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Constitutional Petition No. S‑107 of 1981, decided on 19th February, 1983.

S. 7‑‑Production of witness‑Discretion of Court is required to be exercised judicially and not capriciously or arbitrarily.‑[Witness].

Art. 9‑West Pakistan Family Courts Act (XXXV of 1964), S. 7 (2)‑Examination of witnesses‑Family Court granting application of respondent No. 2 for permission to call witnesses by consent of petitioner ‑ Perusal of impugned judgment showing that no objection taken to examination of witnesses before family Court and petitioner availed opportunity given to him to cross‑examine said witness‑Contention of petitioner that family Court illegally allowed respondents to lead evidence, held, cannot be raised for first time before High Court in Constitutional jurisdiction.‑[Witness].

‑‑‑‑ S. 5 read with Sched.‑‑Dissolution of marriage ‑ Jurisdiction Family Court on issue of jurisdiction depending upon residence of wife and giving finding of fact that she was residing with her brother who is at Karachi permanently in connection with his service and she clearly stated that she wanted to live with him permanently as her life was in danger at place of her husband‑Such findings of fact supported by evidence‑Husband not choosing to step in witness‑box and his conduct going to discredit truth of his case‑Finding of fact reached by Court below, held, cannot be interfered with merely for reason that another view could be possible when said Court on evidence on record competent to give said decision‑‑Mere plea that finding was erroneous, held, could not render same as without lawful authority.‑‑[Jurisdiction].

Khairun Nisa v. Muhammad Ishaq P L D 1972 S C 25 ; Zulfikar Khan A wan v. Secretary Industries 1974 S C M R 530 ; Muhammad Hussain v. Sikandar and others P L D 1974 S C 139 and Mastan ,Shah v. Syed Dilawar Hussain 1982 S C M R 707 rel.

‑‑ S. 5 ‑ Provisional Constitution Order (I of 1981), Art. 9‑‑Dissolution of marriage‑Issue as to jurisdiction‑‑‑Decision of family Court about jurisdiction merely a procedural matter not affecting decision of case on merit and no prejudice caused to petitioner Contention that family Court assuming jurisdiction ought to have decided question of jurisdiction as a preliminary issue, held, without force and cannot be pressed into service in Constitutional proceedings. [Jurisdiction].

Arshad Qureshi for Appellant.

Wahid Abid for Respondent No. 2.

Nemo for Respondent No. 1.

Date of hearing a 18th August, 1982.

"The petitioner seeks to challenge the judgment and decree passed by the learned Family Judge at Karachi, on 12‑4‑1981 in Family Suit No. 2328/1979 dissolving the marriage of the Respondent No. 2 (wife) with the petitioner.

1. (,a) Facts briefly stated for purposes of this case are that the marriage between the petitioner took place on 17‑7‑1978 at Pak Pattan Sharif. A child was born out of the wedlock on 7‑ I‑1979.

Inter alia, on the plea of cruelty, the respondent No. 2 (wife) who had migrated to Karachi where she permanently started residing with her brother is employed in Pakistan Customs, on 25‑10‑1979 filed the above‑mentioned against petitioner dissolution of her ' marriage. According to her the 1IIrd Family Court at Karachi had the jurisdiction to entertain the said suit as she resided within the jurisdiction of Liaquatabad Police Station, Karachi.

The petitioner contested the above suit. In the written statement filed by him and also in an application made by him under rules 5 and 6 of West Pakistan Family Court Rules, be challenged the jurisdiction of the Family Court at Karachi and prayed for return of the plaint to be presented before the proper Court at Pak Pattan. The objection of the petitioner to the jurisdiction of the Court at Karachi was based on his plea that the respondent No. 2 was ordinarily resident of Pak Pattan (Sahiwal) and that neither any cause of action arose within the jurisdiction of the Court at Karachi nor the parties ever resided together at‑Karachi.

2. It appears that though initially no issue as to the jurisdiction of the Family Court at Karachi to entertain the suit was framed, however subsequently the learned Court framed an additional issue to that effect.

