P L D 1987 Lahore 316 (PLP)

Brief facts of the case are that an application, seeking permission for second marriage, pursuance to section 6 of the Muslim Family Laws Ordinance, 1961 and the rules made thereunder, was made by respondent No.l on 28‑12‑1970, to the Chairman Arbitration Council Ward No.16, Mansurabad, Faisalabad. This was granted by the Chairman vide order dated 29‑1‑1971, on the basis of the alleged consent having been given by petitioner. Aggrieved by this order, petitioner filed a revision petition before the Collector, Faisalabad, vehemently denying having given the consent. In this view of the matter, the Collector called for a report of a handwriting expert namely Mr. Naumani, which was submitted on 23‑2‑1978. The handwriting expert opined that the signatures of petitioner on the consent application, do not tally with the specimen signatures of petitioner. On the basis of this, Collector Faisalabad, vide order dated 5‑2‑1979, remanded the case to the Chairman, Arbitration Council Ward No.16 for fresh adjudication. The matter was referred to Brig. (retired) Haider Jang, who declined to act as Chairman. Consequently, it was referred to another councillor, namely, Ata Muhammad, against whom petitioner expressed lack of confidence. Finally, Ch. Muhammad Siddique Salar, Deputy Mayor, Faisalabad was constituted as the Chairman, Arbitration Council who vide order dated 26‑11‑1981, upheld the view expressed by the Chairman of Arbitration Council dated 29‑1‑1971. This was again impugned in revision before the Collector. The revision was accepted and the matter was again remanded on 25‑1‑1982 to Mr. Bashir Ahmad, Councillor as Chairman, Arbitration Council for fresh decision, who for personal reasons declined to undertake the exercise. This matter was finally referred to respondent No.3, who vide order dated 7‑9‑1983 upheld the earlier order dated 29‑1‑1971. Against this order, a revision was again preferred before the Collector, which was dismissed vide order dated 3‑1‑1984. Hence the present petition.

2. The learned counsel for petitioner has raised three‑fold contentions. Firstly, that the Tribunals below have misread the evidence and ignored the material evidence on the record which has resulted into an error, specially as to the question of consent of petitioner. Secondly, it has been contended that Chairman, Arbitration Council Ward No.16 had no jurisdiction in view of the provisions enshrined in rule 3(a) of the West Pakistan Rules under the Muslim Family Laws, 1961. Thirdly, as to the genuineness of ailment of petitioner. However, this last contention has not been pressed.

3. On the other hand, the learned counsel for respondent No.l has contended that petitioner having submitted to the jurisdiction of the Tribunal below at various stages, has consented to the conferment of jurisdiction, if there was any jurisdictional error. Secondly, it is contended that the controversy involves question of fact which cannot be looked into in constitutional jurisdiction.

4. I prefer to advert to the submissions of the learned counsel for respondent No.l before I examine the contentions of the learned counsel for petitioner, as they relate to the jurisdiction. The first question i.e. as to the conferment of jurisdiction by the consent of the parties. I have no hesitation in saying that it is settled law that if a Tribunal lacks jurisdiction, consent of the parties cannot confer such a jurisdiction, on it, and on the other hand, if a Tribunal has the jurisdiction then it cannot be contracted out or ousted by consent of the parties. Therefore, I would like to examine the jurisdictional competence of the lower Tribunal. As to the second contention raised by the learned counsel for respondent No.l, I am of the view that if, the documents before the Court can demonstrate a particular point then the matter does not require factual investigation and this being a Court of record can examine the record and formulate its opinion. Such an exercise would be justifiable in a proper case, depending' upon its merits in the furtherance of the interest of justice. In view of l the peculiar facts of this case, I have opted to examine the record of the case and adjudicate thereupon.

5. First contention that the petitioner's counsel has raised is to the alleged consent on the basis of which the whole controversy revolves. I It is on record that handwriting expert submitted a report categorically giving a finding that the signatures of petitioner do not tally with her signatures on the alleged consent application. It was open to respondent, No.l to question the wisdom of this opinion of the handwriting expert, either by availing of the opportunity of cross‑examining him before the Collector or to rebut the same by leading evidence to the contrary. Neither of the things have been done in this case. I have observed; from the order of respondent No.3, that even she did not advert on, her own even to compare the two signatures as a Tribunal. In this; view of the matter, the evidence of the handwriting expert goes' unrebutted and unchallenged; thus, stands proved. On this basis I) hold that the evidence of handwriting expert is the only material evidence presently available on the file which has gone unrebutted; therefore, it goes to demonstrate that the alleged consent was not the consent oil the petitioner in this case as contemplated by law.

6. As to the question of competency of the Chairman, Arbitration Council, Ward No.16, petitioner has drawn attention of this Court on the following documents to prove the residence of petitioner. These documents were shown in Court and the learned counsel for respondent No.l did not object to it. The documents are: (1) Voters list for the year 1972. (2) Discharge certificate from Gulab Devi Hospital where he was previously admitted. (3) Bail bond filed by respondent No.l in the Court of Local Magistrate. (4) Bank loan deposit receipt. Since petitioner was living with respondent No.l whose address given in these documents is clearly Katchery Bazar, Faisalabad, which does not fall within the geographical unit of Ward No.16. The statute in question has laid down a mandatory requisite in this behalf in Rule. 3(a) of the West Pakistan Rules under Muslim Family Laws Ordinance, 1961, which reads as under: "

3. The Union Council which shall have jurisdiction in the matter for purpose of clause (d) of section 2, shall be as follows, namely: (a) in the case of an application to contract another marriage under subsection (2) of section 6, it shall be the Union Council of the Union or Town in which the existing wife of the applicant, or where the husband has more wives than one, the wife with whom the applicant was married last, is residing at the time of his making the application." A plain reading of this Rule demonstrates that in the instant case, only Chairman, Arbitration Council, within whose geographical limits, Katchery Bazar, Faisalabad falls, had the jurisdiction to whom such an application could competently have been made under the law. Therefore, I am inclined to hold that Arbitration Council, Ward No.16, had no jurisdiction because of lack of residence of petitioner within that area in violation of Rule 3(a) of the West Pakistan Muslim Family Laws Rules, 1961. I have also noticed that in the order, respondent No.3 has only taken a very presumptive view that "possibility cannot be ruled out that parties were residing at Mansoorabad, at the given time". This is not a finding of fact as expected in proceedings of this nature.

7. In this view of the matter, I hold that the alleged consent of petitioner was not a consent in the eye of law, nor the Chairman of Arbitration Council, Ward No.16, had jurisdiction in the matter as conceived by law. Therefore, the order is set aside, being coram non judice.

8. Now I advert to section 6(5), clause (a) of the Muslim Family Laws Ordinance, 1961; which reads as under: "S.6(5)(a). Any man who contracts another marriage without the permission of the Arbitration Council shall: pay immediately the entire amount of the dower whether prompt or deferred, due to the . existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land‑revenue." The aforegoing section provides in mandatory terms that any person contracting second marriage in violation of this law and the E rules made thereunder, shall be liable to be visited by a penalty to the effect that entire amount of dower shall become immediately payable and to be recovered as arrears of land revenue.

9. In this view of the matter, I direct that respondent No.l shall immediately pay entire amount of dower as having been agreed upon and contracted to with petitioner. With these observations, the writ petition is accepted. However, there shall be no order as .to costs. M . B . A . / M‑151/ L Petition accepted .