2023 C L C 1489
[Balochistan (Turbat Bench)]
Before Muhammad Ejaz Swati and Gul Hassan Tareen, JJ
NAVEED AHMED---- Petitioner
Versus
FAMILY JUDGE, PANJGUR and another ----Respondents
Constitution Petition No.(T) 17 of 2023, decided on 2nd March, 2023.
(a) Family Courts Act (XXXV of 1964) ---
----S.14 ---Constitution of Pakistan, Art.199--- Constitutional petition ---Maintainability ---
Decree passed by Family Court ---Execution ---Remedy of appeal ---"Decision given" ---
Scope ---Petitioner assailed the order passed by Executing Court (Family Court) whereby it
had allowed the execution application---Validity ---Impugned order was not an interim order
rather was an order which fell within the definition of word "decision" as prescribed by S.
14(1) of the Family Courts Act, 1964--- Vide impugned order, the Executing Court had over -
ruled the objections of the petitioner and had allowed the execution application made by the respondent ---Executing Court had finally decided the execution application and objections of
the petitioner, therefore, the petitioner was required to avail his remedy of appeal under S. 14
of the Family Courts Act, 1964--- Section 14 of the Family Courts Act, 1964, prescribes an
alternate, effective and exhaustive remedy in the form of a substantive right of appeal to a party who feels itself aggrieved from the decision or a decree passed by a Family Court ---
Remedy of appeal and the forum thereof had debarred the petitioner from directly approaching the High Court in constitutional jurisdiction---Section 14 of the Family Courts Act, 1964, apart from prescribing a statutory right of appeal, also provides a forum in the form of District Court ---Such right of appeal is not without an adequate remedy---
Jurisdiction, under S. 14 of the Family Courts Act, 1964 and under Article 199 of the Constitution are not concurrent, therefore, the petitioner should have availed the prescribed remedy of appeal before approaching the High Court under Article 199 of the Constitution---Constitutional petition was dismissed.
Sana Jamali v. Mujeeb Qamar and another 2023 SCMR 316 rel.
(b) Constitution of Pakistan ---
----Art. 199--- Constitutional petition ---Alternate remedy ---Scope ---High Court may, on the
application of any aggrieved party, exercise its' constitutional jurisdiction under Art.199 of the Constitution, however, such exercise is subject to the Constitution, and if the Court is satisfied that no other adequate remedy is provided by law.
Indus Trading and Constructing Company v. Collector of Customs (Preventive)
Karachi and others 2016 SCMR 842 rel.
Sohail Abid for Petitioner.
Date of hearing: 27th February, 2023.
ORDER
GUL HASSAN TAREEN, J. ----Through this Constitution petition, filed under
Article 199, Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), the
petitioner seeks setting aside of an order dated 22 December, 2022 ("impugned order") passed by the Court of learned Family Judge, Panjgoor ("Executing Court"), whereby an execution application made by the respondent No. 2 was allowed and the petitioner was directed to pay the market value of gold and past and future maintenance in monthly installments along with share of fruit of trees as dower.
2. Brief facts of the case are that the respondent No. 2 instituted a family suit against the
petitioner for recovery of dower and maintenance allowance which was concurrently decreed. The concurrent decrees were upheld on Constitution Petition No. (T) 29 of 2019 by this Court vide order dated 17 September 2020. The respondent No. 2 filed execution application for execution of the decree. The Executing Court after entertaining the objections filed by the petitioner allowed the execution application in the aforementioned terms.
3. We have heard Mr. Sohail Abid, Advocate, counsel for the petitioner, who states that
the petitioner is a person of less means and has a second wife and children, therefore, the
amount of installments fixed by the Executing Court are exorbitant and beyond the income of the petitioner.
4. Arguments heard. Record perused.
5. Vide impugned order, the Executing Court has allowed the execution application
made by the respondent No. 2. The order passed by the respondent No. 1 is appealable before the District Court, Panjgoor under section 14 (1) (b), the Family Courts Act, 1964 ("Act, 1964"), which is a special law. Section 14(1) (b) reads:
S. 14. Appeal.---(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) ………………
(b) to the District Court, in any other case."
The petitioner, instead of preferring an appeal against the impugned order before the
District Court, Panjgoor has directly filed constitution petition in this Court.
