2014 PLP 1038 (CLC)

MUHAMMAD TARIQ ABBASI, J.

Through the instant writ petition, the judgments and decrees dated 31-3-2009 and 6-11-2009, respectively passed by the learned Judge Family Court and learned Additional District Judge, Burewala have been called in question.

2. The facts are that the respondent No.1 filed a suit against the petitioner, through which she had claimed dissolution of marriage, recovery of dowry amounting to Rs.13,81,150/-, dower valuing Rs.1,00,000/- and past eight months maintenance allowance @ Rs.10,000/- per month total Rs.80,000/-. The said suit was contested through written statement, whereby the contentions raised in the plaint were vehemently denied.

3. During the pre-trial, reconciliation proceedings dated 6-12-2008 the marriage was dissolved on the basis of Khula, subject to the payment of dower amounting to Rs.one lac to the petitioner. To resolve the remaining controversy between the parties, issues were framed, the evidence of the parties was recorded and finally the impugned judgment and decree dated 31-3-2009 was passed, whereby the respondent No.1 was held entitled to receive Rs.6 lac as price of the dowry articles and rest of her claims were dismissed.

4. The petitioner assailed the above said judgment and decree of the learned trial Court, before the learned Additional District Judge, Burewala through an appeal. The respondent No.1 also preferred cross-objections/counter-claim in the appeal filed by the petitioner. The learned Appellate Court through the consolidated judgment and decree dated 6-11-2009, dismissed the appeal filed by the petitioner, whereas while accepting cross-objections/counter-claim, preferred by respondent No.1, enhanced the amount of dowry to Rs.8,61,350/- and also held her entitled to recover maintenance allowance @ Rs.10,000/- per month from 15-4-2008, till expiry of the "Iddat" period.

5. Feeling aggrieved, the instant writ petition has been preferred, with the contentions and the grounds that nothing in support of the claims made in the plaint was brought or available on the record but erroneously, the learned trial Court had decreed the suit in the terms mentioned above; that when the matter went in appeal, the learned Appellate Court had falsely dismissed the appeal and accepted the cross-objections/counter-claims filed by the respondent No.1. It has been requested that by setting aside both the decrees of the above-said learned courts, the suit may be dismissed.

6. Arguments pro and contra have been heard and record perused.

7. It has been observed that before the learned Trial Court to substantiate the claim of the dowry, not only the respondent No.1 herself had appeared and got recorded her statement as P.W.1, but also produced a witness namely Haroon Fida Khan as P.W.2 and also brought on the record proof regarding purchase of the dowry. The list of the claimed dowry was also tendered in evidence as Exh.P-1. During the said evidence, the contention raised and grounds taken in the plaint were reiterated. On the other hand, the petitioner himself appeared in the witness-box as D.W.1, whereby he denied the claims and contentions of the respondent No.1.

8. The learned trial Court, while minutely examining the material available before it and evaluating the stance of both the parties had rightly come to the conclusion that respondent No.1 was entitled to receive a sum of Rs.6 lac as price of the dowry, whereas rest of her claim was turned down. In family matters section 14 of the West Pakistan Family Courts Act, 1964 (hereinafter will be read as Act) prescribes a procedure of filing appeal, against decree passed by a Family Court. For sake of reference, the said provision is reproduced hereinbelow:

Appeal.

[(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable-- (a) to the 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 Judge or a Additional District Judge, and (b) to the District Court, in any other case.] (2) No appeal shall lie from a decree passed by a Family Court

(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section (2) of the Dissolution of Muslim Marriages Act, 1939. (b) for dower (or dowry) not exceeding rupees [thirty thousand); (c ) for maintenance of, rupees [one thousand) or less per month. (3) No appeal or revision shall against an interim order passed by a Family Court. (4) The appellate Court referred to in subsection (1) shall dispose of the appeal within a period of four months.]

9. The above mentioned provision, clearly describes that a decree passed by a Family Court (dower or dowry exceeding Rs.30,000/--, maintenance allowance exceeding Rs.1000), can only be challenged by filing an appeal and nothing else. It was the right of the petitioner to object the decree dated. 31-3-2009, passed by the learned Family Court through appeal, hence he had rightly exercised his said right.

10. Section 17 of the Act, prohibits applicability of the provisions of Qanun-e-Shahadat Order, 1984, and the Civil Procedure Code 1908, (except sections 10 and 11), in family cases. For guidance, the said section is highlighted hereunder:

"

17. Provisions of Evidence Act and Code of Civil Procedure not to apply.

(1) Save as otherwise expressly provided by or under this Act, the provisions of the (Qanun-e-Shahadat, 1984 (P.O. No.10 of 1984), and the Code of Civil Procedure, 1908 (except sections 10 and 11) shall not apply to proceedings before any Family Court (in respect of Part I of Schedule). (2) .."

11. The above mentioned provisions have confirmed that a decree passed by a Family Court (Dower or dowry exceeding Rs.30,000/- and maintenance allowance exceeding Rs.1.000/- per month) can only be objected by filing an appeal and that in family matters/suits, the Qanun-e-Shahadat Order, 1984 and Code of Civil Procedure 1908 (Except sections 10 and 11) are not applicable. Meaning thereby that a decree passed by a family court, by no imagination, can be challenged by way of filing cross objections/counter-claim, as it is the subject of Civil Procedure Code, 1908.

12. It is an established principle of law that when law provides a thing to be done in a particular manner then it must be done in the said manner or should not be done. In the situation in hand, despite the above mentioned settled provisions, the respondent No.1 instead of filing an appeal, erroneously has filed cross-objections/counter-claim, in the appeal preferred by the present petitioner and astonishingly the learned Additional District Judge has not only entertained the said objections/ claim, but by accepting the same has enhanced the price of dowry from Rs.6,00,000/- to Rs.8,61,350/- and also granted interim maintenance allowance @ Rs.10,000/- per month, in favour of the respondent No.l. 13 Consequently, the proceedings of the learned Additional District Judge, Burewala towards entertainment of the cross-objections/counter-claim filed by the respondent No.1, the findings regarding the said objections/claim and the judgment and decree dated 6-11-2009, whereby the said objections/counterclaim have been accepted could not be permitted under the law.

14. The other findings of the learned. Appellate Court, whereby the appeal filed by respondent No.1 has been dismissed have also been perused. The said findings being quite reasonable and result of correct appreciation of the evidence and material available on the record are not open to any exception, hence warrant no interference.

15. Resultantly, this writ petition is partially accepted. The impugned judgment and decree dated 6-11-2009 passed by the learned Additional District Judge, Burewala whereby, cross-objections counter-claim, filed by respondent No.1 have been accepted, is set aside being not acceptable under the law. Rest of the, findings as well as the judgment and decree impugned are maintained. The result is that the judgment and decree dated 31-3-2009 passed by the learned trial Court shall hold the field. AG/N-9/L Order accordingly.