P L D 2019 Lahore 226

Before Muzamil Akhtar Shabir, J

NUSRAT BIBI and another---Petitioners
Versus
ZEESHAN AHMAD and another---Respondents
Writ Petition No.964 of 2019, decided on 10th
January, 2019.
(a) Family Courts Act (XXXV of 1964)---
----S. 14(3) --- Interim/interlocutory order passed
by Family court---
Appeal---Scope---Decision given by the Family Court was
appealable
provided the said decision was not an interim/interlocutory order as
provided in subsection (3) of S.14 of the Family Courts Act, 1964---
However,
every order passed during the pendency of a family suit
could not be treated
merely as an interlocutory order if the said order
finally determined an
issue---Appeal under S.14 of the Act was not
barred against every interlocutory
order and remedy of appeal, unless
specifically barred, would be available
against a decision relating to a
right or a remedy provided under the law
subject to the condition that
finality was attached to such an order or
decision and nothing
remained to be further decided between the parties on the
said issue.
Muhammad
Zaffar Khan v. Mst.Shehnaz Bibi and 2 others 1996 CLC 94;
Imtiaz Ahmad Khan v.
Mst. Aqsa Manzoor and others PLD 2013 Lah.
241; Rao Muhammad Owais Qarani v.
Mst. Tauheed Aisha and others
1991 MLD 1097; Mst. Naureen v. Ehsan Sabir,
Family Judge, Faisalabad
and 2 others 2010 CLR 110; Nargis Naureen v. Judge
Family Court,
Multan and others PLD 2018 Lah. 735; Tasadaq Nawaz v. Masood
Iqbal
Usmani and others PLD 2018 Lah. 830; Rahim Bakhsh v. Mst.Shahzadi
and
others 2018 CLC 1789 and Memoona Ilyas v. Additional District
Judge and others
2017 CLC 1747 ref.
(b) Family Courts Act (XXXV of 1964)---
----Ss. 14 & 17A---Interim
order---Appeal---Scope---Application for fixing
interim maintenance allowance of
minor under S.17-A of the Family
Courts Act, 1964, dismissal of---Where
dismissal of such application
was tantamount to declining the relief of interim
maintenance
allowance permissible to the minor during the pendency of suit, it
amounted to final determination of claim to that extent and hence
could not be
treated merely as an interim/interlocutory order that did
not finally determine
anything---Such dismissal would amount to 'a
decision given' in terms of S.14
of the Family Courts Act, 1964---
Consequently an appeal against the same would
be available before
the Appellate Court in case the minor was aggrieved of the
same on
any available ground.
Muhammad Amin Ashraf Khan for Petitioner.
Ms. Zarish Fatima, Assistant Attorney
General On Court's call.
Muhammad Arshad Manzoor, AAG. On Court's
call.
Nasrullah Khan Babar, Ch. Muhammad Naseer
and Ms. Uzma
Razzaq Khan, Amicii curiae.
ORDER
MUZAMIL AKHTAR SHABIR, J.---Through this constitutional
petition, the
petitioner has called in question the orders dated
28.11.2017 and 13.10.2018
passed by learned Judge Family Court, Kasur
whereby the said court dismissed
the application filed by the
petitioner for fixing interim maintenance
allowance of minor Rizwan.
2. Brief facts of the case are that petitioner
No.1, Nusrat Bibi
("petitioner") filed a suit for recovery of
maintenance allowance for
herself and her son Rizwan minor/petitioner No.2
("minor") along with
delivery expenses and dowry articles. The said
suit was contested by
respondent No.1 ("respondent") who denied the
paternity of the minor.
Vide order dated 28.11.2017, the Judge Family Court,
Kasur did not fix
the interim maintenance allowance of the minor and adjourned
the
matter for pre-trial reconciliation. Subsequently, the petitioner filed an
application on 01.10.2018 requesting the court to fix interim
maintenance
allowance of the minor which was contested by the
respondent and the trial
court dismissed the same vide order dated
13.10.2018. Both the said orders are
under challenge through instant
constitutional petition.
3. Learned counsel for the petitioner has
argued that the minor is
legitimate son of petitioner, therefore, the
respondent is obliged to
make payment of interim maintenance allowance to the
minor and the
orders passed by the trial court dismissing the said application
are
non-speaking and liable to be set-aside.
4. Conversely, learned Law Officers as well as
amicii curiae
appointed by this Court have argued that although appeal is not
maintainable against an interim/interlocutory order, if the said order
finally
determines an issue or dispute, the same cannot be treated as
merely an
interlocutory order as the same would amount to a
"decision given" in
terms of Section 14 of the Family Courts Act, 1964
("Act") against
which an appeal would be maintainable.
