The Lahore High Court ruled that Family Courts lack jurisdiction to adjudicate civil disputes outside the scope of family matters, emphasizing the importance of upholding legal authority and directing the transfer of civil cases to competent Civil Judges.
Title: Understanding the Implications of Lahore High Court's Judgment on Jurisdiction of Family Courts
In a recent ruling, the Lahore High Court, Judicial Department, addressed the crucial issue of jurisdiction concerning Family Courts in the Pakistani legal system. The judgment, handed down in Civil Revision No.54194 of 2023, sheds light on the interpretation of statutes governing the jurisdiction of Family Courts and the extent of their authority in adjudicating civil disputes.
The case stemmed from a dispute over the jurisdiction of the Family Court to hear civil matters outside the scope of family disputes. The petitioners challenged an order issued by the District Judge, Pakpattan, which denied their application to withdraw civil cases from the Senior Civil Judge (Family Division) and transfer them to the Court of Civil Judge or Senior Civil Judge (Civil Division). The petitioners argued that the Family Courts Act, 1964, limited the jurisdiction of Family Courts to family disputes, and therefore, civil matters should not fall under their purview.
Conversely, the respondents contended that the Punjab Civil Courts Ordinance, 1962, empowered the District Judge to entrust civil cases to any court, including those designated as Family Courts. They argued that there was no legal impediment preventing a Civil Judge presiding over a Family Court from adjudicating civil disputes.
The judgment extensively analyzed the relevant legal framework, including constitutional provisions, statutes, and case law, to determine the scope of jurisdiction of Family Courts. It emphasized the principle that jurisdiction of courts is conferred by law and cannot be assumed without proper authority.
The Court highlighted Article 4 of the Constitution of the Islamic Republic of Pakistan, which guarantees individuals the right to be treated in accordance with the law and prohibits any act without lawful authority. It also referred to Article 175(2), which mandates that courts can only exercise jurisdiction conferred upon them by the Constitution or by law.
Furthermore, the judgment delved into the provisions of the Family Courts Act, 1964, which establish Family Courts as specialized forums for adjudicating family disputes. It emphasized that Family Courts have exclusive jurisdiction over matters specified in Part-I of the Schedule to the Act, which primarily relate to family and matrimonial issues.
The Court also examined the Punjab Civil Courts Ordinance, 1962, particularly sections 12(2) and 15, which deal with the powers of the District Judge to withdraw proceedings and distribute business among subordinate courts. It clarified that these provisions do not grant authority to entrust civil disputes to Family Courts beyond their prescribed jurisdiction.
Ultimately, the judgment concluded that Family Courts lack jurisdiction to adjudicate civil disputes outside the scope of family matters specified in the Family Courts Act. It emphasized the importance of upholding the rule of law and ensuring that courts operate within their designated jurisdictions.
In light of the ruling, the impugned order was set aside, and the District Judge was directed to transfer the civil cases to a competent Civil Judge. The judgment serves as a significant precedent clarifying the boundaries of Family Court jurisdiction and reaffirming the principle of legal authority in the Pakistani judicial system.
