard on 24th March, 2017.

(a) Family Courts Act (XXXV of 1964)—

—Ss. 5, 17-A & 21-A—Suit for recovery of maintenance—Interim maintenance—Restraining order at the time of institution of suit for defendant to alienate his property—Question was as to whether provision of S.21-A of the Family Courts Act, 1964 could be invoked without any order of interim decree under S.17-A of the Act— Petitioner/defendant contended that restraining order not to alienate his property was illegal as the same was passed by Family Court at the outset of proceedings and respondent/plaintiff moved application for interim maintenance after few months—Respondent contended that restraining order was necessary to secure legal rights in the light of apprehension that petitioner might sell his property—Validity—Family Court was not justified in passing the order restraining the petitioner from alienating his property which was not subject matter of the suit because no hard circumstances existed which had made the Family Court to pass an order which otherwise amounted*to attachment before judgment—Record showed that plaintiff on the first date of hearing filed application under S.21-A of the Act, on the ground that the defendant was living abroad and would sell the property, therefore, he be restrained from alienating his property—Family Court on the first date had passed status quo order that the defendant was restrained to alienate or sell the property so that expected decree be executed effectively—Such was a premature act of the plaintiff to file the application on the first day because it was against the mandate of procedure provide in the Act as the interim or final decree, had not been passed—Interim maintenance was allowable under S.17-A of the Act, and after recording of evidence and hearing the parties final decree was to be passed and when maintenance was not being paid in pending suit, then S.21-A of the Act could be invoked, if all the ingredients of S.21-A were fulfilled—Intention of the Legislature was very clear with regard to the attachment before judgment that to preserve and protect the property, which was in dispute and for the satisfaction of the decree, then interim order was to be passed; that the basic criteria given for passing restraining order of the property in dispute was for the satisfaction of the decree if considered necessary— Family Court merely on presumptions and apprehensions had assumed without any cogent and convincing evidence on record that after passing of maintenance order, the defendant would abscond out of country and decree would not be satisfied—Family Court had not followed the prescribed procedure provided in law—Power given in S.21-A of the Act was presumptive and not punitive—Jurisdiciton of the court was of an extraordinary in nature and should be exercised sparingly and strictly in accordance with the procedure prescribed by the law—Present suit related to maintenance and Family Court had misconstrued the provision of S.21-A of the Act, which could only be exercised in a suit where subject matter was that of property, if the decree (interim or final) was not satisfied by the defendant, in other words, the party, filing the suit, should have a semblance of right or title over the property—For exercising the powers under S.21-A of the Act, the criteria for the court was to see that party filing the suit had semblance of right or title over the property; compelling cause of action was to be stated by the court; previous record of the defendant was to . be seen that he had entered into any agreement to sell or he was trying to further alienate his property through any other mode, like gift or exchange and whether interim maintenance was not being paid by him—Defendant, in the present case, had never refused to maintain his family and was steadily paying maintenance every month, thus complying with the interim decree which was being satisfied—Present suit was only for maintenance, and relief sought was being adhered to on the fÓrm; of payment of interim maintenance, so issuance of restraining order was undesirable—By merely filing a suit/application, or raising any plaint against the defendant did not constitute a right to restrain the defendant from alienating his property—Facts from which the intention of the defendant might be inferred for selling/disposing of the property or portion of the property were to be proved through satisfactory evidence that i.e. an attempt to sell property, benami transfer, rapid sale of the property, past conduct—Transaction of disposing of property must be subsequent to the suit—Mere fact that plaintiffs had claimed for maintenance allowance against the defendant and had an apprehension that the defendant would abscond because he was living abroad for earning his livelihood, was not enough to pass the impugned order—Section 21-A of Act was preventive and not punitive—Family Court had passed impugned order merely on apprehension without application of judicial mind—Impugned order was set aside—-Constitutional petition was allowed accordingly, [pp.694, 695, 696, 697, 698 ] A, B, C, D, F, G, H, I&J

Bank Alfalah Limited v. Messrs Calimate Telips Telecom Ltd. and 5 others 2016 CLD 1202 and Muhammad Athar Hafeez Khan v. Messrs Ssangyong and Usmani JV PLD 1962 SC 119 ref.

(b) Family Courts Act (XXXV of 1964)—

Ss. 5, 17, 17-A & 21-A—Civil Procedure Code (V of 1908), 0.XXXVIII, R.5—Suit for recovery of maintenance—Interim maintenance—Applicability of Civil Procedure Code, 1908—Scope— Taw Officer had argued that since Civil Procedure Code, 1908 was not applicable as per S.17 of the Family Courts Act, 1964 but if on any matter, the provisions of the Act were silent provisions of C.P.C, were applicable—Validity—Principles of S.21-A of the Family Courts Act, 1964 were similar to the principles of O.XXXVIII, R.5, C.P.C., hence, the objective of O.XXXVIII, R.5, C.P.C, was only preventive and not punitive, [p. 695] E

Ghulam Murtaza v. Additional District Judge (ii) D.G. Khan and 2 others 1999 CLC 81; Muhammad Ather Hafeez Khan v. Messrs Ssangyong and Usmani JV PLD 1962 SC 119; Mohiuddin Mdlla v. (1) The Province of East Pakistan (2) Abdus Sobhan and (3) Ketab Ali PLD 2011 Kar. 605; Messrs STFA C. & Co. v. Naeem Khan 2005 CLC 1270 and Mrs. Rukhsana Yasmeen (Yahya) v. Nazaz Ali and 7 others 2012 MLD 171 ref.

Ch. Riaz Akhtar for Petitioner.

Yasir Ali for Respondents.

Ms. Sadia Malik, Assistant Attorney General for Pakistan on Court's call.

Ahmad Khan and Amad-ud-Din Fazil, Research Officers/Civil Judges, Lahore High Court, Multan Bench, Multan

Date of hearing: 24th March, 2017.

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