5. Heard. Record perused.
 6. Learned counsel for the petitioner when
confronted with the
question of maintainability of this constitutional
petition, has argued
that the afore-referred orders are interlocutory in nature
and appeal
against the same is barred under Subsection (3) of Section 14 of the
Act, therefore, the petitioner has approached this Court in its
constitutional
jurisdiction to protect the rights of the minor.
7. The question that arises for determination
is whether the
impugned orders are of the nature of interlocutory orders or
amount
to "a decision given" in terms of Section 14 of the Act making
the same,
amenable to the jurisdiction of appellate court by way of filing an
appeal. To resolve the controversy, it would be appropriate to
reproduce
relevant portions of the orders dated 28.11.2017 and
13.10.2018:
"28.11.2017:
Written
statement along with fard pata, Schedule of witnesses and
list under Order 7
Rule 14 C.P.C. has been filed on behalf of the
defendant. Perusal of written
statement shows that the
defendant challenged the dependent of the minors
therefore the
interim maintenance allowance of the minors has not been fixed
at
the present stage and case is adjourned for pretrial
reconciliation proceedings
for 13.12.2017."
"13.10.2018:
6.
The plaintiff' No.1 has also filed another application for fixation
of interim
maintenance of minor plaintiff No.2. Confronting
with the record it reveals
that Mst. Maria Shehzadi, learned
predecessor of this Court, vide order dated
28.11.2017 has not
fixed the interim maintenance of minor which order is still
intact. The aggrieved party may assail this order under the law,
if
recommended. This application is dismissed.
8. Vide order dated 13.10.2018, the application
filed by the petitioner
for fixing interim maintenance allowance of the minor
has been
dismissed by making reference to the earlier order dated 28.11.2017.
Perusal of order dated 28.11.2017 shows that through said order the
court had
not decided anything and without fixing the interim
maintenance allowance of
the minor at the said stage had adjourned
the matter for pretrial
reconciliation proceedings, the effect of which
was that the said matter had
been kept pending for decision in
subsequent proceedings. The earlier order
dated 28.11.2017 merged
into the subsequent order dated 13.10.2018, whereby the
application of
the petitioner seeking fixation of interim maintenance allowance
during pendency of the suit has been finally decided by dismissing the
same and
nothing remains pending relating the said issue. The right of
a wife and minor
to seek interim maintenance allowance from
husband/father is provided under
Section 17-A of the Act and the
Family Court by mandate of the said section is
obliged to pass an order
fixing the same, if the parties are otherwise found
entitled to the same
in the given circumstances of the case. The non-compliance
of such an
order has penal consequences, therefore, the court is required to
apply
judicious mind in passing such an order and in appropriate cases can
refuse to fix interim maintenance allowance if the situation so
requires. The
said section is reproduced below:
"17A.
Suit for maintenance.---(1) In a suit for maintenance, the
Family Court shall,
on the date of the first appearance of the
defendant, fix interim monthly
maintenance for wife or a child
and if the defendant fails to pay the
maintenance by fourteenth
day of each month, the defence of the defendant shall
stand
struck off and the Family Court shall decree the suit for
maintenance on
the basis of averments in the plaint and other
supporting documents on record
of the case.
(2)
In a decree for maintenance, the Family Court may:
(a)
fix an amount of maintenance higher than the amount prayed
for in the plaint
due to afflux of time or any other relevant
circumstances, and
(b)
prescribe the annual increase in the maintenance.
(3)
If the Family Court does not prescribe the annual increase in the
maintenance,
the maintenance fixed by the Court shall
automatically stand increased at the
rate of ten percent each
year.
(4)
For purposes of fixing the maintenance, the Family Court may
summon the
relevant documentary evidence from any
organization, body or authority to
determine the estate and
resources of the defendant."
The trial court has, while dismissing the
application for interim
maintenance allowance, declined the claim of the minor
for
entitlement to receive interim maintenance allowance during the
pendency of
suit permissible under Section 17-A of the Act. To
determine whether the said
order is appealable, Section 14 of the Act
which relates to appeals is
reproduced below:-
14.
Appeals.- (1) Notwithstanding anything provided in any other
law for the time
being in force, a decision given or a decree
passed by a Family Court shall be
appealable-
 (a)
to the High Court, where the Family Court is presided over by a
District Judge,
an Additional District Judge or a person notified
by Government to be of the
rank and status of a District Judge or
an Additional District Judge; and
(b)
to the District Court, in any other case.
