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Petitioner: SABA YASIR and another VS Respondent: SENIOR CIVIL JUDGE, MUZAFFARABAD and others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): M. Tabassum Aftab Alvi, Azhar Saleem Babar, Muhammad Sheraz Kiani Title: SABA YASIR and another vs SENIOR CIVIL JUDGE, MUZAFFARABAD and others Case No.: Writ Petitions Nos, 161 of 2013 and 3114 of 2016 Date of Judgment:2018-07-05 Reported As: PLD 2018 High Court (AJ&K) 25 Result: Petition Allowed
JUDGMENT
JUDGMENT M. TABASSUM AFTAB ALVI, C.J.---The captioned Writ Petitions have been filed by petitioners under Article 44 of the Azad Jammu and Kashmir Interim Constitution 1974, whereby, orders dated 14th July, 2012 and 29th Oct, 2016, passed by the learned Senior Civil Judge, empowered as Judge Family Court, Muzaffarabad, and the learned Judge Family Court No, IV, Muzaffarabad, respectively, have been called in question for having been passed without lawful authority. As a common question of law, relating to execution of foreign decrees, is involved in the titled Writ Petitions; therefore, these are being consolidated and decided through the instant single judgment. 2. The facts leading to Writ Petition No,161/2013, are that petitioner, Mst. Saba Yasir, resident of Peshawar, and Yasir Bashir, respondent No,3, residents of Muzaffarabad, contracted marriage on 6th April, 2006. However, later on, their relations became strained, thereupon, Mst. Saba Yasir, went to her parents at Peshawar and instituted a suit against Yasir Bashir, respondent-defendant, before judge Family Court, Peshawar, on 5th January, 2010, for recovery of dower amount Rs,5,00,000/- as well as 15 tolas gold ornaments along with possession of house measuring 10 marlas. situated at Mohallah Dental Hospital, Central Plate, Muzaffarabad AK, for maintenance allowance at the rate of Rs,5,000/-pm for herself and Rs,3000/-pm for minor Hamaila Yasir and also claimed recovery of Rs,50,000/- as medical expenditures, dowry articles amounting to Rs,4,89,500/- and Rs,5,00,000/-, debt allegedly received by her husband Yasir Bashir. After institution of the aforesaid suit, Yasir Bashir, respondent-defendant was summoned through process of Court; however, he failed to turn up, hence, was proceeded ex-parte and consequently, an ex-parte decree was passed in favour of Mst. Saba Yasir, petitioner-plaintiff on 25th Feb, 2010. Admittedly, later on, respondent-defendant moved an application for setting aside the ex-parte decree, supra, which was allowed and same
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was set-at-naught vide order dated 10th May, 2011. Thereafter, respondent-defendant, filed written statement; wherein, he took the plea of jactitation of marriage and raised various legal and factual objections to the claim of petitioner-plaintiff. The learned Judge Family Court, Peshawar, in light of pleadings of the parties framed as many as 15 issues and parties were given opportunity to produce evidence, as defendant had refused pre and post trial reconciliation on account of his plea of jactitation of marriage. Thereafter, both the parties produced evidence in support of their respective claims and finally the learned Judge Family Court, Peshawar, after hearing arguments, delivered its judgment and passed decree dated 28th February, 2012, wherein, following relief was granted to petitioner-plaintiff as well as her minor daughter Hamaila Yasir, which reads as under:- "In the light of above discussion plaintiff is entitled to recover her dower as prayed for, she is further allowed to recover her maintenance at the rate of Rs,5000/- from Jan. 2009 till she remains in the wedlock of defendant. Plaintiff No,2 is allowed to recover her maintenance at the rate of Rs,1500/- Per Month with 15% increase Per Annum since July 2009 till her marriage. Plaintiff is also allowed to