ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                  C.P No.466 of 2009                         

DATE         ORDER WITH SIGNATURE OF JUDGE

1. FOR KATCHA PESHI.

2. FOR HEARING OF MA NO.3435/09.

05-03-2010.

Mr. Sakib Masood Qureshi, Advocate for Petitioner.

Mr. Anwar H.Ansari, State Counsel.

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                        This constitutional Petition has been filed by the applicant Abdul Latif against the order passed by Family Judge, Hyderabad on 15-09-2009, dismissing the miscellaneous application filed by the Petitioner in the trial Court for permission to produce documents in evidence. The documents sought to be produced were the certificates issued by Hyderabad Sarraf and Jeweler Group dated 18-03-2008 mentioning gold rates from 01-09-2005 to 10-09-2005 and certificate issued by Sarrafa Jewellers Association Larkana dated 11-10-2008 mentioning gold rates from 01-09-2005 to 10-09-2005. Record shows that the written statement was filed by the defendant in the trial Court in the month of August, 2007. The petition further shows that the Respondent No.1 was cross examined by the learned counsel for the Petitioner on 13-05-2008. The trial Court has passed the impugned order on the basis of subsection (3) of section 9 of Family Courts Act, 1964, which provides that “where a defendant relies on any other document not in his possession or power as evidence in support of his written statement, he shall enter such documents in a list to be appended to the written statement giving reasons of relevancy of these documents to the defence in the written statement”. Since this provision was not complied with, therefore, the Petitioner was not allowed the permission to produce the documents in Court. The cross examination conducted on the lady Mst. Saima on 13-05-2008 also shows that the detailed cross examination was already conducted on her, regarding the gold ornament receipts, which is already on record and this evidence is yet to be considered by the trial Court at the time of final decision of the suit. In addition to the cross examination, conducted on the lady Mst. Saima, the learned counsel states that he had moved an application also in the trial Court for calling Jeweler for the purpose of cross examination, who issued certificate showing the gold rates prevailing in the year 2005 in favour of Mst. Saima. This application was also dismissed by the trial Court in the last month but that order was not challenged by the Petitioner in this Court. The present constitutional petition against the interlocutory order is not maintainable, specially in the circumstances when detailed cross examination has already been conducted on the same point, not only on Mst. Saima but also on her witnesses, however, the order passed on his second application in which he requested to summon Jeweler who issued certificate, has not been challenged by him in this Court, for which he intends to file petition subject to instructions of his client. I am of the view that the matter does not pertain to the price of gold, in fact, the defendant in para No.3 of his written statement alleged that dowry articles are in possession of defendant and as far as the list of dowry articles is concerned, it is managed, fictitious and fabricated. It was further alleged that few dowry articles were given by the plaintiff family at the time of marriage but all said articles were shifted by the plaintiff from the house of defendant to her sister Zaib-un-Nisa. If it is proved that all dowry articles are already in the custody of plaintiff, then the price of gold and related controversy will be immaterial. There is no justification to upset the findings of trial Court, however, the Petitioner shall be at liberty to take all the pleas in the appeal, if any final judgment is passed against him in the family suit. The intricacies of CPC are not applicable to the Family Suits, as already mentioned under section 17 of Family Courts Act, 1964 and according to section 12-A, it has been provided that Family Court shall dispose of a case within period of six months from the date of institution. The above Family Suit is pending in the trial Court since 2007; the learned trial Court is directed to expedite the matter and decide the same within three months positively.

                        In view of the above circumstances, the petition is dismissed in limini, along with pending applications.

                                                                                                                        JUDGE.

A.C