(2).....
(3)
No appeal or revision shall lie against an interim order passed by
a Family
Court."
9. From the perusal of Section 14 it is
observed that a decision given
by the family court is appealable provided the
said decision is not an
interim order as provided in Subsection (3) of Section
14 ibid. Every
order passed during the pendency of a family suit cannot be
treated
merely as an interlocutory order if the said order finally determines
an issue. Reliance in this regard may be placed on the judgment
reported as
MUHAMMAD ZAFFAR KHAN v. Mst. SHEHNAZ BIBI and 2
others (1996 CLC 94), the
relevant portion is reproduced below:-
"Regarding
the first question, I am of the opinion that every order
passed by a Family
Court during the pendency of a suit cannot
be treated interlocutory, unless the
nature of such order reflects
so. To test whether an order passed on any
application by a
Family Court be treated interlocutory or not the Appellate
Court
must find out what possible orders could be passed by the Judge
Family
Court on such applications. If the nature of an order
appears to be final then
it may not be treated interlocutory.
..
In
the light of above discussion, I am of the view that if an order of
dismissal
or allowance passed on an application in respect of
any issue has finally
decided the said issue, then such an order
possesses the characteristic of
finality notwithstanding to the
pendency or final disposal of the case on the
basis of that order
and an appeal against such an order would be maintainable.
If
no final order regarding an issue has been passed on an
application and the
point raised by any party has been deferred
for the time being, then such
order, can be termed as
"interlocutory".
It
may not be out of place to mention that the words "Interlocutory"
in
its dictionary meaning means "not final or definitive",
pronounced
during the course of a suit pending final decision as
"an interlocutory
divorce decree." (Websters' New Universal
Unabridged Dictionary).
Therefore, an order passed on an
application cannot be treated interlocutory if
the Court has
 given a final or definitive decision on an issue relating to the
maintainability of a suit or the jurisdiction of the Court."
10. In case reported as Imtiaz Ahmad Khan v. Mst.
Aqsa Manzoor
and others (PLD 2013 Lahore 241), the question for determination
before the Court was maintainability of an Intra Court Appeal under
Section 3
of Law Reforms Ordinance, 1972 arising out of suit for
maintenance and return
of dowry articles on the ground that whether
dismissal of application under
Section 11 C.P.C. would amount to an
appealable decision in terms of Section 14
of the Act or not. The
Division Bench declared the dismissal of said
application as 'a decision
given' by observing as under:
"The
basic question to be resolved is, whether the order dated
12.11.2009 dismissing
the petitioner's application seeking the
dismissal of respondent's suit is a
decision given or an
interlocutory order, the two terms used in section 14 of
the West
Pakistan Family Courts Act, 1964.
The
order dated 12.11.2009 impugned in the writ petition was
passed on the
application made by the applicant. The question
whether the court could try the
subsequent suit when the earlier
one had already dismissed for want of evidence
was finally
decided vide the above referred order. No further order was to
be
passed on the said application. The order passed falls within
the term of
"a decision given". Reliance is placed on Rao
Muhammad Owais Qarani
v. Mst. Tauheed Aisha and others 1991
MLD 1097. In view of the ratio of the
referred judgment the
order assailed in writ petition finally decides the
application
made by the appellant cannot be termed to be an interlocutory
order. It is a decision given and is appealable. The instant Intra
Court Appeal
arising out of the proceedings whereby the law
provides a remedy by way of an
appeal or revision is not
competent. This appeal is dismissed."
In Rao Muhammad Owais Qarni's case (Supra), the
question before the
Court for determination was whether the order of the trial
court in
allowing the application filed by a party to recall the witnesses of
other party for the purposes of cross-examination would amount to 'a
decision
given' or not and whether it is appealable. The Court observed
as under:
"With
regard to the question as to whether or not the impugned
order of the learned
Court was appealable, it seems that in view
of the several decisions referred
to by the parties it is almost
settled that the word 'decision' used in section
14 of the Act does
not include every interlocutory order of the Family Court,
but
 covers only such orders as are passed under some provision of
the Act and
this, it appears, would imply the final or temporary
determination of a matter
forming part of some issue involved
in the case. Applying this test, the order
dated 6.8.1990 passed by
the trial Court would, in my view, not be 'decision'
for purposes
of section 14 of the Act and therefore, not appealable."