recover medical expenses as prayed for. The claim of plaintiff for recovery of dowry articles and rupees 5 Lac stands dismissed for want of proof, the claim of defendant also dismissed." The aforesaid judgment and decree dated 28th February, 2012, were challenged by Yasir Bashir, defendant, in the Court of Additional District Judge-XIII, Peshawar, on 10th April, 2012 whereby, his appeal was dismissed on merits. vide judgment dated 22nd October, 2012. During the aforesaid proceedings, Mst. Saba Y? sir, moved an application to Judge Family Court, Peshawar, for sending a precept to Judge Family Court, Muzaffarabad, under section 46,C.P.C, for execution of the aforesaid decree, which was allowed vide order dated 12th June,2012, and through letter dated 27th June, 2012, the learned Judge Family Court, Peshawar, requested to District and Sessions Judge, Peshawar, that since the judgment-debtor is resident of Muzaffarabad, Azad Kashmir, and petitioner has made a request for transfer of the execution petition to Muzaffarabad, Azad Kashmir, therefore, decree is transmitted for its transfer to Muzaffarabad, Azad Kashmir. The learned District and Sessions Judge, Peshawar, through letter dated 29th June, 2012, forwarded the aforesaid decree to the learned District and Sessions Judge, Muzaffarabad, for further action. The learned District and Sessions Judge, Muzaffarabad, after receiving the aforesaid decree, sent the same to Senior Civil Judge, empowered as Judge Family Court, Muzaffarabad, through order dated 6th July, 2012. The learned Judge Family Court, Muzaffarabad, after receiving the aforesaid precept/execution petition, wrote a letter to District Judge, Muzaffarabad, dated 14th July, 2012, with the observation that High Court of Azad Jammu and Kashmir in its judgment in the case titled Muhammad Siddique Rathore v. Muhammad Muzaffar Khan, reported in PLD 2005 AJ&K 1, held that decrees passed by Foreign Courts are not executable in Azad Kashmir, so the execution petition was returned to District Judge, Muzaffarabad, for further order. The aforesaid order dated 14th July, 2012, has been called in question by Saba Yasir, petitioner/decree-holder, which is subject matter of Writ Petition No,161/2013. 3. The facts forming background of Petition No,3114/2016, are that, in year 2002, Mushtaq Hussain, petitioner, resident of Muzaffarabad, and Mst. Munazza Waris, resident of Lahore, solemnized marriage; however, later on, their relations became strained, due to which, latter along with minors Shahwaiz and Anoosha, filed a suit for maintenance allowance and delivery expenditures, before Judge Family Court, Lahore, on 2nd September, 2013. The petitioner-defendant was proceeded ex- parte and consequently an ex-parte decree was passed in favour of private respondents-plaintiffs, on 22nd January, 2014. After attaining finality, the learned Judge Family Court, Lahore, sent the aforesaid ex-parte decree, through District Judge, Lahore, to District Judge, Muzaffarabad, which was returned to District Judge, Lahore; however, later on, a Reference was sent to the Hon'ble Chief Justice of Shariat Court AJ&K, whereby execution application was sent to the concerned Family
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Court, Muzaffarabad, for hearing and disposal under law, through order dated 12th September, 2014. The learned Judge Family Court No, IV, Muzaffarabad, heard arguments on maintainability of the aforesaid execution petition, however, erected petitioner/judgment-debtor, Mushtaq Hussain, to deposit surety bond of Rs,14,00,000/- (fourteen lac) with the Court till next date of hearing, vide the impugned order dated 29th October, 2016, which is subject matter of Writ Petition No,3114/2016. 