Necessary Party in Family Case

Necessary Party in Family Case

Sections 2(1)(d) and section 5 of west Pakistan Family courts Act 1964… constitution of Pakistan Article 199…. Constitutional Petition… suit for dissolution of marriage, recovery of maintenance allowance, dowry articles and personal belongings….. impleadiment of father of husband as party by wife … scope… plaintiff wife filed suit against her husband and his father wherein father of husband moved an application for deletion fo his name on the ground that no relived had been had been sought against him… Application for deletion of name of father of husband was accepted by the family court…. Validity.. Plaintiff wife had specifically alleged that dowry articles and personal belongings were in the custody of husband and his father….prayer of plaint was with regard to both defendants… case made out by the wife in her plaint required evidence to determine whether father of her husband was necessary party or not… section 2(1)(d) of west Pakistan family courts Act 1964 did not limit a family suit only between the spouses… any third party whose presence was necessary for adjudication of the matter was also included in the said section…..family could not pass order of deletion without recording of suit otherwise same might not result into an effective, enforceable or binding decree… father of defendant-husband was necessary and proper party for adjudication of the matter…. Impugned order passed by the family court was set aside… constitutional petition was accepted in circumstances… 2011 SCMR 1591

Section 2(1)(d)… Party… Definition.. scope…word, party would include any person whose presence was necessary for proper decision of dispute…

(PLD 2014 Lahore 498)

Exit from Pakistan (Control) List

Exit from Pakistan (control) Ordinance

Section 2 and 3(2) from Pakistan (control) Rules 2010…. Constitution of Pakistan Articles 10A and 199…. Constitution Petition… placement of name of Exit control list on request by financial Institution… default.. Scope… petitioner impugned placement of their names on Exit control on account of outstanding liability to pay amounts to a financial institution (Bank).. Contention of the petitioners was that placement of their name on the exit control list on request of the financial institution and the state bank of Pakistan was illegal.. held… that where a financial intuition was seeking to recover amounts from a customer the banking court after due process of law, adjudicates upon the matter and decide the question of default and without clear determination from a court of competent jurisdiction on the question of default, the state bank of Pakistan could not use state machinery for recovery purpose… key words used in Rule 2(e) of liabilities and admittedly there was no decree against the petitioners with respect to amounts stated to be due to the financial institution…. State machinery could not be used for purposes of exerting pressure or in a private dispute unless government interest was at stake and the same was clearly provided in Rule 2(2)(a) of the exit from Pakistan control rules 2010… petitioners names therefore had been placed on ECL without application of mind, in a mechanical manner and without considering the element of public interest by the respondents.. And they had been denied their fundamental rights without due process of law.. High Court directed that the names of the petitioner be removed from ECL… constitutional Petition was allowed, accordingly. PLD 2010 Lahore 230, 2013 SCMR 1749

(PLD 2014 Lahore 482)

Every Illegal Order can be challenged in Constitutional Petition

Constitutional Petition

Article 199 Constitutional jurisdiction of Higher Court, invocation of ….scope.. Aggrieved person… scope…. If an order was passed by any court or tribunal in violation of law and without authority the same could be questioned by an aggrieved person by invoking constitutional jurisdiction of Higher Court.

PLD 2001 SC 149,

(2014 CLC 1168 Lahore)

Surety against meeting with children

Guardian and Wards

Section 25 , article 199 of constitution Petition.. Maintainability… application for custody of minor… conditional order for visitation of minor subject to submission of surety bond…. Validity…. Mother filed petition for custody of minors which was accepted with the consent of parties subject to affording the father opportunity to meet his minor children… neither mother showed any apprehension of removal of minors form the territorial jurisdiction of court nor her counsel requested for any condition at the time of passing of impugned order as imposed by the Guardian court… proceeding before the Guardian court were conducted in congenial and harmonious manner… despite between the parties was decided with the concurrence of the parties and trail court was not justified in passing an order which was beyond the prayer of parties… father was not likely to remove the minors form the territorial jurisdiction of family court…. Right of father to see his children could not curtailed by imposing condition of submission of sureties every time he had to meet his own children.. Impugned order with regard to imposition of such condition was illegal and arbitrary exercise of power.. Technicalities could not prevent high court to strike down such order in exercise of constitutional jurisdiction when act of court or tribunal would infringe the fundamental rights of citizen.. impugned order was set aside to the extent of imposition of condition with regard to submission of two surety bonds in the sum of Rs.10,00,000/= each with local sureties and same was modified to the extent that father would be entitled to meet his children twice in a month when he would be in Pakistan subject to advance intimation of 72 hours to the mother… father was told that if he would misuse such concession granted by the High court of attempted to remove the minors from the territorial jurisdiction of Guardian court then he would be liable to face contempt of court proceedings and would also loose the right of visitation of his children… constitutional petition was accepted in circumstances.

(2014 CLC 1168)

Framing Additional Issues

Framing Additional Issues

CPC order XIV Rule1, Framing of issues… trail court failed to frame issues as per pleading of the parties and had left some material issues unframed due to which judgment and decrees were suffering from miscarriage of justice… additional issues were framed by the High Court and cases were remanded to the courts below for affording opportunities to produce pro and contra evidence on the additional issues and then to decide the cases afresh

(2014 CLC 1117 Peshawar)