2000 PLP 30 (MLD)

Date of hearing: 1st March, 1999. A suit for the recovery of dowry was filed by Mst. Kaukab Sultana respondent/plaintiff in the Court of the learned Senior Civil Judge/Judge Family Court, Lahore in forma pauperis against the petitioner/defendant. A question of territorial jurisdiction was raised by the defendant/petitioner during the proceedings in the petition for forma pauperies. It was contended that the marriage had taken place at Sahiwal. The parties lastly lived at sahiwal and that the items of dowry were also lying within the jurisdiction of civil court of Sahiwal, therefore, the Civil Court at Lahore had no jurisdiction to try the petition for the suit. Learned civil judge dealing with the matter framed the issues on the controversial points i.e. whether the petitioner was a pauper and that the Court at Lahore lacked jurisdiction. Both the issues were found in favour of the respondent/plaintiff and the suit was directed to be registered.

2. During the trial a number of issues were framed including an Issue No. 3 which ran as under: Whether this Court lacks territorial jurisdiction to adjudicate upon the matter? OPD The learned trial Judge vide his order, dated 26‑1‑1995 came to the conclusion that the Civil Court at Lahore had no jurisdiction, therefore, Issue No. 3 was decided in favour of the petitioner/defendant and against the respondent/plaintiff with the direction that the plaint be returned under Order VII, Rule 10, C. P. C. for its presentation before the Court of competent jurisdiction. Against that order, the respondent/plaintiff filed an appeal which was accepted by Mr. Allah Bakhsh Ranjha, learned Additional District Judge, Lahore vide his order dated 8‑9‑1996 on the gound that the matter. in issue in respect of territorial jurisdiction had already been decided in favour of the respondent/plaintiff vide order dated 21‑2‑1993 by the learned Civil Judge and thereafter the petition for permission to sue as pauper was treated as suit vide order dated 2i‑6‑1993. Since nobody had challenged those orders in appeal or revision, ,therefore, those orders.. having become final, there was no need to frame issue No. 3 or to give finding on the point of territorial jurisdiction. Accordingly, issue No.3 was directed to be deleted and the findings of the learned trial Court were set aside on that issue and the case was sent back to the trial court for proceedings further with the trial.

3. Feeling aggrieved of the order of the learned Additional District Judge, Lahore, the present revision petition was filed on the ground that since the earlier order dated 21‑2‑1993 was passed erroneously considering that the case fell within the jurisdiction of the Family Court and not the Civil Court, therefore, that order was not valid in the eyes of law and hence, during the trial of the suit, issue No. 3 was framed and a decision was given that the Civil Court at Lahore had no territorial jurisdiction. In this respect, it was further contended that the Ahlmand had given number to the suit as a family case and not as a civil suit, and therefore, by mistake the assumption of the jurisdiction at Lahore had vitiated the previous finding and that the finding given subsequently on Issue No.3 vide order dated 26‑1‑1995 was good in the eyes of law and that the learped Additional District Judge fell in error to upset the same.

4. I have heard the learned counsel for the parties on the points raised above. It is clear enough that the question of dowry at the time of institution of the suit was admittedly to be tried by the Civil Court and not by the Family Court as the relevant schedule under Family Court Act was not amended by then. In that situation the mere,mis‑description by Ahlmad to give number to the suit as a family suit would not affect the merits of the case particularly when the judgment given on 21‑2‑1993 was that of the Civil Judge 1st Class, Lahore treating the matter as a civil suit as would be clear from the order itself. Similarly, the subsequent order dated 26‑1‑1995 will also show that it was decided as a civil matter by the Civil Judge 1st Class, Lahore. Hence there is no doubt that the matter was treated from the ‑very beginning as civil suit and not as a family case though the Ahlmad had given it a wrong number as 57/FC/86. Perhaps the Ahlmad was confused with the word 'dowry' qua the word 'dower' although both had different connotation and meanings. It is perhaps for that reason that over the 'officer/stamp, the words' HAQ MEHR are written and under that mistake the Ahlmad might have given a number of Family suit by misunderstanding the word 'dower' as 'dowry'. However, there is no such mistake in the orders, dated 21‑2‑1993 and 26‑1‑1995 delivered by the learned Civil Judge 1st Class, Lahore who throughout treated the matter as a civil suit. In such a situation, the objection raised by the learned counsel for the petitioner does not appear to be forceful.

5. Now coming back to the impugned judgment of the learned Additional District Judge, it is clear that since the matter in issue in respect of the territorial jurisdiction had been resolved and decided in favour of the respondent/plaintiff, therefore, there was no need to frame issue on that controversy while trying the main suit nor there was any need to give a fresh finding on that point. It is also clear and an admitted fact that none of the parties had challenged the finding given on 21‑2‑1993, whereby, the Civil Court at Lahore had assumed the jurisdiction nor the same was challenged when the petition for forma pauperis was treated as a regular suit vide order dated 21‑6‑1993. Hence the matter having become final between the parties on the basis of the, evidence and the contest made by them, therefore, Issue No.3 was subsequently framed on account of the misapplication of mind by the learned trial Court. In fact once the matter had been settled in respect of the territorial jurisdiction, the same Court could not have jurisdiction to reopen the controversy and to give finding contrary to its order passed earlier, whereby, it had assumed jurisdiction at Lahore. As such, there is no patent or latent legal flaw, irregularity or illegality in the order passed by the learned Additional District Judge, Lahore, therefore the revision petition being meritless is dismissed with the direction that the parties shall now appear before the learned trial Court on 5‑4‑1999 for further) proceedings. The parties are, however, left to bear their own expenses. M‑1178/L. Petition dismissed.