عنوان: فیملی کورٹس کے دائرہ اختیار پر لاہور ہائی کورٹ کے فیصلے کے مضمرات کو سمجھنا
ایک حالیہ فیصلے میں، لاہور ہائی کورٹ، جوڈیشل ڈیپارٹمنٹ نے پاکستانی قانونی نظام میں فیملی کورٹس سے متعلق دائرہ اختیار کے اہم مسئلے کو حل کیا۔ 2023 کے سول نظرثانی نمبر 54194 میں دیا گیا فیصلہ، فیملی کورٹس کے دائرہ اختیار پر حکمرانی کرنے والے قوانین کی تشریح اور دیوانی تنازعات کا فیصلہ کرنے میں ان کے اختیار کی حد پر روشنی ڈالتا ہے۔
یہ مقدمہ خاندانی تنازعات کے دائرہ سے باہر دیوانی معاملات کی سماعت کے لیے فیملی کورٹ کے دائرہ اختیار پر تنازعہ سے شروع ہوا۔ درخواست گزاروں نے ڈسٹرکٹ جج، پاکپتن کے جاری کردہ حکم کو چیلنج کیا، جس نے ان کی درخواست کو مسترد کر دیا کہ وہ سینئر سول جج (فیملی ڈویژن) سے دیوانی مقدمات واپس لے کر انہیں سول جج یا سینئر سول جج (سول ڈویژن) کی عدالت میں منتقل کر دیں۔ درخواست گزاروں نے دلیل دی کہ فیملی کورٹس ایکٹ 1964 نے فیملی کورٹس کے دائرہ اختیار کو خاندانی تنازعات تک محدود کر دیا ہے اس لیے دیوانی معاملات ان کے دائرہ کار میں نہیں آنے چاہئیں۔
اس کے برعکس، جواب دہندگان نے استدلال کیا کہ پنجاب سول کورٹس آرڈیننس، 1962 نے ڈسٹرکٹ جج کو دیوانی مقدمات کسی بھی عدالت کے سپرد کرنے کا اختیار دیا، بشمول فیملی کورٹس کے طور پر نامزد کردہ۔ انہوں نے دلیل دی کہ فیملی کورٹ کی صدارت کرنے والے سول جج کو سول تنازعات کا فیصلہ کرنے سے روکنے میں کوئی قانونی رکاوٹ نہیں ہے۔
فیصلے میں فیملی کورٹس کے دائرہ اختیار کے دائرہ کار کا تعین کرنے کے لیے آئینی دفعات، قوانین اور کیس کے قانون سمیت متعلقہ قانونی فریم ورک کا وسیع پیمانے پر تجزیہ کیا گیا۔ اس نے اس اصول پر زور دیا کہ عدالتوں کا دائرہ اختیار قانون کے ذریعے دیا جاتا ہے اور اسے مناسب اختیار کے بغیر فرض نہیں کیا جا سکتا۔
عدالت نے اسلامی جمہوریہ پاکستان کے آئین کے آرٹیکل 4 پر روشنی ڈالی، جو افراد کے ساتھ قانون کے مطابق سلوک کرنے کے حق کی ضمانت دیتا ہے اور قانونی اختیار کے بغیر کسی بھی عمل کی ممانعت کرتا ہے۔ اس نے آرٹیکل 175(2) کا بھی حوالہ دیا، جس میں یہ حکم دیا گیا ہے کہ عدالتیں صرف وہی دائرہ اختیار استعمال کر سکتی ہیں جو انہیں آئین یا قانون کے ذریعے دیا گیا ہے۔
مزید برآں، فیصلے میں فیملی کورٹس ایکٹ، 1964 کی دفعات شامل ہیں، جو فیملی کورٹس کو خاندانی تنازعات کے فیصلے کے لیے خصوصی فورمز کے طور پر قائم کرتی ہیں۔ اس نے اس بات پر زور دیا کہ فیملی کورٹس کو ایکٹ کے شیڈول کے حصہ-1 میں بیان کردہ معاملات پر خصوصی دائرہ اختیار حاصل ہے، جو بنیادی طور پر خاندانی اور ازدواجی مسائل سے متعلق ہیں۔
عدالت نے پنجاب سول کورٹس آرڈیننس، 1962، خاص طور پر سیکشن 12(2) اور 15 کا بھی جائزہ لیا، جو ڈسٹرکٹ جج کو کارروائی واپس لینے اور ماتحت عدالتوں میں کاروبار کی تقسیم کے اختیارات سے متعلق ہیں۔ اس نے واضح کیا کہ یہ دفعات دیوانی تنازعات کو فیملی کورٹس کو ان کے مقررہ دائرہ اختیار سے باہر سونپنے کا اختیار نہیں دیتیں۔
بالآخر، فیصلے نے یہ نتیجہ اخذ کیا کہ فیملی کورٹس ایکٹ میں بیان کردہ خاندانی معاملات کے دائرہ کار سے باہر دیوانی تنازعات کا فیصلہ کرنے کے دائرہ اختیار کی کمی ہے۔ اس نے قانون کی حکمرانی کو برقرار رکھنے اور اس بات کو یقینی بنانے کی اہمیت پر زور دیا کہ عدالتیں اپنے مقرر کردہ دائرہ اختیار میں کام کریں۔
فیصلے کی روشنی میں، غیر قانونی حکم کو ایک طرف رکھ دیا گیا، اور ڈسٹرکٹ جج کو ہدایت کی گئی کہ وہ دیوانی مقدمات کو قابل سول جج کو منتقل کریں۔ یہ فیصلہ فیملی کورٹ کے دائرہ اختیار کی حدود کو واضح کرنے اور پاکستانی عدالتی نظام میں قانونی اختیار کے اصول کی توثیق کرنے والی ایک اہم مثال کے طور پر کام کرتا ہے۔
