IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD

Constitution Petition No. S–133 of 2024

 

( Sheeraz Saeed v. Maria Sarwar & Others )

 

 

Present:

Sana Akram Minhas J

 

 

               

                            Petitioner:                                            Sheeraz Saeed

                                                                                            Through Mr. Farooque Ali Jakhrani, Advocate

 

                            Respondent No.1:                              Ms. Maria Sarwar

                                                                                            Through Mr. S.M. Imran Alvi, Advocate

 

                            Date of Hearing / Short Order:        20-9-2024

                               

                            Date of Reasons:                               10-10-2024

 

 

               

 

J U D G M E N T

 

 

 

1.            Sana Akram Minhas, J: The Petitioner (Father), through this Petition, seeks to challenge the concurrent findings of the Executing and Appellate Court, asserting that he is aggrieved by the following:

 

i)              The order dated 2.2.2024, passed by the Executing Court in Family Execution Application No.188/2021 (Maria Sarwar & Another v. Sheeraz Saeed) (“Impugned Order of Executing Court”), dismissing the Petitioner’s application (who was Defendant/ Judgment Debtor in the Family Suit) seeking to pay the decretal amount of Rs.1,700,000/- in monthly instalments of Rs.10,000/- (out of which Rs.350,000/- have been paid by the Petitioner in circumstances outlined in paragraph 18 below). This Execution Application, in turn, stems from Family Suit No.325/2020 (Maria Sarwar & Another v. Sheeraz Saeed), which was partly decreed on 17.3.2021, and subsequently modified by the Appellate Court in its judgment and decree dated 8.9.2021 (passed in Respondent No.1’s Family Appeal No.54/2021);

 

ii)             The judgment dated 22.3.2024, passed by the Additional District Judge Hyderabad in Family Appeal No.49/2024 (Sheeraz Saeed v. Maria Sarwar & Another) (“Impugned Judgment of Appellate Court”), which dismissed in limine the Petitioner’s Family Appeal (against the Impugned Executing Court’s Order dated 2.2.2024) as being not maintainable against an interim and interlocutory order.

Essential Facts

 

2.            The key facts are summarized below:

 

i)              A Family Suit No.325/2020 was filed by Respondent No.1 (Plaintiff/Decree Holder) and was partially decreed by the Trial Court through its judgment and decree dated 17.3.2021. Both parties subsequently filed appeals: the Petitioner’s Family Appeal No.53/2021 was dismissed, while Respondent No.1’s Family Appeal No.54/2021 was partially allowed by judgment and decree dated 8.9.2021 (thereby partly modifying the Trial Court’s earlier judgment and decree dated 17.3.2021).

 

ii)             Following this, the Petitioner filed Constitutional Petition No.            S–541/2021 before this Court, challenging the dismissal of his Family Appeal No.53/2021. However, the said Petition was dismissed for non-prosecution on 29.9.2022 and restoration application was also dismissed on 2.11.2023.

 

iii)            The Respondent No.1 then filed Family Execution Application No.188/2021, seeking execution of Family Court’s judgment and decree dated 17.3.2021 (issued in Family Suit No.325/2020) as modified by the Appellate Court’s judgment and decree dated 8.9.2021 (issued in Family Appeal No.54/2021).

 

iv)           The Family Execution Application No.188/2021 was allowed by the Executing Court on 7.3.2023, directing the Petitioner to comply with both the Trial Court’s judgment and decree, as well as the Appellate Court’s modified judgment and decree, within fifteen (15) days from the date of the order.

 

v)            Following the Petitioner’s non-compliance, the Respondent No.1 filed an application seeking execution of the decree(s), including the arrest and detention of the Petitioner. This application was granted on 22.9.2022, and a warrant for the Petitioner’s arrest was issued.

 

vi)           On 8.11.2023, the Petitioner filed an application to recall the arrest warrant, with further request to pay the decretal amount in monthly instalments of Rs.10,000/-. Consequently, the arrest warrant was recalled pending further orders.

 

vii)          Subsequently, the Executing Court by Impugned Order dated 2.2.2024 dismissed the Petitioner’s application for payment in instalments. In response, the Petitioner filed Family Appeal No.49/2024 before the Appellate Court, which was dismissed in limine by the Impugned Judgment dated 22.3.2024, ruling that an appeal could not be maintained against an interim and interlocutory order.

 

3.            The Petitioner has now instituted the instant Petition on 28.3.2024 against the aforesaid Impugned Order of Executing Court and Impugned Judgment of Appellate Court.