The issues framed which finally came up for decision before the Court read as follows :‑‑

"(1) Whether the plaintiff was subjected to cruelty at the bands of the defendant

(2) Whether the Court has jurisdiction to adjudicate upon the matter

(3) Whether the plaintiff is entitled to the dissolution of her marriage

(4) What should the decree be "

The said suit was transferred to the Court of XXIV Family Judge, who on 26‑1‑1981 proceeded to record statement of respondent No. 2 (wife) and her witnesses, Since however the Advocate for the petitioner was not present, examination‑in‑chief of the respondent No. 2 and one of her witnesses namely Syed Nasiruddin were completed and the case was adjourned for cross‑examination by petitioner's Advocate to another date. On 9‑2‑1981 cross‑examinations of the respondent No. 2 and her witness above‑named were completed, and another witness on her behalf was also examined and cross‑examined.

3. It would be relevant to Mention here that on behalf of the petitioner, an application under rules 5 and 6 of West Pakistan Family Courts Rules, was filed on 8‑7‑1980 before the learned Court, challenging the jurisdiction of the Family Court at Karachi, whereupon an additional issue (subsequently numbered as Issue No. 2 as above‑mentioned) as to the jurisdiction of the Court was framed.

However after the evidence of the respondent No. 2 and her witness was completed on 9‑2‑1981, the Advocate for the petitioner on 9‑3‑1981 moved yet another application under rules 5 and 6, for return of, the plaint. This application was dismissed by order passed by the learned Family Court on 12‑3‑1981 on the ground that an additional issue as to the jurisdiction of the Court had already been framed, that the respondent No. 2 and her witnesses had led their evidence on this issue and that the issue of jurisdiction was to be decided on merit after recording the evidence of the defendant (petitioner).

The petitioner against the above order filed Appeal No: 49 of 1981 which however was dismissed by VII Additional District Judge for the. reason that against the said order no appeal was competent.

According to the petitioner, before he could approach the High Court against the order passed by the appellate Court in Appeal No. 49/81, the Family Court hastened' to pass judgment and decree on 12‑4‑1981 in the suit, dissolving the marriage of the petitioner with the respondent No. 2.

Perusal of the impugned judgment however shows that the petitioner (defendant) had chosen to remain absent and did not come forward to give evidence on his own behalf on the date of bearing and thus the Court proceeded to decide the suit. The learned Family Court after holding under Issue No. 2, on the material on record, that the respondent No. 2 is permanently residing at Karachi and that she wants to live at Karachi as her life was in danger at Pak Pattan, answered the other issues also in the affirmative and decreed the suit dissolving the marriage between the parties.

3. Against the above judgment and decree passed on 12‑4‑1981 in Family Suit No. 2328 of 1981, the petitioner has filed this petition under P. C. O., 1981.

4. The learned counsel for the petitioner in support of the petition urged the following grounds :‑

(i) That the respondent No. 2 contravened the provisions of section 7

(2) of West Pakistan Family Courts Act inasmuch as she failed to disclose the names of her witnesses and gist of their evidence in the plaint, and for the same reason the Family Court allowed her illegally to lead evidence without any notice to the petitioner and (If) that the Family Court at Karachi had no jurisdiction to entertain the suit and thus the judgment and decree passed by the said Court are nullity in the eyes of the law.

5. As regards the first point urged by the learned counsel for the petitioner, it would be relevant to reproduce herein below subsection (2) of section 7 of West Pakistan Family Courts to which reference was made by the learned counsel for the petitioner :‑

Section 7 (2)‑"The plaint shall contain all material facts relating to the dispute and shall contain a Schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose Provided that the parties may, with the permission of the Court, call any witness at any later stage, if the Court considers such evidence expedient in the interest of justice".

A perusal of above‑mentioned provisions of law would bow that the Family Court may in appropriate cases grant permission to the parties to call at any later stage any witness if the Court considers that such evidence is expedient in the interest of justice. Though the discretion is required to be exercised judicially and not capriciously or arbitrarily, in the present case 1 A find that the Family Court granted the application moved tin behalf of that respondent No. 2 (wife) for permission to call the witnesses named therein'. by consent of the other side. A certified copy of the application dated 16‑10‑1980 with endorsement of no‑objection from the other side and order of the Court granting the said application, in view of no‑objection given; is on the record as Annexure E' to the petition: In view of‑these facts it is e not open to the petitioner to contend before this Court in exercise of its Constitutional jurisdiction, that the respondent No. 1 Family Court illegal allowed the respondent No. 2 to lead the evidence without any notice to the petitioner. Perusal of the impugned judgment, further shows that no objection was taken to the examination of the witnesses before the learned Family Court and that the Advocate for the petitioner availed of the opportunity given to him to cross‑examine the said witnesses. No such objection can, therefore, be allowed to be raised for the first time in these proceedings.