The judgment in Civil Revision No.54194 of 2023 revolves around the petitioners' challenge of an order passed by the District Judge, Pakpattan, regarding the withdrawal and transfer of civil cases from the Court of Senior Civil Judge (Family Division) to the Court of Civil Judge or Senior Civil Judge (Civil Division). The petitioners argued that civil matters should not be under the jurisdiction of the Family Court, citing the Family Courts Act, 1964. Conversely, respondents argued that the Punjab Civil Courts Ordinance, 1962 empowers the District Judge to entrust civil cases to any court, including the Judge Family Court. The judgment extensively examines the legal framework, including constitutional provisions, to conclude that the Family Court's jurisdiction is limited to matters specified in Part-I of the Schedule to the Act. The judge finds no provision allowing the Family Court to adjudicate civil disputes beyond this scope. Therefore, the civil revision is allowed, setting aside the impugned order and directing the transfer of cases to a competent Civil Judge.
Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Civil Revision No.54194 of 2023
Aun Akhter & another
Versus
Ahmad Abdul Rehman, etc.
J U D G M E N T
Date of Hearing
26.09.2023
For the petitioners
Mian Muhammad Hussain Chotya, Advocate
For respondent No.1 M/s Rafique Ahmad Bhatti and Shafe Munir,
Advocates
For respondents
No.3 & 4
Mr. Nadeem-Ud-Din Malik, Advocate
Amicus Curiae
Ms. Shaffaf Shahid Latif, Advocate
Raheel Kamran J:- In this civil revision, the
petitioners have assailed the order dated 17.07.2023 passed by the
District Judge, Pakpattan whereby application moved by them for
withdrawal of cases of civil nature mentioned therein from the Court of
Senior Civil Judge (Family Division), Pakpattan and transfer to the
Court of Civil Judge or Senior Civil Judge (Civil Division), Pakpattan
was dismissed.
2. Learned counsel for the petitioners contends that civil matters
have been entrusted to the Judge Family Court without any lawful
justification. He maintains that according to section 5 of the Family
Courts Act, 1964 (‘the Act’) and Part-I of the Schedule to the Act, a
Judge Family Court is possessed of jurisdiction only to adjudicate
upon family disputes and unless such power is conferred upon it by
law, it cannot adjudicate upon other disputes of civil nature.
3.
Conversely, learned counsel for respondents No.3 & 4 contends
that sections 12(2) and 15 of the Punjab Civil Courts Ordinance, 1962
C. R .No.54194 of 2023
empower the District Judge to entrust a civil case to any Court or
himself decide it as the District Judge, which imposes no embargo
whatsoever on entrusting a case to a Civil Judge performing duties as
Judge Family Court. In support of his contention, he has placed
reliance on the case of Mian Umar Ikram-Ul-Haque vs. Dr. Shahida
Hasnain and another (2016 SCMR 2186).
4.
Learned amicus curiae contends that the Family Courts Act,
1964 does not expressly or by necessary implication restrict a Civil
Judge designated as the Judge Family Court from exercising its general
jurisdiction in civil proceedings. She maintains that it is an
incontrovertible principle of law that Family Courts are Civil Courts.
