2009 PLP 221 (CLC)

SARDAR M. ASHRAF KHAN, J.

The above titled appeal has been directed against the judgment and decree of Judge Family Court, Pallandari dated 3-9-2005 whereby, the suit for recovery of dower was dismissed by the said Court for lack of jurisdiction.

2. The brief facts forming the background of the instant appeal are that the appellant herein filed a suit for recovery of dower to the tune of Rs.27,500 before the Judge, Family Court, Pallandari on 11-1-2005. The trial Court after due process of law, dismissed the suit vide its judgment and decree dated 3-9-2005 hence this appeal.

3. Sardar Muhammad Akhtar Khan, the learned counsel for the appellant argued that the trial Court committed grave illegality while recording the impugned judgment and decree. The learned counsel contended that the trial Court has wrongly and illegally dismissed the suit for want of jurisdiction. Finally, the learned counsel prayed that by accepting the appeal the impugned judgment and decree may be set aside as being erroneous, illegal, and against the relevant rules. .

4. Nobody appeared on behalf of the respondent and no arguments have been advanced on his behalf therefore, need not to be discussed.

5. I have heard the learned counsel for the appellant and gone through the record of the case with utmost care.

6. It has been noticed that the trial Court, initially decreed the suit filed by the appellant ex parte, which was later on set aside the same and dismissed the suit on the question of jurisdiction, which was neither raised in written statement nor contended by any of the party, disregarding the fact that unless objection as to jurisdiction can be raised at the earlier possible opportunity, and if not raised the same would, be deemed to have been waived.

7. In this regard, the trial Court appears to have ignored the fact, that even if, it had no jurisdiction to entertain the same, the plaint was required to be returned to the plaintiff under section 5 of Family Court Rules.

8. The trial Court has also erred, while holding that it is not vested with the jurisdiction to hear the suit. In this regard section 5 of Family Courts Rules, envisages that the Family Courts shall have exclusive jurisdiction to entertain the matters in Schedule 5, where apart from other mattes, the suit pertaining to dower is also included in the schedule for the reason that matrimonial disputes of all kinds listed in the Schedule 5 by now are to be exclusively tried by Family Courts.

9. So far as the case referred to by the learned counsel for the appellant is concerned the same appears to be of the year 2001, while the case-law PLD 2006 Pesh. 189 referred by the learned counsel is of much relevance and fully applies to the facts of the present case. The principle laid down is that:

"The combined study of the preamble that of section 1 and section 5 of the Act including the above amendments, would show the Legislature clear intent that matrimonial disputes of all kinds specified/listed in the schedule by now are to be exclusively dealt with and tried by the Tribunal (Family Court) established and constituted under section 3 of the Act while jurisdiction of all other Courts, Tribunals including Civil Courts has been expressly ousted."

10. For the reasons listed above, I accept this appeal by setting aside the impugned judgment and decree and remand the case to the trial Court with the direction that the trial Court shall proceed further with the case in accordance with law. H. B. T./47/Sh.C. (AJ&K) Case remanded.