4. Mr. Fayyaz Ahmad Janjua, the learned Counsel for Mst. Saba Yasir, petitioner, after narrating facts of the case, submitted that the learned Judge Family Court, Muzaffarabad, committed illegality while sending precept back to the learned District and Sessions Judge, Muzaffarabad, in light of judgment of the High Court titled Muhammad Siddique Rathore v. Muhammad Muzaffar Khan, reported in PLD 2005 (AJK) 1 because territory of Azad Jammu and Kashmir, is under the control of Pakistan; hence, Pakistani Courts are not foreign Courts and judgments and decrees passed by said Court, can normally be executed in Azad Jammu and Kashmir. He further submitted that if this Court arrives at conclusion that Pakistani Courts are foreign Courts, even then the decree in hand is executable, because the same is not hit by any of the exceptions enumerated under section 13 of Civil Procedure Code, 1908, rather Yasir Bashir, defendant, voluntarily appeared and contested suit before Family Court, Peshawar, hence, after himself submitting to the jurisdiction of Family Court, Peshawar, he cannot question its jurisdiction. He in reply to the argument of the learned Counsel for respondent, that under section 17 of the AJ&K Family Courts Act, 1993, provisions of Code of Civil Procedure, are not applicable, submitted that when Family Courts Act or Rules, do not provide procedure and are silent about any matter, then the provisions of C.P.0 can be applied to such matter. The learned Counsel finally submitted that by setting aside the impugned order dated 14th July, 2012, the learned Senior Civil Judge/Judge Family Court, Muzaffarabad, may be directed to continue proceedings for execution of decree passed by the learned Judge Family Court, Peshawar. He, in support of his arguments, cited the following case law:- i. Chormal Balchand Firm, Chowrahat v. Kasuri Chand Seraoji and another [AIR 1938 Calcutta 511], ii. Karim Haider Shah and another v. Raja Khanizaman Khan and another [PLD 1954 AJ&K 1]. iii. Lakhpat Rai Sharma v. Atma Singh [AIR 1962 Punjab 228]. iv. Shalig Ram v. Firm Daulat-Ram [AIR 1967 SC 739]. v. Mst. Maryam Bibi and others v. Muhammad Iqbal and others [PLD 1976 AJ&K 9]. vi. Dr. Padmini Mishra v. Dr. Ramesh Chandra Mishra [AIR 1991 Orissa 263]. 5. Conversely, Sardar M.R. Khan, the learned Counsel for Yasir Bashir, respondent No,3, vehemently submitted that the learned Judge Family Court, Muzaffarabad, did not commit any illegality while sending 'precept back to the learned District and Sessions Judge, Muzaffarabad, because in Pakistan under section 14 of Family Courts Act, 1964, the District and Sessions Judge is an Appellate forum, whereas in Azad Kashmir, Shariat Appellate Bench of the High Court is an Appellate forum in family matters; hence, precept sent by District and Sessions Judge, Peshawar, to District and Sessions Judge, Muzaffarabad, is without lawful authority. He further pointed out that section 46, C.P.C, relates to precepts, Order XXI, Rules, 3, 6 and 8 relate to execution of decrees and sections 38 to 48, C.P.0 relate to procedure for execution; however, under section 17 of the AJ&K Family Courts Act, 1993, provisions of the Code of Civil Procedure, 1908, will not apply to the proceedings before the Family Court; hence, C.P.C. will not be applicable in Family Courts for execution of the judgments and decrees. He contended that although respondent No,3, appeared and contested case before Family Court, Peshawar; however, the decree passed by the aforesaid Court cannot be executed in Azad Kashmir rather the same provides only valid cause of action and foundation for filing a suit in a competent Court of Azad Kashmir; hence, the instant Writ Petition is liable to be dismissed. The learned Counsel, in support of his contentions, placed reliance upon the following authorities:--