 

 

Respective Arguments

 

 

4.            The Petitioner’s Counsel asserts that the appeal was competent against the Impugned Order of the Executing Court as the latter order is an appealable order in terms of section 14(1) of the Family Courts Act, 1964 (“1964 Act”). He avers that the Petitioner is unable to pay the full decretal amount due to financial constraints, as the Petitioner, employed as a medical representative with a monthly income of Rs.62,000/-, is also responsible for supporting his mother, second wife, unmarried sister, and niece, making it difficult for him to meet the financial demands in question.

 

5.            Conversely, the Respondent No.1’s Counsel supports both the Impugned Order and Judgment, rejecting the Petitioner’s proposed instalment plan as a delay tactic. He argues that if the Petitioner had the financial means to pursue a second marriage, he must certainly be able to pay the decretal amount in its entirety.

 

 

Question For Determination

 

 

6.            I have heard the arguments and perused the record.

 

7.            The appeal provided under Section 14(1) of the 1964 Act applies to “a decision given or a decree passed by a Family Court”. The question arises whether an order passed during execution proceedings, refusing payment of the decretal amount in instalments under Section 13(5), can be equated with “a decision given” within the meaning of Section 14(1) of the 1964 Act, and is thus appealable, or whether such an order constitutes “an interim order” under Section 14(3), and is therefore not appealable.

 

 

Opinion Of Court

 

 

8.            To begin with, an interim order is typically a temporary ruling that does not resolve the substantive or core issues of the case but rather addresses procedural or preliminary matters. The Impugned Order of the Executing Court, having been issued during the execution phase for the enforcement of a decree, does not qualify as an interim order under the meaning of Section 14(3) of the 1964 Act as there are no further proceedings left to be conducted in the case i.e. the case is fully concluded with no outstanding matters to address.

 

9.            This leads to the next issue: whether the Impugned Order made during execution proceedings, denying payment of the decretal amount in instalments under Section 13(5) of the 1964 Act, can be classified as “a decision given” under Section 14(1), and therefore be subject to appeal.

 

10.          Not every court order qualifies as a "decision" that can be appealed. The term "decision" cannot be confined to a rigid, universal definition. Its meaning is fluid and varies, based on the specific circumstances of each case. What qualifies as a "decision" in one legal situation may not hold the same weight in another. Therefore, determining whether a particular ruling constitutes a "decision" requires careful consideration of its legal significance and effect on the rights of the parties involved.

 

11.          In Muhammad Arifuddin v. Mujeebunnissa (1996 CLC 1372), Rana Bhagwan Das, J determined that orders that regulate court proceedings without resolving the rights and obligations of the parties, such as adjournments or procedural rulings, do not fall within the scope of a "decision given". However, orders that affect substantive rights, like those involving child custody or interim maintenance, may be considered decisions in the appealable sense.

 

12.          In the present case, the order refusing payment of decretal amount in instalments (under Section 13(5) of the 1964 Act), did not settle the parties’ rights and, therefore, cannot be typically classified as "a decision given" under Section 14(1). Instead, such an order deals with the procedural enforcement of an already established decree and addresses how payment will be carried out without altering the substantive rights determined in the original decree. As it focuses on the modality of compliance rather than a final resolution of the case, the order is to be considered an ancillary order, which does not alter the substantive rights of the parties or the primary judgment and decree (for payment of money). Therefore, in this instance, the refusal to allow instalments under Section 13(5) is not appealable under Section 14(1).

 

13.          In an unreported order dated 29.11.2023, a Single Bench of this Court, in CP No.S-487/2023 (Muhammad Sajid v. Lubna Shaikh), dismissed in limine the petition filed by the father/judgment debtor. The petitioner challenged the appellate court's decision, which had dismissed his appeal as not maintainable against the rejection of his request to pay the decretal amount in instalments.

 

14.          It is crucial to highlight that the Petitioner has already pursued and exhausted his right to appeal against the Family Court's original judgment and decree dated 17.3.2021. The latest appellate proceedings he initiated against the Executing Court’s Impugned Order essentially represent a second attempt at appealing, or a renewed effort to challenge the Family Court’s rulings. The Executing Court's assessment that the Petitioner has been resorting to delaying tactics is, therefore, of importance and cannot be overlooked.

 

15.          The preamble of the 1964 Act emphasizes the swift resolution of marriage and family disputes. Allowing every Family Court or Executing Court’s order to be challenged through appeals (in this case twice) or questioned under writ jurisdiction in the High Court would undermine the very purpose of the Act, which is to facilitate the prompt resolution of family disputes. The Appeal against the Impugned Order of the Executing Court was, therefore, rightly held to be incompetent, albeit for reasons (set out in paragraph 12 above) which differ from those articulated in the Impugned Judgment of the Appellate Court.