Reliance in this regard is placed on the case of Mirza Daud Baig vs.
Additional District Judge, Gujranwala and others (1987 SCMR
1161). According to her, exclusivity of jurisdiction under section 5 of
the Act is only applicable where a Family Court is entertaining a suit
under the Act and it is not relevant where a Civil Judge, who has been
designated as a Judge Family Court, is hearing a civil suit in his or her
general jurisdiction, therefore, misdescription of designation does not
have any effect on the legality of the trial, which falls within the
maxim falsa demonstratio non nocat. In support of her contention, she
has placed reliance on the cases of Piao Gul vs. The State (PLD 1960
Supreme Court (Pak.) 307), Mst. Razia Begum vs. Mst. Sardar
Begum and others (PLD 1978 Lahore 696) Allah Jiwaya vs. Judge
Family Court, Ahmadpur Sharquia and another (1990 MLD 239).
She further contends that the provisions of the Act must be read
literally by giving the words used therein ordinary, natural and
grammatical meaning. The addition and subtraction of a word in a
statute is not justified except where for the interpretation thereof, the
principle of reading in or reading down may be pressed into service,
therefore, since not a single provision of the Act or the rules framed
thereunder provides that a Civil Judge presiding over a Family Court is
precluded from entertaining civil suits under its plenary and general
jurisdiction, therefore, such a restriction cannot be read into the Act as
C. R .No.54194 of 2023
per settled principles of statutory interpretation. Reliance in this regard
has been placed on the case of Syed Mukhtar Hussain Shah vs. Mst.
Saba Imtiaz and others (PLD 2011 Supreme Court 260).
5.
In rebuttal, learned counsel for the petitioners contends that the
judgments relied upon by learned counsel for respondents No.3 & 4 as
also the learned amicus curiae are distinguishable on facts inasmuch as
there existed a definite nexus between proceedings before the Family
Court or as the case may be the Rent Tribunal and the suit which was
transferred to the same whereas no such nexus has been established in
the instant case. He maintains that the instant case involves transfer of
suits for partition, specific performance of the contract and declaration
in relation to the suit property. He further contends that there exists a
distinction between transfer and entrustment of cases under section 24
of the Code of Civil Procedure, 1908 and delegation of powers to
Judge Family Court under the provisions of sections 12(2) & 15 of the
Punjab Civil Courts Ordinance, 1962. He adds that a Judge presiding
over a Family Court ceases to be a Civil Court for the purpose of Code
of Civil Procedure, 1908. In this regard reliance has been placed on
the case of Mst. Mahpara vs. S. Arshad Mahmood and another (1999
CLC Lahore 514). He lastly contends that there are eight seats of 2nd
Class and six of 1st Class Civil Judges in the concerned District and
none of those was vacant at the relevant time, therefore, the impugned
order has been passed on extraneous consideration.
6.
Heard. Record perused.
7.
It is noteworthy that in the scheme of the Constitution of
Islamic Republic of Pakistan, 1973 (‘the Constitution’) the right of an
individual to enjoy the protection of law and to be treated in
accordance with the law has been provided. Article 4, inter alia,
ordains that no person shall be prevented from or be hindered in doing
that which is not prohibited by law; and no person shall be compelled
to do that which the law does not require him to do. While a person is
constitutionally guaranteed above freedom, there is no inherent power
vested in the state organs or authorities to act save for the authority
C. R .No.54194 of 2023
conferred by the Constitution and the law and any act done by the state
functionaries, order passed or direction issued, if not sanctioned by the
Constitution or the law, is an act without lawful authority1
. Besides the
above general position, there is a specific provision of Article 175(2) in
the Constitution that embodies fundamental principle governing
jurisdiction of the courts which mandates that no court shall have any
jurisdiction save as is or may be conferred on it by the Constitution or
by or under any law. There is thus no constitutional or legal
presumption that in the absence of any restriction placed by law on
him/her, a Judge Family Court has jurisdiction to adjudicate upon
disputes of other civil nature rather the presumption is the other way
round and for a Judge Family Court to exercise such authority,
jurisdiction must be conferred on him or her by the law.