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i. Nasir Pervaiz v. Shazia Qayyum and 2 others [2001 CLC (SC AJK) 1072]. ii. Muhammad Sadiq v. Dr. Sabira Sultana [2002 SCMR 1950]. iii. Akhtar Ali Said Bcha v. Mst. Naheed Bibi [PLD 2003 Peshawar 63]. iv. Abdul Khaliq v. Sidra Khaliq and 3 others [2014 SCR 280]. 6. Chaudhary Shaukat Aziz, the learned Counsel for Mushtaq Hussain, petitioner-defendant, narrated detailed facts of the case and submitted that an ex-parte decree of maintenance allowance, dated 22nd January, 2014, was passed by the learned Judge Family Court, Lahore, against his client, which is not executable, because the same is hit by exceptions (b) and (d) of section 13 of C.P.C, and the aforesaid decree only provides foundation to decree-holder for filing fresh suit before concerned Court in AJ&K. He further contended that even otherwise the decree dated 22nd January, 2014, is not executable, because under Rule 4 of the AJ&K Family Courts Procedure Rules, 1998, a wife has been authorized to file suits for dissolution of marriage or dower only and not for maintenance allowance, within the local limits of which she resides ordinarily. He finally craved for acceptance of Writ Petition No,3114/2016, and submitted for setting aside the impugned order dated 29th October, 2016. 7. Conversely, Mr. Shahid Ali Awan, the learned Counsel for respondents Nos,2 to 5 in Writ Petition No,3114/2016, submitted with vehemence that after hearing arguments on maintainability of execution petition and seeking bail bond, the case was fixed for appropriate command, through the impugned order dated 29th October, 2016, meanwhile, petitioner approached this Court, and final order about maintainability of execution petition is still to pass; hence, writ petition is liable to be dismissed on this solitary ground. He pointed out that petitioner remained available in execution proceedings for about two years and afterward challenged the same with mala fide intention only to prolong case. The learned Counsel contended that an ex-parte decree passed by foreign Court can be executed in. AJ&K; therefore, stance of petitioner is not tenable. He finally prayed for dismissal of writ petition and in support of his arguments placed reliance upon the following citations:-- i. Abdul Ghani v. Hail Saley Muhammad [PLD 1960 Karachi 594]. ii. Mst. Maryam Bibi and others v. Muhammad lqbal and others [PLD 1976 AJ&K 9]. iii. Tariq Mahmood v. Mst. Zarda Begum and another [1995 CI,C 1102]. iv. Grosvenor Casino Limited, Shahrah-E-Kamal Ataturk, Karachi v. Abdul Malik Badruddin [1997 SCMR 323]. 8. We have given our dispassionate thought to the arguments addressed at Bar by the learned Advocates for parties and gone through record as well as relevant law with utmost care. 9. We would firstly like to take up preliminary objection raised by Sardar M.R. Khan, the learned Counsel for Yasir Bashir, respondent No,3, that under section 17 of the AJ&K Family Courts Act, 1993, the provisions of Civil Procedure Code, 1908, are not applicable to the proceedings before Family Courts; hence, C.P.0 will not apply in Family Courts' proceedings for execution of decrees. It may be observed here that although in the cases, referred to and relied upon by the learned Counsel for the aforesaid respondent, titled Muhammad Sadiq v. Dr. Sabira Sultana [2002 SCMR 1950], Akhtar Ali Said Bcha v. Mst. Naheed Bibi [PLD 2003 Peshawar 63] and Abdul Khaliq v. Sidra Khaliq and 3 others [2014 SCR 280], section 17 of Family Courts Act, was discussed; however, the point of execution of a foreign decree did not come under consideration in the aforesaid precedent cases. No doubt, under section 17 of AJ&K Family Courts Act, 1993, provisions of Civil Procedure Code, 1908, are not applicable to the proceedings before Family Courts. However, a minute scrutiny of Family Courts Act, 1993, reveals that section 13 of the Act, relates to enforcement of decrees, which reads as under:- "13. Enforcement of decrees:- (1) The Family Court shall pass a decree in such form and in such manner as may be prescribed.
