2018 PLP 241 (CLC)

HABIB ULLAH AMIR, J.

The petitioner dissatisfied with order dated 15.12.2016 of learned Judge Family Court, Khanewal has filed instant petition.

2. Succinctly, facts giving rise to this petition are that petitioner instituted suit for recovery of maintenance allowance, dowry articles, personal belongings and delivery charges of minor against respondents in the court of learned Judge Family Court, Khanewal which is controverted by respondents Nos.2 and 3 and during proceedings, Rana Shahzad Zulfiqar, respondent No.2, moved application praying therein that Rana Zulfiqar Ahmad, respondent No.3 was unnecessarily implicated in suit being not a proper and necessary party and made request for deletion of his name with further request that claim in respect to dowry articles may be resolved by appointment of referee. Application is contested by petitioner but learned Judge Family Court accepted application and directed for deletion of name of respondent No.3, however, dismissed application to the extent of appointment of referee, hence this petition.

3. I have heard learned counsel for parties at length and perused the file.

4. Mst. Aila Nawaz, plaintiff/petitioner by filing suit has sought for a decree for recovery of maintenance allowance, dowry articles, personal belongings and delivery charges of minor son against defendants and in paragraph No.4 of plaint, it has specifically been averred by plaintiff that in the year 2010, defendants deprived plaintiff No.1 of her dowry articles and bridal gifts and also by snatching gold ornaments made her to leave house in three wearing apparels. It has also averred in suit that dowry articles are in possession of defendants and plaintiff has been deprived of same.

5. In his application moved by respondent No.2, he claimed that respondent No.3 was not a necessary and proper party and that he was implicated unnecessarily. Application of respondent No.2 was accepted by learned Judge Family Court holding that claim of plaintiff in respect to recovery of dowry articles and maintenance is inter se spouses, therefore, respondent No.3 who is the real father of respondent No.2 was impleaded unnecessarily.

6. The word "party" has been defined in West Pakistan Muslim Family Courts Act, 1964 as under:- "Party" shall include any person whose presence as such is considered necessary for a proper decision of the dispute and whom the Family Court adds as a party to such dispute; "

7. It has been laid down in the case reported as "Muhammad Arif and others v. District and Sessions Judge, Sialkot and others"(2011 SCMR 1591) as under:- "Section 2(d)

"Party"

Definition

Scope

Definition as given in S.2(d) of West Pakistan Family Courts Act, 1964 has two parts i.e. (a) any person whose presence as such is considered necessary for the proper decision of the dispute and (b) any person whom Family Court adds as "party" to such dispute --Definition of word "party" is though not very different from the one obtaining under C.P.C., yet it is comparatively more liberal and extensive than the proverbial "necessary or proper party" of a civil suit."

8. It has also been held in the above-referred case that in suit for recovery of dowry articles contention that wife was competent to file such suit only against her husband and not against the father, mother and brother of her husband is baseless. The observation of the Hon'ble Supreme court is being reproduced hereunder:- "Such a result can only be achieved if other persons who for some credible reason are considered necessary or proper or relevant or related to the dispute and its decision, are also parties in the suit. The clear examples are the suits for the recovery of dowry items, dower property or personal property/belongings (of wife) alleged to be in the possession or use of persons other than the husband or wife. Such persons will per force need implead-ment or addition as parties for a comprehensive, final, effective and proper decision of the dispute(s) and enforcement of the decree (s). Similarly in the matter of custody of minor children, persons having custody of the minors have to be parties to the family suit. Non-impleadment of such persons may result in the frustration of proper adjudication of the dispute by the Family Court which also enjoys the inherent power to delete or strike out any party; un-necessary or improper or unconnected to the cause or the dispute and the suit."

9. It has been observed in the case reported as "Muhammad Anwar and another v. Additional District Judge, Lahore (Miss Uzma Akhtar Chughtai) and 2 others" (2003 YLR 365) as under:- "Term 'party'

Connotation

Term 'party' is not confined only to the spouses but its meanings are wider in sense

If there is a suit for recovery of dowry articles and the dowry articles are in the custody of father of husband then even in lifetime of the husband, his father may also be impleaded as a party as the presence of the father may be considered necessary for a proper decision of the dispute. Since the dowry articles are exclusively in the ownership of wife and same are also recoverable even after the death of the husband then whosoever in possession of such articles may be impleaded as a party as due to the death of the husband the responsibility of the legal heirs for return of dowry articles is not vanished

When the suit for recovery of dowry articles is within exclusive jurisdiction of Family Court, it is to be finally disposed of by the Family Court."

10. It has also been laid down in the case reported as "Ayesha Bibi v. Muhammad Faisal and 2 others" (PLD 2014 Lahore 498) as under:- "Persons jointly entitled or liable must be made parties to the suit otherwise same might not result into an effective. enforceable or binding decree."

11. In the present case, petitioner/wife has specifically averred that her dowry articles and personal belongings are in possession of her husband and his father and prayer in plaint in respect to dowry articles is against both defendants. Learned Judge Family Court has accepted application of respondent No.2 by observing that dispute in respect to recovery of dowry articles is always inter se spouses and that father of defendant No.2 has been improperly added as defendant and, thus, learned Judge Family Court has misinterpreted law on the subject and being so has committed illegality by passing impugned order, so the impugned order is liable to be set aside.

12. For the foregoing discussion, this petition is accepted and order dated 15.12.2016 passed by learned Judge Family Court, Chichawatni is set aside and by holding that respondent No.3 is a necessary and proper party for adjudication of claim of petitioner in respect to dowry articles, the application of respondent No.2 seeking for deletion of the name of defendant No.3 from suit is dismissed. MQ/A-81/L Petition accepted.