2012 PLP 517 (CLC)

IJAZ AHMAD, J.

Iqra Shahzadi and Aqsa Shahzadi two daughters were born out of the wedlock of the parties. The dispute besides the other matters regarding the custody of minors was resolved by the Arbitration Council. The petitioner was made to pay Rs.1000 p.m. to each of the minors. Land measuring 5 marlas was agreed to be transferred to the minors. The petitioner was held to have a right to see the minors on every Sunday. An agreement dated 22-7-2009 in this regard was executed between the parties. The petitioner later on instituted a suit for the custody of the minors before the learned Guardian Judge, Pindigheb on 1-9-2009. The suit, appeal and the writ petition were dismissed. The petitioner then preferred C.P. No.531 of 2010 before the august Supreme Court of Pakistan. It was dismissed vide judgment dated 11-5-2010 in the following terms:-- "We have heard both the sides and have gone through the impugned judgment, relevant para of which is reproduced hereinabove. Learned High Court on having taken into consideration the material available on record has concluded that the children have developed aversion against their father/petitioner. and they are reluctant to see him. This is factual aspect of the case, which is apparent from the contents of the judgment of Family Court. "Thus, petition is dismissed and leave to appeal declined." Having failed in the Family Court and uptil the august Supreme Court of Pakistan, the petitioner instituted a suit before the learned Civil Judge, Pindigheb for specific performance of the agreement dated 22-7-2009. It was contested. Issues were framed. The parties led their respective evidence. The suit was dismissed vide judgment and decree dated 21-1-2011. The appeal preferred by the petitioner has also been dismissed by the learned Additional District Judge, Pindigheb vide judgment and decree dated 12-4-2011.

2. It is contended by the learned counsel for the petitioner that the right of the custody of minors primarily rests with the father even in the case of sucklings; that both the courts below have decided issues of maintainability against the provision of law.

3. I have heard the learned counsel for the petitioner and also gone through the record.

4. The agreement in question, the subject-matter and the relief sought pertain to the right of the parties to the custody and to the rendezvous with the children. Under section 5 and Part-I of the Schedule annexed with the Family Courts Act, 1964, the matter relating to the custody of the children and the visitation right of the parents falls within the exclusive jurisdiction of a Family Court. In the former suit, the Family Court had finally dismissed the suit of the petitioner seeking the custody of the minors. The decree passed by the learned Judge Family Court had earned the confirmation uptil the august Supreme Court of Pakistan. The instant suit instituted to determine the right of visitation of the petitioner based on whatsoever ground or an agreement between the spouses falls within the exclusive jurisdiction of the Family Court. Even if the right of visitation was not agitated in the earlier suit, the said right of the parties did exist and could be claimed in the earlier finally decided suit. This matter shall be deemed to have been directly and substantially in issue in the earlier suit. The principle of constructive res judicata applies in this case and the Court seized with the instant suit could not try it in view of section 11, C.P.C. which is applicable in the suits before a Family Court under section 17 of the Family Courts Act, 1964. The suit in question is also not maintainable in view of section 21 of Specific Relief Act, 1877. It reads as follows:

Contract not specified enforceable. The following contracts cannot be specifically enforced:

(g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;

5. In the instant case, the agreement contained a promise on behalf of the respondent to arrange the meeting of the petitioner with the minors till an indefinite period. Even if the parties had not engaged themselves in the earlier round of litigation, this suit was not maintainable in view of the above said provision of law. Both the Courts below have rightly dismissed the suit and the appeal of the petitioner. The petitioner has engaged the respondent in a protracted litigation. This petition has no force. It is hereby dismissed with costs throughout. M.W.A./M-392/L Petition dismissed.