2014 PLP 2197 (YLR)

ALI BAQAR NAJAFI, J.

Through this Constitutional Petition, the petitioner challenges the judgment and decree dated 3-6-2013 and 11-3-2013 passed by the learned Additional District Judge/ respondent No.5 and the learned Judge Family Court/respondent No.1 respectively, whereby the suit for recovery of dowry articles, maintenance allowance and delivery expenses were concurrently allowed.

2. Brief facts giving rise to the filing of this writ petition are that the suit for dissolution of marriage, recovery of dowry articles and alternate their price and maintenance allowance was filed by respondent No.1 against the petitioner. It was further stated that respondents Nos.2 and 3 were born out from the wedlock who were also not maintained by the petitioner. The suit was resisted and after failure of re-conciliation proceedings on 28-7-2012 the suit for dissolution of marriage was decreed. On 4-2-2013 right of the petitioner to cross-examine the witnesses was struck off under section 17-A of the Muslim Family Courts Act, 1964. On 11-3-2013 the suit was partially decreed as per Exh.P.3 and in alternate Rs.6,00,000 was granted as their price along with delivery expenses of Rs.30,

000. Maintenance allowance was also granted at the rate of Rs.7,000 per month per head since the institution of the suit with 10% annual increase. An appeal was preferred which too was dismissed, hence this writ petition.

3. Learned counsel for the petitioner contends that on 4-2-2013 after filing of the power of attorney time should have been granted for cross-examination of the witnesses; that the petitioner is a poor person and is burdened to pay Rs.21,000 per month is exorbitant maintenance allowance which is out of his financial capacity; that under section 17-A ibid only the right to defend in a suit for maintenance can be struck off but for the suit for recovery of dowry articles no such provisions arc available. Places reliance on SHAZAD HUSSAIN v. JUDGE FAMILY COURT, LAHORE and 2 others (2011 CLC 820).

4. Conversely, learned counsel for respondents Nos.1 to 3 submits that the petitioner submitted two times power of attorney one on 28-7-2012 and then on 4-3-2013 just to prolong the matter; that the respondents were not paid any maintenance. Places reliance on MUHAMMAD ARIF v. UZMA AFZAL and others (2011 SCMR 374).

5. I have heard the learned counsel for the parties and perused the available record.

6. This writ petition is preferred against the concurrent findings of fact recorded by the two courts below. No illegality or jurisdictional defect was pointed out by the learned counsel for the petitioner as the provisions of Article 17-A of the West Pakistan Family Courts Act, 1964 was rightly applied since the petitioner has not complied with the order of interim maintenance allowance. Such non-compliance will deprive the petitioner from his right to defend in the claim of maintenance allowance. To this extent the judgment of apex Court titled as MUHAMMAD ARIF v. UZMA AFZAL, and others (2011 SCMR 374) was duly complied with.

7. However the order under section 17-A of the West Pakistan Family Courts Act, 1964 is specifically for the purpose of granting interim maintenance allowance and is not directly applicable to the suit for the recovery of dowry articles. In this way, both the courts below have misapplied the law when they non-suited the petitioner in the claim for dowry articles on account of the fact that since by applying section 17-A of the West Pakistan Family Courts Act, 1964 the right to defend had struck off, therefore, the petitioner cannot even defend the claim for recovery of dowry articles. This, I am afraid, is tantamount to violation of Article 10-A of the Constitution and the judgment and decree to the extent of dowry articles was passed without a fair opportunity of hearing to the petitioner to defend the claim. Moreover, the law envisages decision on merits but in the instant case this right appears to have been denied to the petitioner. Resultantly, this writ petition is partially allowed, the judgments and decree passed by both the courts below is set aside and as a result of which the suit for dowry articles will be deemed to be pending before the trial Court where the petitioner will be able to produce his evidence and the court will proceed in accordance with law. As far as decree for maintenance allowance is concerned, as already observed, the same is upheld which does not require for interference by this Court in exercise of constitutional jurisdiction.

8. In this view of the matter this writ petition is partly allowed and case is remanded to the trial Court to decide the suit to the extent of claim of dowry articles. AG/A-71/L Order accordingly.