 

16.          Additionally, since the Petitioner has approached this Court in its constitutional jurisdiction under Article 199 of the Constitution, 1973, the Petitioner’s conduct bears scrutiny as established in Muhammad Arif v. Uzma Afzal (2011 SCMR 374), a case that emerged from Family Court proceedings.

 

“  5. There is no cavil to the proposition that the “conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court in exercise of writ jurisdiction is bound to proceed on maxim "he who seeks equity must do equity". Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands. He may claim relief only when he himself is not violating provisions of law, especially of the law under which he is claiming entitlement”. … … … … ….. It is well-settled by now that “who is guilty of bad faith and unconscionable conduct. The right is in the nature of ex debitto justitiae, but will not be granted if the petitioner can show his conduct has not been such as to disentitle him of such relief. This jurisdiction of the High Court should not be exercised if it leads ultimately to a patent injustice”. … … … … ….”

17.          Since the passing of the original decree in 2021 (initially decreed on 17.3.2021 and later modified by the Appellate Court on 8.9.2021), the Petitioner has contested it at every possible forum. After exhausting all available legal remedies, the Petitioner has now proposed an instalment plan before the Executing Court at this final juncture, viewing it as his last arrow in the quiver and holding it back as the final tactic in his strategy of delay.

 

18.          Under Section 13(3) of the 1964 Act, a decree must be executed within 30 days. However, in this case, nearly 3½ years have elapsed since the issuance of the decree in 2021. To date, the Petitioner has only deposited a total of Rs.350,000/- towards its satisfaction (comprising Rs.150,000/- in October 2023 and Rs.200,000/- deposited as recently as April 2024). Notably, this last amount of Rs.200,000/- was paid under compulsion to secure this Court’s urgent directions to the Trial Court for the Petitioner’s release, as reflected in the order of 2.4.2024.

 

19.          The Petitioner's justification for seeking instalment payments, citing his financial support for other family members, including his second wife, reflects a clear misalignment of priorities. It underscores his neglect of his primary obligations towards his first wife and child, suggesting that his responsibilities to them (in particular his parental obligations) are being unjustly sidelined. Furthermore, the Petitioner’s claims of financial hardship, if any, are inconsistent with his demonstrated ability to fund a second marriage, and thus his request for instalment payments should be approached with scepticism.

 

20.          Lastly, none of the Petitioner’s three newly proposed payment plans[1] (presented before this Court on 2.9.2024) are acceptable to the Respondent No.1, as communicated through her Counsel. The primary concern is there is no assurance that the Petitioner will adhere to the proposed timelines or refrain from seeking further extensions in the future, prolonging the enforcement of the decree. This lack of certainty makes the Respondent No.1 justifiably unwilling to accept any instalment plans. In this regard, a pertinent reference can be found in Noshad Ali v. Afzanat Rauf (2013 CLC 492).

 

21.          In Yasmeen Bibi v. Muhammad Ghazanfar Khan (PLD 2016 SC 613), the Supreme Court of Pakistan emphasized the 1964 Act's objective of ensuring swift resolution of matrimonial cases while preventing delays commonly caused by husbands. The Court observed that key amendments (such as Sections 12-A, 17-A and 21-A) were made to the Act to combat such tactics, underscoring the necessity of timely adherence to court orders.

 

22.          The Supreme Court, in M. Hamad Hassan v. Isma Bukhari (2023 SCMR 1434), recently revisited the issue of family matters being brought forward through constitutional petitions after exhausting the entire statutory remedial hierarchy. In unequivocal terms, the Court has criticized this trend. It emphasized that, in such cases, the High Court does not typically assess or re-examine evidence or overturn findings of fact. The Court cannot allow constitutional jurisdiction to replace appellate or revisionary jurisdiction and should not lightly interfere with the finality associated with the last stage of proceedings in the statutory hierarchy, as doing so may undermine the clear intent of the legislature. Additionally, the Court’s primary concern should be with any jurisdictional defects. Similar viewpoints were earlier expressed in Arif Fareed v. Bibi Sara (2023 SCMR 413).

 

 

Conclusion

 

 

23.          Considering the circumstances and reasoning outlined above, exercising jurisdiction in this case may result in an injustice. Accordingly, this Petition is found to be without merit and is thus dismissed.

 

24.          The instant Petition was dismissed via a short order dated 20.9.2024. Here is why.

 

 

JUDGE

 

Hyderabad

Dated: 10th October, 2024

 


[1] The Petitioner’s three (3) proposed payment plans are:

Proposed Schedule No.1 aims to finalize payments from 1.9. 2024 to 1.7.2026.

Proposed Payment Schedule No.2 seeks to complete payments between 1.9.2024 to 1.3.2026.

Proposed Payment Schedule No.3 intends to make payments from 1.9.2024 to 1.12.2025.