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Judgment Sheet
IN THE LAHORE HIGH COURT AT LAHORE
JUDICIAL DEPARTMENT

Writ Petition No.18140/2014

(Muhammad Abid Akram Cheema Vs. Aneela Cheema etc.)

JUDGMENT
Date of Hearing 03.07.2014
Petitioner by: Mr. Muhammad Faheem Bashir, Advocate.
Respondent by: Mr. Ijaz Feroze, Advocate.

Atir Mahmood, J.: Through this writ petition under Article

199 of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioner has challenged the legality of order dated 21.05.2014 passed
by learned Judge Family Court, Lahore whereby the application of
respondent No.1 (the respondent) seeking permission to produce
documents and witnesses was allowed. The said application was filed
by the respondent in her suit for recovery of dower amount and
maintenance allowance after submission of contesting written
statement by the petitioner-defendant and framing of issues by the
family court when the suit was fixed for plaintiff’s evidence .

2. Learned counsel for the petitioner inter alia contends that the
learned family court has failed to take note of the fact that the
application for producing documents and witnesses was filed by the
respondent at a belated stage without offering any reason or
justification; that the application was aimed at to produce additional
evidence on issues, the onus probandi of which is laid on the
respondent but this aspect of the case has totally been ignored by
learned court below; that learned trial court incorrectly interpreted and
applied the provisions of Section 7(2) of the Family Courts Act, 1964
(the Act); that the application of the respondent was hit by Section
11(2) of the Act; that the impugned order has been passed arbitrarily
without appreciating the law on the subject; that the learned court
below has exercised the jurisdiction illegally while committing
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material irregularities, therefore, this writ petition be allowed, the

impugned order be set aside and the application of the respondent for
producing documents and witnesses be dismissed.

3. On the other hand, learned counsel for the respondent has

vehemently opposed this writ petition and fully supported the
impugned order mainly on the ground that the application has been
filed at a stage when no evidence of any party was recorded and the
petitioner has every right of rebuttal and cross-examination upon the
witnesses intended to be produced by the respondent.

4. Arguments heard. Record perused.

5. Learned counsel for the petitioner has stressed more on Section

7(2) of the Act which is reproduced below:

“7(2) The plaint shall contain all material facts relating to the
dispute and shall contain a Schedule giving the number
of witnesses intended to be produced in support of the
plaint, the names and addresses of the witnesses and brief
summary of the facts to which they would depose:

Provided further that the parties may, with the permission

of the Court, call any witness at any later stage, if the
Court considers such evidence expedient in the interest of
justice.
Provided that a plaint for dissolution of marriage may
contain all claims relating to dowry, maintenance, dower,
personal property and belongings of wife, custody of
children and visitation rights of parents to meet their
children.”

(Emphasis supplied)

Bare reading of above provision of law reveals that the plaintiff will
state material facts in the plaint and furnish therewith a schedule of
witnesses giving their names and addresses. At the same time, the first
proviso of the said Section reads that the court may grant permission
for production of any witness at any later stage if the court considers it
necessary to reach a just and fair conclusion. Admittedly, the
application for production of documents and witnesses was filed by
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the respondent when the case was fixed for respondent-plaintiff’s

evidence after framing of issues, as such, the application was at a
preliminary stage of trial. Perusal of application filed by the
respondent reveals that the occasion to file the application arose when
the petitioner denied the existence of a valid marriage and asserted
that it was a paper marriage. The documents and witnesses which
were sought to be produced in evidence, prima facie, appear to be
necessary for just and fair adjudication of the matter. No doubt, the
onus probandi to prove the issue mentioned in the application lies on
the petitioner and such documents can be confronted to the petitioner
or his witnesses when they appear in the witness box and if the
permission to produce such documents is declined at this stage, the
respondent may not be in a position to confront all these documents
which include photographs, video cassettes and audio cassettes of the
marriage ceremony. It was confronted to learned counsel for the
petitioner whether the petitioner is ready to give statement that if the
said documents are confronted to the petitioner or his witnesses at the
time of his evidence, he will not object to it, the answer was in
negative. I am of the considered opinion that if the respondent is not
allowed to produce the documentary as well as oral evidence, there
will be multiplicity of litigation as well. Learned family court while
allowing application of the respondent has not committed any
illegality and the jurisdiction has rightly been exercised by the court.
It is further observed that the petitioner-defendant has every right to
rebut the evidence intended to be produced by the plaintiff and he has
also right of cross-examination upon the plaintiff’s witnesses. In my
view, it is the right of each party to have a fair trial, therefore,
allowing the application by the trial court is appropriate and the
learned family court has exercised its jurisdiction vested in Section
7(2) of the Act fairly and justly and the same will not cause any
prejudice to the rights of the petitioner-defendant.

6. The other contention of learned counsel for the petitioner is that

the impugned order is violative of Section 11(2) of the Act which
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makes necessary for a party to intimate the court within three days of
framing of issues. In my view, the said provision deals with
summoning of witnesses whereby the party has been bound to give
list of witnesses within three days of framing of issues. However, it
does not debar the court to grant permission to a party to produce
additional evidence. Section 7(2) of the Act has overriding effect in
this regard as it has clearly been stated in first proviso of Section 7(2)
that the court at any later stage may grant permission for production of
witnesses. Therefore, the contention of learned counsel for the
petitioner lacks force. The order impugned is based on convincing
reasons. Learned counsel for the petitioner has not been able to point
out any illegality or irregularity therein calling for interference by this
Court in its constitutional jurisdiction.

7. For the aforementioned reasons, this writ petition has no merit.

The same is dismissed.

(ATIR MAHMOOD)
Judge
Akram*
Approved for reporting.

Judge