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Petitioner: MUHAMMAD ASIF VS Respondent: ADDITIONAL DISTRICT JUDGE 2Honorable Justice Mian Shahid IqbalMuhammad Ejaz Anwar,Mehdi Khan Chohan
2010 M L D 1997
2010 M L D 1997
[Lahore]
Before Mian Shahid Iqbal, J
MUHAMMAD ASIF---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE 2 and others---Respondents
Writ Petition No.8969 of 2009, heard on 21st July, 2010.
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles or in lieu of its value of Rs.1,050,500---Defendant contested suit and filed written statement---Trial Court decreed suit as per list of dowry articles or in alternative its value to the sum of Rs.700,000---Appellate Court, on appeals, filed by both the parties, dismissed the appeal filed by defendant while partly allowed the one filed by the plaintiff---Plaintiff contended that dowry articles which were transferred to the defendant's house were in three intervals; out of which two transfers of dowry articles were admitted by defendant---Validity---Number of articles given by plaintiff had been admitted by defendant on basis of which Trial Court passed judgment and decree and subsequently on appeals filed by both parties, defendant's appeal was dismissed whereas appeal filed by plaintiff was partially accepted and amount of dowry articles were enhanced after appreciating evidence of parties on record---Constitutional petition by defendant was dismissed by High Court in circumstances.
PLD 2009 SC 757; 2006 MLD 752; Malik Din and another v. Muhammad Aslam PLD 1969 SC 136; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Mst. Shamim Akhtar Samina v. Jaffar Hussain and 2 others 2006 CLC Lah. 852 and Mazhar Iqbal v. Falak Naz and 2 others PLD 2001 Lah. 495 ref.
(b) Constitution of Pakistan (1973)---
----Art. I99---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Constitutional petition---Scope---When a factual controversy had been settled by the two courts below unless and until there were compelling reasons shown for misreading and non-reading of evidence in the said order passed by courts below, was without jurisdiction or there was a visible irregularity while deciding the same, High Court might interfere.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
----S.S, Sched. & S.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Contention that neither written statement nor the statement of defendant's witnesses could have been looked into for appointment of special attorney to defend family suit, for the reason that under S.18 of the West Pakistan Family Courts Act, 1964, except a female no other person (husband) could appoint attorney or represent the same---Validity---Held, husband could file written statement through his attorney and could be represented through the same---Written statement as well as statement given by special attorney of the defendant (husband) could have been looked into and on the basis of the same matter could have been settled.
Naeem Iqbal and 2 others v. Noreen Saleem and others PLD 2008 SC 757 ref.
Abdul Majeed v. Judge Family Court Kehroor Pacca District Lohdran and 2 others 2003 YLR 884 rel.
(d) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched. & S.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Section 17 of the West Pakistan Family Courts Act, 1964 provided that Civil Procedure Code, 1908 as well as Qanun- e-Shahadat, 1984, were not applicable to the proceedings in the Family Court and it had been left with the Judge Family Court to determine its procedure while allowing parties to suits to produce evidence.
Mst. Faizia Firdous v. Ghulam Sabir 2002 CLC Lahore 1801 rel.
Muhammad Ejaz Anwar for Petitioner.
Mehdi Khan Chohan for Respondent.
Date of hearing: 21st July, 2010.
JUDGMENT
MIAN SHAHID IQBAL, J.---This writ petition is directed against the judgment and decree dated 18-2-2009 and 4-4-2009 respectively passed by learned Judge Family Court and learned Additional District Judge whereby appeal titled "Muhammad Asif v. Zubaida Latif" was dismissed vide order dated 4-4-2009.
2. Brief facts of the case are that on 22-7-2008 respondent No.3 filed a suit for recovery of dowry articles or in lieu of its value of Rs.10,50,500, written statement was filed on 1-12-2008. Out of divergent pleadings of the parties, three issues were framed by the learned trial Court. After recording evidence and hearing the parties the learned trial Court decreed the suit by holding that plaintiff is entitled to recover the dowry articles as per list Exh. P2 or in alternative Rs.7,00,000 as its price from the defendant. Being aggrieved by judgment and decree dated 18-2-2009 both parties filed appeals. The learned lower appellate Court after hearing arguments of parties, vide judgment and decree dated 4-4-2009 dismissed the appeal filed by petitioner and partly allowed appeal filed by respondent No.3. Against, the said consolidated judgment and decree dated 4-4-2009 petitioner has filed instant writ petition.
3. Learned counsel for the petitioner submits that list exhibited before the learned trial court was prepared after marriage or at the time of filing of suit which cannot become a part of evidence for deciding the claim. Though no objection was raised at the time of exhibition of said list but subsequently on the next date he did file application raising objection. Learned counsel further submits that at the time of statement of D.W.1 (Special Attorney) all the articles were so mentioned in his statement along with the list which were given to respondent No.3 was placed on record. In that context learned counsel placed reliance on PLD 2009 SC 757 and 2006 MLD 752.