8.
The Act has been promulgated to establish a quasi-judicial
forum i.e. the Family Court, which can draw and follow its own
procedure provided such procedure should not be against the principles
of fair hearing and trial. The object of the Act is to minimize the
technicalities and procedural holdups for the purpose of speedy justice
between the parties in shortest possible time and manner. The Act has
changed the forum and also altered the method as to how the trial
under the Act is to be proceeded and case decided. A bare reading of
the Act clearly suggests that by willful exclusion of procedure as
prescribed under the Code, much has been left at the discretion of the
Family Court to conduct trial in the manner as provided under the Act
and also to adopt all possible measures and take all such steps, which
result in achieving the purpose and object of the Act.
Section 3 of the Act provides for the establishment of one or
more of Family Courts by the Government in each District in
consultation with the High Court consisting of District Judge,
Additional District Judge, Civil Judge. Section 12A of the Act
provides a period of six months for disposal of the case from the date
1
Pakistan Muslim League (N) v. Federation of Pakistan through Secretary Ministry of Interior and
others (PLD 2007 SC 642)
C. R .No.54194 of 2023
of its institution. Through section 17 of the Act, provisions of the Code
of Civil Procedure, 1908 (except for sections10 & 11) and Qanun-eShahadat, 1984 have been made inapplicable and the purpose of
enacting such section was in fact to give effect to the preamble of the
Act, which provides that it is meant for expeditious settlement and
disposal of disputes2
. The nature of disputes which can be brought
before the Family Court for adjudication have been set forth and
enumerated in Part-I of the Schedule referred to in section 5 of the Act.
In order to appreciate scope of jurisdiction of the Family Courts, it is
imperative to have a glance at section 5 of the Act and Part-I of the
Schedule, which are reproduced hereunder: -
“5.Jurisdiction. (1) Subject to provisions of the Muslim Family
Laws Ordinance, 1961, and the Conciliation Courts Ordinance,
1961, the Family Courts shall have exclusive jurisdiction to
entertain, hear and adjudicate upon matters specified in (Part I of
the Schedule)”
“Schedule (Part I)
1. Dissolution of marriage (including Khula).
2. Dower.
3. Maintenance.
4. Restitution of conjugal rights.
5. Custody children (and the visitation rights of parents to meet
them.)
6. Guardianship.
7. Jactitation of marriage.
8. Dowry.
9. Personal Property and belongings of a wife.
10.
Any other matter arising out of the Nikahnama”
9.
It is abundantly clear from section 5 of the Act that it confers
exclusive jurisdiction upon the Family Court to entertain, hear and
adjudicate upon matters specified in Part-I of the Schedule. On
account of exclusive jurisdiction of the Family Courts over family
disputes, Civil Courts, which are the courts of inherent and plenary
jurisdiction competent to adjudicate upon all disputes of civil nature
except the suits of which their cognizance is barred either expressly or
2
Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others (2011 SCMR 1361);
Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others (2014 SCMR
1365); Haji Muhammad Nawaz v. Samina Kanwal and others (2017 SCMR 321); Muhammad
Asim and others v. Mst. Samro Begum and others (PLD 2018 Supreme Court 819) and
Muhammad Arshad Anjum v. Mst. Khurshid Begum and others (2021 SCMR 1145)
C. R .No.54194 of 2023
by necessary implication, have no authority to adjudicate upon such
disputes.
10.
Whether a Civil Judge who is presiding over the Family Court
has authority to adjudicate upon any other dispute of other civil nature
which falls outside the purview of the Act? is the question involved
here. Reliance has been placed on the provisions of sections 12(2) and
15 of the Civil Courts Ordinance, 1962 (‘the Ordinance’) to support the
impugned order.
11.