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(2) If any money is paid or any property is delivered in the presence of the Family Court, in satisfaction of the decree, it shall enter the fact of payment and the delivery of property, as the case may be, in the aforesaid register. (3) Where a decree relates to the payment of money and the decorate amount is not paid the time specified by the Court, the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder. (4) The decree shall be executed by the Court passing or by such other Civil Court as the District Judge, may, by special or general order, direct. (5) A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such installments as it deems fit." A plain reading of the aforesaid section reveals that no such procedure was provided for execution of a foreign decree; however, where the situation is not covered by express provision of law, the Family Courts may exercise inherent powers in the interest of justice. The aforesaid view finds support from a case reported as Robeena Fazil v. Yasin Khan [2005 SCR 37], wherein, it was held by the apex Court, as under:- "No doubt the provisions of C.P.C. and the Evidence Act are not applicable in the proceedings conducted under the provisions of Family Courts Act, 1993, however, the inherent powers are available to the Courts which are invoked when any situation is not covered by express provision of law and where the Courts feel that justice is to be done, then in such peculiar circumstances even though no procedure is prescribed for such occasion, the Courts in exercise of inherent powers in such exceptional circumstances allow the parties such relief which in their opinion would meet the ends of justice. in suitable cases where no codified law is available, the Courts have got inherent competence to determine how their proceedings should be conducted. The Court can adopt a suitable procedure which is nearer to the principle of justice." Moreover, provisions of subsection (4) of Section 13, supra, are general in nature that the decree passed by a Family Court is to be executed either by the Court passing it or by any other Civil Court as directed by District Judge through a special or general order, and no procedure has been postulated for execution of a foreign judgment/decree. In such a situation, the powers to execute judgment/decree provided in Civil Procedure Code, 1908, can be followed by Family Courts. The aforesaid view is fortified from a case reported as Mst. Saima Tabassum v. Syed Sher Shah and 3 others [2016 MLD 1430 (Peshawar)], wherein, it was opined as under:-- "Admittedly, section 13(4) of the West Pakistan Family Courts Act, 1964, provides no special provision specifying mode and manner of execution of decree for conjugal rights. Provisions of S.13(4) provides in general terms that decree passed by a Family Court is to be executed either by the Court which had passed such decree or by any other Civil Court as directed by District Judge through a special or general order. Power to execute the decree having been provided for execution such Court can follow the procedure contained in Civil. Procedure Code." It is, therefore, held that where no specific procedure has been provided or where situation is not covered by the express provisions of the AJ&K Family Courts Act, 1993, or by the Rules framed thereunder, the provisions of Civil Procedure Code, 1908, (which came into force in Azad. Kashmir territory on 22nd, March, 1948), would apply to the proceedings of Family Courts. Thus, in order to execute a foreign judgment/decree, procedure can be adopted as provided by C.P.C; hence, argument of the learned Counsel that C.P.0 will not apply in the proceedings of Family Courts for execution of judgments and decrees, stands repelled. 10. The next contention of Sardar M.R. Khan that, the learned Judge Family Court, Muzaffarabad, did not commit any illegality while sending precept/ execution petition back to the learned District and Sessions Judge, Muzaffarabad, because in Pakistan under section 14 of the Family Courts Act, 1964, the District Judge, is an Appellate forum, whereas in Azad Kashmir, Shariat Appellate Bench of the