4. On the reverse, learned counsel for respondent has opposed arguments advanced by learned counsel for petitioner, submits that at the time of placing on record list of articles there was no objection, subsequently raising of objection was an afterthought and an application was filed on the day of final arguments; in this context learned counsel for respondent placed his reliance on "Malik Din and another v. Muhammad Aslam" (PLD 1969 S C 136) and "Abdullah and 3 others v. Abdul Karim and others" (PLD 1968 S C 140).
5. Learned counsel further submits that dowry articles which were transferred to the petitioner's house were in three intervals out of which two transfers of dowry articles are being admitted by the petitioner. As far as clothing of the respondent is concerned, there is no specific denial about this fact. Finally submits that points urged by petitioner relates to factual controversy which has been finally settled by both the courts below hence they cannot be gone into, if gone into would amount to reopening of the whole case which fact has not been appreciated by the apex Court. Lastly submits that even if all the submissions are ignored for the sake of arguments even then the written statement/statement of D.W. 1 as Special Attorney cannot be taken into consideration in the light of the following judgments reported as "Mst. Shamim Akhtar Samina v. Jaffar Hussain and 2 others" (2006 CLC Lahore 852) and "Mazhar Iqbal v. Falak Naz and 2 others" (PLD 2001 Lahore 495).
6. I have given anxious consideration to the arguments advanced by both sides. It is settled law that when a factual controversy has been settled by the two courts below unless and until there are compelling reasons shown for misreading and non-reading of evidence in the said t order passed by courts below, is without jurisdiction or there was a visible irregularity while deciding the same, the court may interfere. In the present case number of articles given by respondent has been admitted by the present petitioner on the basis of which learned trial court passed judgment and subsequently on appeals filed by both the parties, petitioner's appeal was dismissed whereas appeal filed by respondent was partially accepted and amount of dowry articles were enhanced after appreciating the evidence of parties on record. Not only this learned counsel for petitioner very strongly argued that list on the basis of which learned trial Court decreed the suit and subsequently it was enhanced (Exh. P2) was prepared at the time of filing of suit and same would not be made basis for decreeing the same unless and until so proved.
7. On the reverse, it is contended that list which D. W.1 submitted before the court was based on proper narration of dowry articles, as such both the lower courts ought to have appreciated the same and decide the case in light of articles mentioned in the list produced by DW-1. A bare reading of both the lists shows; that one was prepared at the time of filing of plaint and other was prepared at the time of filing of written statement. If arguments of learned counsel for the petitioner are accepted then I am afraid that in what conditions and under what law learned counsel stresses that judgment is bad as both the courts below did not consider the list provided by D.W. 1 which was also prepared at the time of filing of written statement. This argument of learned counsel amounts to blowing hot and cold at the same time which law does not permit. Thus his arguments even on this point were not to hold the field.
8. The other point raised by learned counsel for respondent was that neither written statement nor the statement of D.W.1 could have been looked into for the reason that under section 18 of the Muslim Family Court Act, 1964, except a female no other person (husband) can appoint attorney or represent the same. In that context learned counsel for the petitioner had argued that as per latest judgment, the law finally settled was that husband can file written statement through his attorney and can be represented through the same which matter was finally settled in a judgment reported as "Naeem Iqbal and 2 others v. Noreen Saleem and others" (PLD 2009 SC 757).
"No. party could be non-suited merely for the reasons because a plaint/written statement as the case may be, had not been filed by concerned party in person rather through her/his attorney".
In view of latest judgment pronounced in 2009, I hold that written statement as well as statement given by the special attorney could have been looked into and on the basis of same matter could have been settled.
9. The other objection raised by learned counsel that list of articles was exhibited without any formal proof, even the said point cannot be taken care of as in view of section 17 of Family Courts Act, 1964, which makes it abundantly clear that Civil Procedure Code as well as Qanun-e-Shahadat Order, 1984, are not applicable to the proceedings in the family court where it has been left with the Judge Family Court to determine its procedure while allowing the parties to suits to produce evidence. Reliance is placed on a judgment reported as "Abdul Majeed v. Judge Family Court Kehroor Pacca District Lodhran and 2 others" 2003 YLR 884 which says as under:--
---Mere facts that plaintiff did not formally prove specified documents was of no legal consequence, particularly when no objection was raised by petitioner-defendant when said documents were in evidence before Family Court--
10. It is also the case of learned counsel that once a document is exhibited no power of review is available with the Family Court which arguments are further strengthened in view of a judgment reported as "Mst. Faiza Firdous v. Ghulam Sabir" (2002 CLC Lahore 1801) wherein it has been so held that as the Family Court has no power to review its own orders hence once a document is exhibited the same cannot be de-exhibited. Hence, this objection of learned counsel for petitioner does not hold the field.
11. In view of above observations, this writ petition cannot sustain, thus the same is dismissed with no orders as to costs.
M. U. Y./M-475/L Petition dismissed.