Undoubtedly, Family Courts fall within one of the classes of
Civil Courts recognized under section 3 of the Ordinance for having
been established under the Act, which is in force for the time being.
The other classes of courts include the Court of District Judge, Court
of Additional District Judge and the Court of the Civil Judge3
. Section
7 of the Ordinance confers unlimited pecuniary jurisdiction of the
District Judges in original civil suits, except as otherwise provided in
any enactment for the time being in force, whereas section 9 of the
Ordinance empowers the High Court to determine and classify
pecuniary jurisdiction of civil judges in original civil suits. Likewise,
provisions of sections 5, 6 and 10 of the Ordinance, inter alia, govern
territorial jurisdiction of District Judges, Additional District Judges and
Civil Judges.
12.
Since counsels have heavily relied on the provisions of sections
12(2) & 15 of the Ordinance, it would be advantageous to reproduce
the same for clarity: -
“12. Exercise by Civil Judges of Jurisdiction of District Courts
in certain proceedings.– (1) Notwithstanding anything contained in
the Succession Act, 1925, the High Court may, by general or
special order, authorise any Civil Judge to take cognizance of or
any District Judge to transfer to a Civil Judge under his control,
any proceedings or class of proceedings under the said Act.
(2) The District Judge may withdraw any such proceedings
taken cognizance of by or transferred to a Civil Judge, and may
either himself dispose of them or transfer them to a Court under his
control competent to dispose of them:
3
Section 3 of the Ordinance
C. R .No.54194 of 2023
Provided that nothing herein contained shall empower a
District Judge to withdraw such proceedings as have been
specifically transferred from his Court by the High Court.
(3) …..”
“15. Power to distribute business.– Notwithstanding anything
contained in the Code of Civil Procedure, 1908, every District
Judge may by written order direct that any civil business cognizable
by his Court and the Courts under his control shall be distributed
among such Courts in such manner as he thinks fit:
Provided that no direction issued under this section shall
empower any Court to exercise any powers or deal with any
business beyond the limits of its jurisdiction.”
Section 12(2) of the Ordinance empowers a District Judge to withdraw
any proceedings taken cognizance of by or transferred to a Civil Judge
to either himself dispose of the same or transfer to a Court under his
control competent to dispose it of, with the exception that no power of
withdrawal is available to the District Judge in relation to such
proceedings as have been transferred from his Court by the High
Court. It is thus apparent that the power of the District Judge under
section 12(2) ibid is limited in its scope to transfer proceedings only to
such a Court as would be competent to dispose it of. Section 15 of the
Ordinance empowers the District Judge to distribute civil business
cognizable by his Court and the Courts under his control by written
order, in such manner as he thinks fit, however, it may be emphasized
that proviso to the said section mandates that no direction issued under
that section could empower any Court to exercise any powers or deal
with any business beyond the limits of its jurisdiction.
It is thus abundantly clear that be it the power of withdrawal
and transfer under section 12 of the Ordinance or the power to
distribute business under section 15 of the Ordinance, no authority is
vested in the District Judge to entrust any matter to and empower a
Civil Judge to adjudicate upon any civil claim beyond the limits of its
jurisdiction, in particular over the subject matters covered by special
enactments.
13.
There is thus no provision in the Punjab Civil Courts
Ordinance, 1962 or the Family Courts Act, 1964 or the rules made
C. R .No.54194 of 2023
thereunder which confers authority upon the Family Courts to
adjudicate upon civil disputes other than those specified in Part-I of the
Schedule to the Act. See section 14 of the Ordinance.
14.
Article 203 of the Constitution envisages that each High Court
shall supervise and control all courts subordinate to it with the object to
establish orderly, honorable, upright, impartial and legally correct
administration of justice. The supervision and control over the
subordinate judiciary vested in the High Courts under Article 203 of
the Constitution is exclusive in nature, comprehensive in extent and
effective in operation4
. Moreover, section 14 of the Ordinance
stipulates that Civil Courts in the area to which the Ordinance extends
shall be subordinate to the High Court, and, subject to the general
superintendence and control of the High Court, the District Judge shall
have control over all Civil Courts within the local limits of his
jurisdiction. The above provisions, however, do not take away or
restrict authority of this Court to empower Judges of the Family Court
to additionally exercise powers of the Civil Courts if so notified. But
in the instant case, learned counsel for respondents No.3 & 4 has not
been able to refer to any such power conferred upon the Judge Family
Court.