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High Court, is an Appellate forum in family matters; hence, precept/execution petition sent by District Judge, Peshawar, to District Judge, Muzaffarabad, is without lawful authority, has been taken into consideration. It has already been observed in paragraph supra that in order to execute a foreign judgment/decree, procedure provided by C.P.C, can be adopted in the proceedings of Family Courts for execution of a foreign judgment/decree. As per provisions of section 46, C.P.C, upon application of the decree-holder, the Court, which passed decree, may, whenever it thinks fit, issue a precept to any other Court which is competent to execute such decree. A perusal of record reveals that Mst. Saba Yasir, decree-holder, moved an application to the learned Judge Family Court, Peshawar, to issue precept under section 46, C.P.C, thereupon, the precept was sent to District Judge, Peshawar, with the request to send the same to the relevant Court at Muzaffarabad, which means that basically precept was issued by the Court, which passed decree, and sent it to District Judge, Peshawar, in order to forward the same to the relevant Court at Muzaffarabad. Moreover, according to provisions of subsection (4) of Section 13 of the West Pakistan Family Courts Act, 1964, as well as by subsection (4) of Section 13 of the AJ&K Family Courts Act, 1993, a District Judge has been empowered to direct any other Civil Court through special or general order, for execution of a decree. In this view of the matter, the learned District Judge, Peshawar, while sending precept to the learned District Judge, Muzaffarabad, followed the relevant law and did not commit any illegality. As far, argument to the extent of forum of Appeal is concerned, a perusal of section 14 of The West Pakistan Family Courts Act, 1964, reveals that two forums of appeal have been provided thereunder; 1st is High Court, where the Family Court is presided over by a District Judge, an Additional District Judge, or a person notified by Government to be of the rank and status of a District Or an Additional District Judge, and 2nd is District Court, in any other case, whereas in AJ&K the only forum is Shariat Appellate Bench of the High Court of AJ&K. It is important to observe here that different forums of appeal in family affairs, in AJ&K and Pakistan, do not justify the stance of the learned Counsel that precept sent by District Judge, Peshawar, to District Judge, Muzaffarabad, is without lawful authority, because, as discussed above, provisions of subsection (4) of Section 13 of the Family Courts Act, 1993 and 1964, both in Azad Kashmir and Pakistan, empower the District Judge to direct any Civil Court to execute decree; hence, contention of the learned Counsel is misconception of law. 11. Now, we advert to the argument of Mr. Fayyaz Ahmad Janjua, the learned Counsel for Saba Yasir, petitioner that, territory of Azad Jammu and Kashmir, is under the control of Pakistan; hence, Pakistani Courts are not foreign Courts and their judgments and decrees can normally be executed in Azad Jammu and Kashmir. It would not be out of place to observe here that the proposition regarding AJ&K territory came under consideration before the Hon'ble Supreme Court of Pakistan in a case titled Noor Hussain v. The State [PLD 1966 SC 88], wherein, it was laid down that any territory not constituting part of the Republic of Pakistan, is a foreign territory. The relevant portion of the aforesaid judgment is as under:-- "Learned Counsel has not pressed the contention that the State of Jammu and Kashmir is not a foreign territory. This was a wholly misconceived argument. As was pointed out by the learned Sessions Judge, any territory which does not constitute part of the Republic of Pakistan, and as defined in the Constitution of 1962, is a foreign territory." The same view was reiterated by the Hon'ble Supreme Court of Azad Jammu and Kashmir, in a case titled Commissioner Income-Tax AJ&K, Muzaffarabad v. Messrs Haji Ali Khan & Co. Forest Lessee Havelian (PLD 1985 SC (AJ&K) 62], wherein, it was held as follows:- "It is correct as held by Justice Hamoodur Rehman, J, (as he then was) in Noor Hussain v. the State (1), that the Azad Kashmir territory which does not constitute a part of the Republic of Pakistan as defined in the Constitution of Pakistan is a foreign territory. Nevertheless for all particular purposes, it has all the constitutional features of a Government, It has got its own Constitution, its own High
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Court and Supreme Court and, therefore, it is a Government for all practical purposes; and it matters little as to whether this Government is recognized by the Government of Pakistan or not." So, constitutionally speaking, the Courts in Pakistan are foreign Courts, so far as Azad Kashmir is concerned. The term foreign judgment has been defined in section 2(6) of the C.P.C, as judgment of the foreign Court, and as per definition of the foreign Court, contained in section 2(5) of the C.P.C, means a Court situated outside Azad Kashmir and not established or continued by authority of the Azad Jammu and Kashmir Government. Thus, in view of above definition of ' foreign judgment' and 'foreign Court', it is safely held that the Courts in Pakistan are foreign Courts, so far as, the Azad Jammu and Kashmir is concerned and…
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