P L D 2003 Supreme Court 128 (PLP)

Miss Hina Jillani, Advocate Supreme Court for Respondent No. 1 (in person). Respondent No.2: Ex parte. Date of hearing: 18th November, 2002. KARAMAT NAZIR BHANDARI, J.‑‑‑Respondent No.1, Mst. Manzooran Bibi alias Shahida Parveen was married to Javed Iqbal, appellant No.2 on 25‑5‑1982. On the ground that Mst. Manzooran Bibi alias Shahida Parveen was unable to bear a child, appellant No.2 (husband) sought her permission to contract second marriage. This permission was granted on the condition that the husband will continue to pay a sum of Rs.500 per month as maintenance and also transfer one residential room and one shop part of the house, belonging to appellants. The parties entered into an agreement dated 31‑3‑1987 incorporating the above terms. On the basis of the permission granted by Mst. Manzooran Bibi alias Shahida Perveen, Javed Iqbal was able to obtain a certificate from the Arbitration Council entitling him to have a second wife. Javed Iqbal appellant No.2 thereafter entered into second marriage. As is asserted by Manzooran Bibi, to her bad luck, appellant No. 2 did not fulfil his promise and instead divorced her on 18‑8‑1992. It is claimed that in divorce proceedings, Muhammad Ishaque, appellant No. 1 and father of Javed Iqbal made a statement on 15‑8‑1992 affirming that he has transferred the residential room and a shop in favour of Mst. Manzooran Bibi. He also volunteered that whenever Mst. Manzooran Bibi wants he will execute the sale‑deed. The promise having not been fulfilled, Mst. Manzooran and her father sued Javed Iqbal (the husband) and Muhammad Ishaque (his father), the appellant No. 1 for specific performance of their agreement. The suit was tried and dismissed on 19‑7‑1993 by the trial Court. The dismissal was upheld on appeal by the Additional District Judge, Gujranwala on 16‑3‑1995. Both the Courts took the view that the agreement was not enforceable as there was no consideration and further the same was violative of section 27 of the Contract Act No‑IX of 1872 (hereinafter to be referred as the Act'). On revision by the plaintiffs respondents, the High Court took the view that the grant of permission to marry was valid consideration for the agreement to transfer the specified property. The dismissal of suit was set aside and the same was decreed.

2. Leave to appeal was granted to the defendants on 9‑7‑1998 to consider the plea that the High Court has set aside the concurrent findings of facts based on appraisal of evidence by the two Courts below, without indicating as to whether there has been any misreading or non‑reading of the evidence.

3. In support of the appeal, the same argument has been repeated. It is urged that in exercise of revisional jurisdiction the High Court cannot set aside or modify a finding of fact without recording the misreading or disregard of the evidence by the trial Court and 1st Appellate Court. On the other hand, learned counsel for respondents‑plaintiffs has supported the judgment of the High Court by pointing out that in fact the High Court has decided a question of law and not of a fact. He has urged that the execution of agreement (Exh.P1) was never seriously disputed and that the High Court has proceeded to apply the law on the established facts.

4. The examination of' the impugned judgment shows that the High Court has found that the agreement (Exh.P1), cannot he said to be without consideration, in the facts and circumstances of the case. It has also held that the provision of section 27 of the Act gave way to the provision of section 3 of the Muslim Family Laws Ordinance, 1961 (hereinafter to be referred as 'Ordinance') which provides that the Ordinance shall have overriding effect, notwithstanding the provision of any law to the contrary. We are in agreement with the view taken by the High Court. We however may add that section 27 of the Act does not seem to be attracted to the facts and circumstances of the case Section 27 reads:‑‑‑ "Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void." By agreement (Exh. P1) appellants have not been restrained from carrying on any business or profession or trade. On the other hand, it is the provision of the Ordinance which places a restraint on the right of the husband to enter into an additional marriage during the subsistence of the earlier marriage. The restraint is that the husband will enter into second/additional marriage with the permission of the existing wife or in case of denial, with the permission of Arbitration Council. This provision cannot be said to be in conflict with provision of section 27 of the Act. In any case, even on the premises that there is conflict, it is the provision of Ordinance which has to prevail. This is the mandate of section f of Ordinance which reads:‑‑‑ "The provisions of this Ordinance shall have effect notwithstanding any law, customs or usage and the registration of Muslim marriage shall take place only in accordance with those provisions."

5. We have no hesitation in holding; that the High Court has rightly interfered in the exercise of its revisional jurisdiction as conferred by section 115 of the Code of Civil Procedure, 1908. The trial Court as well the 1st Appellate Court had dismissed the suit on the wrong understanding of law that the agreement (Exh.P1) was without consideration or was violative of section 27 of the Act.

6. This appeal is found to be without merit and is hereby dismissed with costs. M.B.A./M‑723/S Appeal dismissed.