In Mst. Naureen v. Ehsan Sabir, Family Judge
Faisalabad and 2 others
(2010 CLR 110), the petitioner wife had challenged the
decision of the
appellate court whereby her appeal had been dismissed as not
maintainable in view of Section 14 of the Act. The matter under
consideration
before the Court was that whether appeal would be
maintainable against an order
of the Judge Family Court allowing the
husband to resile from his previous
offer to decide the case on the
basis of oath to be taken by the wife when the
offer had been accepted
and she was willing to take the oath. This Court
observed as under:
"The
word "decision" not only covers the final judgment but also
interlocutory order, therefore, in such situation, the appeal
would be
maintainable while having a look of a different
meaning and definition is broad
enough to cover both final
judgments and interlocutory orders and although, it
is some
times limited to the sense of judgment and sometimes
understood as
meaning simply the first step leading to a
judgment. Lastly, the word
"decision" may include various
rulings as well as orders.
In
this case, the offer was made by the respondent to decide the lis
on oath but
subsequently backed out without any reason. Had
the offer made by the
respondent been materialized, the case
would have been decided either way,
therefore, it can safely be
held that the act of the respondent is leading to a
final judgment,
therefore, in any case, it was a decision and the appeal was
competent."
11. In the case reported as Nargis Naureen v.
Judee Family Court,
Multan and others (PLD 2018 Lahore 735) the question for
determination before the Court was whether dismissal of an
application for
seeking interim relief by the Family Court would be an
appealable order, the
Court observed that dismissal of application
filed under Section 21-A of the
Act is tantamount to decline the relief
of preservation and protection of
property that may be available to a
party (if it was otherwise entitled to the
same) during the pendency of
suit, which amounts to a final determination of a
claim to that extent
and hence cannot be treated as merely an interlocutory
order that
does not finally determine anything, thus said order would amount to
a decision given in terms of Section 14 of the Act. Consequently, an
appeal
against the same would be available before the appellate court.
Similar principle
has been laid down in the judgments reported as
Tasadaq Nawaz v. Masood Iqbal
Usmani and others (PLD 2018 Lahore
830), Rahim Bakhsh v. Mst. Shahzadi and
others (2018 CLC 1789) and
Memoona Ilyas v. Additional District Judge and
others (2017 CLC 1747).
12. There is another aspect of the matter that
where an application
for interim maintenance allowance filed by or on behalf of
the minor
is dismissed on merits, the minor whose lifeline depends upon the
maintenance allowance provided by his father and is aggrieved of the
said order
on the basis of any available ground cannot be kept in
waiting for an
indefinite period for determination of his right to
receive maintenance
allowance and that too for entire period
consumed for decision of the main
case. Although this Court has got
jurisdiction to entertain the said dispute in
its constitutional
jurisdiction regardless of availability of alternate remedy
of appeal,
this Court ordinarily does not exercise such jurisdiction on the
ground
that the said aspect of the matter may require determination of some
disputed facts and the appellate court being empowered to do so
should be
approached in the first instance so that the remedy before
an available forum
may not be lost.
13. Keeping in view the afore-referred verdicts,
the position of law
that emerges is that appeal under Section 14 of the Act is
not barred
against every interlocutory order and remedy of appeal, unless
specifically barred, would be available against a decision relating to a
right
or a remedy provided under the law subject to the condition that
finality is
attached to such an order or decision and nothing remains
to be further decided
between the parties on the said issue. In view of
the above, without commenting
upon the merits of the case lest the
decision of the courts below be affected
by the same, it is observed
that dismissal of application filed by the
petitioner for fixing interim
maintenance allowance of the minor under Section
17-A of the Act is
tantamount to decline the relief of interim maintenance
allowance
permissible to the minor during the pendency of suit, which amounts
to final determination of claim to that extent and hence cannot be
treated
merely as an interim/interlocutory order that does not finally
determine
anything. Thus said order would amount to 'a decision
given' in terms of
Section 14 of the Act. Consequently an appeal against
the same would be
available before the appellate court in case the
minor is aggrieved of the same
on any available ground. Hence, this
constitutional petition is not
maintainable due to availability of
alternate remedy and the same is dismissed
as such. The petitioner
may, if advised, seek remedy by way of filing an appeal
before the
appellate court. However, before parting with this decision, it is
observed
that in case an appeal is filed by the petitioner, the appellate
court, while
deciding the same on its own merits, shall take into
consideration the fact
that the petitioner had invoked the
constitutional jurisdiction of this Court
to seek relief under the
impression that appeal was barred under Section 14(3)
of the Act.
MWA/N-5/L Petition
dismissed.
;