6. The learned counsel for the petitioner then argued that the Family Court at Karachi was not competent to entertain the suit for dissolution of marriage filed by the respondent No. 2. It was contended that the respondent No. 2 was a resident of Pak Pattan Sharif at which place she was married to the petitioner. It was further argued that a casual visit to Karachi to file the suit for dissolution of marriage, would not confer jurisdiction upon the Family Court at Karachi. Reliance was placed on the case of Muhammad Aslam v. Mumtaz Begum P L D 1977 Lah. 458. In the said case order passed under section 9 of the Muslim Family Laws Ordinance 1961 granting maintenance to the wife, was challenged by the husband on the plea of want of territorial jurisdiction of tile Union Council. It was, argued that the wife when filing her application had mentioned her residence at Wah Cantt. falling within territorial limits of another Local Council. After referring to rule 3(c) of West Pakistan Rules framed under Muslim Family Laws Ordinance, 1961, which provided that the Union Council of the Union of Town in which wife is residing at the time of her making the application shall have jurisdiction. Honourable Mr. Justice Muhammad Afzal Zullah (as he then was) proceeded to hold :‑

"No doubt the above‑quoted rule confers jurisdiction on that local council where the wife resided at the time of making the application. Residence has not been defined in the rules. However, keeping in view the context, it would mean permanent and/or ordinary and not casual residence".

The above principle laid down by the learned High Court, it would be seen, does not support the case of the petitioner.

It is not necessary to refer to some other cases referred by the counsel for the petitioner as I find that the learned Family Court on the issue of jurisdiction depending upon the residence of the respondent No. 2 (wife), has given a finding of fact to the effect that she is residing with her brother in permanent service at Karachi. It was further held :.‑

". . . . . it is admitted fact that the plaintiff is residing since September, 1979 in Karachi and as per certificate Exh. 7 the another of the plaintiff with whom the plaintiff is residing is permanently in Karachi in connection with the service. The plaintiff has clearly stated that she wants to live at Karachi as her life is in danger at Pak Pattan. It is clear that after a long litigation when the plaintiff alleged that her life is in danger at Pak Pattan she will naturally live permanently In Karachi".

The above findings of fact are supported by evidence of the respondent No. 2 (Exh. 5), her brother Nasiruddin (Exh. 6) and herfather S. Muslim Nizami (Exb. 7).

The petitioner, on the other hand, chose not to step in the witness‑box and submit to cross‑examination which conduct in view of the principle laid down by the Honourable Supreme Court in the case of Khairun Nisa v. Muhammad Ishaq P L D 1972 S C 25, "would be the strongest possible circumstance gong t discredit the truth of his case.

In the circumstances the findings of fact reached by the Family Court, cannot be interfered with merely for the reason that another view could b possible, as the said Court on the evidence on record was competent to give the said decision, and that a mere plea that the finding given was erroneous, would not render the same as without lawful authority. Reference if needed be made to the authoritative principle laid down in the cases of Zulfikar Khan Awan v. Secretary Industries 1974 S C M R 530; Muhammad Hussain v. Sikandar and others P L D 1974 S C 139 and Mastan Shah v. Syed Dilawar Hussain1982 S C M R 707

7. Lastly it may be observed that the learned counsel had also contended that the Family Court ought to have decided the question of jurisdiction as a preliminary issue. I, however, find that this objection cannot be sustained. These are mere procedural matters which do not affect the jurisdiction of Court or tribunal. No prejudice whatsoever is shown to have been caused to the petitioner affecting the decision of the case on merits, and further finding that g the procedure adopted by the Family Court to decide the issue of jurisdiction on merit after recording the evidence was fully justified, I have no hesitation in holding that this objection is without any force and cannot be pressed in service in these Constitutional proceedings.

8. The upshot of the above discussion is that this petition is dismissed. The above are the reasons for the short order passed on 18‑8‑1982 dismissing the petition.

M. Y. H. Petition dismissed.

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