2013 Y L R 400

[Sindh]

Before Aftab Ahmed Gorar, J

Syed NAZIM HUSSAIN ZAIDI—Petitioner

Versus

IVTH ADDITIONAL DISTRICT JUDGE, KARACHI and 2 others—Respondents

Constitution Petition No.S-998 of 2012, decided on 7th November, 2012.

Moulvi Iqbal Haider for Petitioner.

Date of hearing: 31st October, 2012.

ORDER

AFTAB AHMED GORAR, J.—Through this Constitutional Petition the petitioner Syed Nazim Hussain Zaidi has impugned the order dated 1-3-2012 passed by learned IVth Additional District Judge, Karachi Central in Family Appeal No.120 of 2010 whereby he dismissed the appeal filed against order dated 23-11-2010 of learned XIIth Civil and Family Judge, Karachi Central dismissing appellant’s application under Rule 5 of Family Court Rules and Oath Act, 1873 and Rule 92 of Sindh Civil Courts Rules.

Brief facts, giving rise to the filing of instant petition, are that respondent No.3, Syeda Sumbel Zehra was married to the appellant on 12-6-2008, however due to differences between the parties, respondent No.3 filed family suit for dissolution of marriage and recovery of dowry articles against the appellant who contested the same and filed written statement. After the pretrial proceedings having resulted in failure, ‘Khulla’ was granted to the respondent in lieu of dower amount, however regarding other claim the Family Court framed issues, recorded evidence and decreed the suit vide judgment and decree dated 18-2-2011. Prior to decree of the suit, appellant had moved an application under Rule 6 of Family Courts Rules, 1965 for return of plaint which was dismissed against which appellant preferred appeal which also met the same fate, hence the instant petition.

Vide order dated 7-9-2012 learned counsel for the petitioner was required to satisfy this Court on the point of maintainability of this petition.

Learned counsel contended that the family suit itself was not maintainable as the Family Court where the suit was filed by respondent No.3 had no jurisdiction to entertain the same in view of the fact that the respondent was not residing at the address mentioned in the plaint, as such the learned Family Court should have returned the plaint for presenting the same before the competent Family Court having territorial jurisdiction. He relied upon the case-law reported in PLD 2001 Lahore 188 and 1991 CLC 1078.

Before proceeding further it would be appropriate to have a glance on Rule 6 of the West Pakistan Family Courts Rules, 1965 which is relevant for the purpose of deciding this petition. The said rule reads as follows:–

“6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which

(a) the cause of action wholly or in part has arisen, Or

(b) where the parties reside or last resided together:

Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction.”

From the perusal of proviso to above rule it is clear that in case of suits for dissolution of marriage or dower, jurisdiction also vests in the Court within the local limits of which the wife ordinarily resides. In the instant case respondent was residing at the house of her maternal uncle situated at Rizvia Society on account of apprehension of abduction at the hands of the appellant. Such version of the respondent was supported by the evidence of her brother Syed Raza Mohammad. In view of this fact, the Family Court which passed the judgment and decree was fully competent to entertain the suit as the place of residence of the respondent did fall within its territorial jurisdiction.

However, learned counsel for the petitioner could not satisfy this court as to how the constitutional petition against an interim order would be maintainable as it is well settled law that interlocutory orders cannot be challenged under the constitutional jurisdiction of this Court. In this connection reference can be made to the cases reported. In 1996 SCMR 1165, 2009 MLD 766 and 2002 MLD 1655. The ratio decidendi of these decisions is that constitutional petition would not lie against any interlocutory order through which the matter has not been decided finally. In the instant case vide orders impugned in this petition only Misc. Application regarding jurisdiction of the Family Court was decided whereas the suit was finally decided by separate Judgment and Decree which has not been challenged in this petition. In this view of the matter, it is crystal clear that the constitutional petition is not maintainable. The case-law relied upon by the learned counsel for the petitioner is not helpful as in both the cases petitioner was husband and an objection was raised as to jurisdiction of the family court, however ultimately the petition was dismissed and the case was decided in favour of the wife.

The upshot of above discussion is that the petition being not maintainable is liable to be dismissed in limine. Order accordingly.

KMZ/N-34/K Petition dismissed.