15.
Without prejudice to the foregoing, assuming for the sake of
argument that a discretion is available with the District Judge to
transfer any civil suit to the Family Court even though subject matter
thereof does not fall within the scope of the Act, would it be proper
exercise to allow such a transfer? The answer may well be in negative.
The Family Court cannot ordinarily hear the civil suits for such Courts
have been established for expeditious settlement and disposal of
disputes regarding marriage and family affairs and the matters
connected therewith. Except for the disputes having unavoidable
nexus with the disputes being adjudicated by the Family Court which,
if at all could be referred to the Civil Judge presiding over the Family
Court, it would be clearly improper exercise of discretion on part of the
4
Sh. Liaqat Hussain and others v. Federation of Pakistan & others (PLD 1999 SC 504)C. R .No.54194 of 2023
District Judge to entrust any ordinary civil dispute to the Family Court
having no nexus whatsoever with any pending family case. In forming
such opinion, this Court is additionally fortified by the consideration of
effective administration of justice inasmuch as efficiency of the Family
Courts, which are required to proceed expeditiously with the matters
without strictly adhering to the rules of procedure and evidence
embodied in the Code of Civil Procedure, 1908 and Qanun-e-Shahadat
1984, would be undermined if made to adjudicate upon ordinary civil
disputes where the above enactments are required to be applied.
16.
In the instant case, the reason that prevailed with the District
Judge was that there was shortage of judicial officers in the District
Pakpattan, as three Civil Judges were transferred without substitute
whereas according to the petitioners’ counsel there was no such
shortage in the said District. The office was, therefore, directed to
apprise this Court of the sanctioned strength of Judicial Officers and
that of working in the District Pakpattan, according to which,
sanctioned strength of the Civil Judges and Senior Civil Judges was
nineteen whereas eight of them were posted there. Although total
strength of the Civil Judges was not available at the concerned District,
however, for the reasons stated above, it was not appropriate that those
civil cases which had no nexus with any pending family dispute should
be entrusted to the Family Court.
17.
The precedents relied upon by learned counsel for respondents
No.3 & 4 as well as learned amicus curiae are not relevant and the
same are distinguishable on facts. In the case of Mian Umar Ikram-UlHaque (supra), one party had filed an eviction petition whereas the
other had filed suit for specific performance of the contract and the
Supreme Court of Pakistan had ordered that both the matters be tried
by the same Court. In the case of Syed Mukhtar Hussain Shah (supra)
referred to by the learned amicus curiae, the question related to
jurisdiction of the Family Court over a claim for recovery of an amount
on the basis of entry in Nikahnama as well as a condition in an
agreement between the parties (ex-spouses) and there were two
C. R .No.54194 of 2023
divergent judgments of this Court on interpretation of entry No.9 of
Part-I of the Schedule to the Act, which conflict was resolved by the
Supreme Court declaring lack of jurisdiction of the Family Courts in
holding that the said entry did not include any amount which was not
yet property of the wife but she only had a claim to recover from the
husband while adhering to the literal rule of statutory interpretation. In
fact that judgment supports the view that what does not fall within the
jurisdiction of the Family Court could not be adjudicated upon by it.
18.
For the foregoing reasons, this civil revision is allowed and
while setting aside the impugned order dated 17.07.2023, the District
Judge, Pakpattan is directed to transfer cases, subject matter of the
application, to any of the Civil Judges competent to adjudicate upon
the same who ordinarily is seized of civil matters in accordance with
law.
(RAHEEL KAMRAN)
JUDGE
Announced in open Court on 09.04.2024.
JUDGE
APPROVED FOR REPORTING
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