6. This Court may, on the application of any aggrieved party, exercise its' constitutional
jurisdiction under Article 199, the Constitution; however, such exercise is subject to the
Constitution and if the Court is satisfied that no other adequate remedy is provided by law. The impugned order is not an interim order rather is an order which falls within the definition of word "decision" as prescribed by the section 14(1), the Act, 1964. Vide
impugned order, the Executing Court has over ruled the objections of the petitioner and
allowed the execution application made by the respondent No. 2. The Executing Court has
finally decided the execution application and objections of the petitioner; therefore, the petitioner was required to avail his remedy of appeal under section 14, the Act, 1964. The impugned order of the Executing Court which is also free from any jurisdictional and material legal error, is not open to any interference by this Court in the exercise of extra ordinary constitutional jurisdiction. The Hon'ble Supreme Court in the case of Indus Trading and Constructing Company v. Collector of Customs (Preventive) Karachi and others, 2016 SCMR 842, has held as under:
"....Ordinarily, the jurisdiction of the High Courts under Article 199 of the Constitution should not be invoked where alternative forum under a special law, duly empowered to decide the controversy is available and functioning. Where a special law provides legal remedy for the resolution of a dispute, the intention of the legislature in creating such remedy is that the disputes falling within the ambit of such forum be taken only before it for resolution. The very purpose of creating a special forum is that disputes should reach expeditious resolution headed by quasi judicial or judicial officers who with their specific knowledge, expertise and experience are well equipped to decide controversies relating to a particular subject in a shortest possible time. Therefore, in spite of such remedy being made available under the law, resorting to the provisions of Article 199(1) of the Constitution, as a matter of course, would
not only demonstrate mistrust on the functioning of the special forum but it is painful to know that High Courts have been over -burdened with a very large number of such
cases. This in turn results in delays in the resolution of the dispute as a large number of cases get decided after several years. These cases ought to be taken to forum provided under the Special law instead of the High Courts. Such bypass of the proper forum is contrary to the intention of the provisions of Article 199(1) of the Constitution which confers jurisdiction on the High Court only and only when there is no adequate remedy is available under any law. Where adequate forum is fully functional, the High Courts must deprecate such tendency at the very initial stage and relegate the parties to seek remedy before the special forum created under the special law to which the controversy relates. We could have relegated the appellant to seek remedy before the appropriate forum...."
7. In this case, the law of section 14, the Act, 1964 prescribes an alternate, effective and
exhaustive remedy in the form of a substantive right of appeal to a party who feels itself aggrieved from the decision or a decree passed by a Family Court. The remedy of appeal and the forum therefor debar the petitioner from directly approaching this Court in Constitutional jurisdiction. Section 14, the Act, 1964, apart from prescribing a statutory right of appeal, also provides a forum in the form of, District Court. Such right of appeal of the petitioner is not without an adequate remedy. Jurisdiction, under section 14, the Act, 1964 and under Article 199, the Constitution are not concurrent; therefore, the petitioner should have availed the
prescribed remedy of appeal before approaching this Court under Article 199, the
Constitution. Recently, the Hon'ble apex Court, in the case of Sana Jamali v. Mujeeb Qamar and another, published in 2023 SCMR 316 has laid down as under:
"12. The maxim Ubi jus ubi remedium (wherever there is a right, there is a remedy), is an elementary principle of law and any person having a right has a corresponding remedy to institute suits in a Court unless the jurisdiction of the Court is barred. The aforesaid principle acknowledges the subsistence of a legal right and can also be invoked when the law seemingly does not provide a remedy for the enforcement of such right. In order to challenge the ex- parte judgment and decree, a right of appeal
was provided to the respondent No. 1 under section 14 of the 1964 Act, but instead of filing an appeal as an equally efficacious and adequate remedy provided under the law, the respondent No. 1 opted to invoke the Constitutional jurisdiction of the High Court which was not permissible. So far as the question of converting one proceedings into another is concerned, meaning thereby the writ petition into an appeal under the 1964 Act, both forums in jurisdiction are altogether different. In this case the appeal lies to the District Court against the Family Court judgment and not to the High Court; hence the High Court could not convert the proceedings into appeal. Had the statutory right of appeal been provided in the High Court, and due to wrong conception or some misunderstanding the Constitution Petition was filed, then obviously, subject to all just exceptions including the question of limitation, the Constitution Petition could be converted into appeal, but in this case the High Court could not assume the role of appellate Court, and if any attempt was made for conversion then that would also be without jurisdiction though the learned High Court had not converted the nature of proceedings but took the cognizance and allowed the constitution petition without taking into consideration section 14 of the 1964 Act
which deals with the right of appeal. In the case of Government of the Punjab through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others (2022 SCMR 25), it was held by this Court that the renowned Latin maxim ubi jus ibi remedium articulares in well- defined terms that where there is a right, there is
a remedy. In the command of jurisdictive prudence, the courts generally show restraint with the direction to the parties to first take recourse of an alternate and or equally efficacious mechanism and framework of remedy provided, rather than to take departure in order to surpass or circumvent such remedy.
13. The 1964 Act is a special law which provides various legal remedies and the intention of the legislature for creating such remedies is that disputes falling within the ambit of such forum be taken only before it for resolution and bypass or circumvention of the forums is not permissible under the command of Article 199 (1) of the Constitution which confers jurisdiction on the High Court only when there is no adequate remedy available under any law. Where an adequate forum is fully functional, the High C ourt must not interfere and must relegate the parties to seek
remedy before the special forum created under the special law. In the case of Deputy Commissioner of Income Tax/Wealth Tax, Faisalabad and others v. Messrs Punjab Beverage Company (Pvt.) Ltd. (2007 PTD 1347 = 2008 SCMR 308), the tendency of by-passing the remedy provided under law, and resort to Constitutional jurisdiction of
the High Court was deprecated by this Court, while in the case of Messrs Amin
Textile Mills (Pvt.) Ltd. v. Commissioner of Income Tax and 2 others (2000 SCMR
201), also this Court referred to the case of Al -Ahram Builders (Pvt.) Ltd. v. Income
Tax Appellate Tribunal (1993 SCMR 29) and discouraged the tendency to bypass the remedy provided under the relevant statute to press into service the Constitutional jurisdiction of the High Court."
8. For the reasons discussed above, this constitution petition being without force and
substance is dismissed in limine.
SA/72/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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