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Constitutional Petition No. S‑1562 of 1980, decided on 23rd August, 1982.

‑‑ S. 12(3)‑‑Deposit of decretal amount amount‑Extension of time Judge, Family Court has inherent powers to extend time fixed for deposit of money in a money decree.

‑‑‑ S. 9‑Jurisdicfif of First Class Civil Judge to entertain suits‑Civil Judge. Ist Class having powers of entertaining suit of amount exceeding Rs. 15,000, does not lose jurisdiction to entertain suits involving an amount less than Rs. 15,000‑‑Civil Judge, 1st Class has all those powers that of IInd & IIIrd Class Civil Judges.‑[Jurisdiction].

Ameer Ahmad Khan for Petitioner.

S. Abbar Zia for Respondent No. 1.

Date of hearing : 23rd August, 1982.

This Constitutional Petition has been filed against the order/judgment of learned First Family Court and Senior Civil Judge, Karachi dated 15th September, 1980 whereby he had dismissed the suit of the petitioner for restitution of conjugal rights and at the same time decreed suit of the respondent for dissolution of marriage by way of Khula'. The two suits filed by the parties against each other were decided by one and the same judgment While decreeing the suit of the respondent the learned Family Court Judge had directed that the respondent shall pay to the petitioner an amount of Rs. 10,000 as consideration for Khula' within one month from the date of judgment i.e. 15‑9‑1980.

2. The amount was, however, not deposited within two months. On 12‑11‑1980 an application was moved by the respondent for extension of time. The learned Family Court Judge granted this application vide his order dated 16‑11‑1980 permitting the respondent to deposit the amount of Rs. 10,000 before 20‑11‑1980. The respondent complied with this order.

3. The grievance of the petitioner is two‑fold. Firstly it is contended that the finding of the learned Family Court Judge that the respondent is entitled to Khula' is based on misreading of evidence and secondly that the learned Family Court Judge after passing the decree had become functus officio and was not empowered to extend the time for depositing the amount.

4. So far as the first contention is concerned, the finding of the learned Family Court Judge cannot be said to be perverse or based on misreading of evidence. The respondent had alleged in her suit for conjugal rights that the petitioner used to commit unnatural offence i.e. sodomy upon her and that for this reason it was not possible for her to live with the petitioner. Although the learned Family Court Judge held that the allegation was not proved, yet he was of the view that as the allegation of sodomy has been made by the wife, it will. not be possible for her to live with her husband. It appears that what the Family Court Judge meant was that due to this false allegation of the respondent relations between the spouses would not have been more bitter and that the husband would be more cruel to her if she started residing with him. On this view of the matter the finding of fact of the learned Family Court Judge cannot be said to be perverse or based on misreading of evidence.

5. So far as the other contention regarding extension of time for deposit of amount of Rs. 10,000 being consideration fox Khula' is concerned, reliance has been placed by learned counsel for the respondent on subsection (3) of section 12 of the West Pakistan Family Courts Act in which it has been laid down that if the decree passed by a Family Court Judge provides for payment of amount, which is not paid by the judgment‑debtor then the amount shall be recoverable as arrears of land revenue. He has further argued that the failure to deposit the amount on the part of the respondent would not result in automatic dismissal of the respondent's suit, because it has not been specifically stated in the decree that if the amount is not deposited within one month, the suit shall stand dismissed. There is much force in this argument. The failure on the part of the respondent to deposit the amount of Rs. 10,000, would at the most entitle the petitioner to invoke the provision of section 12(3). The order of the learned Family Court Judge cannot be set aside simply on the ground that the time for deposit of amount as stated in the decree was extended by him. The learned Family Court Judge has extended the time on the ground that he had inherent powers to do so. If the application for extension of time is read in the context of section 12(3) of the Family Courts Act, it can be argued with justification that a Family Court Judge has inherent powers to extend time fixed for deposit of money in a money decree. The present case is also a case of money decree. There is no force, therefore, in the contention of the learned counsel for the petitioner that the learned Family Court Judge had become functus officio after passing the decree.

6. Learned counsel for the petitioner has further referred to the notifica tion of the District Judge whereby some change had been made in the jurisdic tion of various Senior Civil Judges. This notification is dated 14‑10‑1980 Le. prior to the order of the Family Court Judge, whereby the time was extended for deposit of amount. The notification which is Annexure 'C' says that all Ist Class Civil Judges are vested with the powers of Family Court Judges in suits involving amounts of more than Rs. 15,003. In view of this notification, it is argued that on 16‑11‑1980 when the learned First Family Court‑Judge bad extended the time for deposit of amount, he had no jurisdiction to act as a Family Court Judge in the matter. This plea is also without any substance. A Ist Class Civil Judge who is empower to entertain suits of amount exceeding Rs. 15,000, does not lose jurisdiction a to entertain suits involving an amount of less than Rs. 15,000. A Ist Class Civil Judge has got all those powers with which a Ilnd or IIIrd Class Civil' Judge is empowered. In view of this legal position it cannot be said that the learned Ist Family Court Judge had become functus officio after passing the decree. The constitution petition is, therefore., dismissed with no order as to costs.

Learned counsel for the petitioner makes a request that he may be allowed to withdraw the amount of Rs. 10,000 which has been deposited by the respondent in the Family Court. Mr. S. Abbas Zia has no objection, which he should not have. The petitioner is, therefore, allowed to withdraw the amount.

M. Y. M. Petition dismissed.

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