P L D 1985 Quetta 268 (PLP)

This second appeal is directed against the judgment and decree dated 8-11-1984 passed by the Majlis-e-Shoora, Quetta Division whereby on appeal filed-by the respondent Mst. Hooro daughter of Badin the judgment and decree for restitution of conjugal rights passed by Qazi Dalbandin against her and in favour of appellant Hazar Khan has been reversed and the suit for restitution of conjugal rights by the appellant has been dismissed.

2. The facts relevant for the determination of this appeal are simple. A suit was filed by the appellant Mirza Khan on or about 24-3-1984 in the Court of Qazi Dalbandin for the restitution of conjugal rights and it was averred in the suit that the plaintiff was married, to Mst. Hooro some ten years back and in exhange the sister of the plaintiff was married to the brother of Mst. Hooro. The husband of her sister has died about 7 years back and the widow had been remarried by the plaintiff. Since Mst. Hooro refused to live with him a decree for restitution of conjugal rights was claimed by him. In written statement filed on behalf of Mst. Hooro the respondent herein it was asserted that her marriage was solemnized about 25 years ago. Since she had filed a suit for maintenance earlier in order to avoid the maintenance the subsequent suit for conjugal rights has been filed as a counter-blast. It was also contended that since there were allegations against her and her relations, besides she was deserted by the husband and he has married another woman the restitution was not justified in law and if so ordered it may even result in her murder by the husband. In such circumstances she was entitled to separate maintenance and on that ground that suit for restitution of conjugal rights was resisted.

3. The learned Qazi decreed the suit on 17-4-1985 but the same has been reversed by the Majlis-e-Shoora Quetta Division vide the impugned judgment and decree passed on 8-11-1984. It is unnecessary to mention the evidence led by the parties or the grounds which prevailed with the learned Members of the Majlis-e-Shoora for the reversal of the decree passed by the Qazi. As an objection about the maintainability of this second appeal has been raised by the office and also by the respondent which goes to the very root of the matter it is desirable that it should be attended to.

4. Mr. S. M. Nazeer Durrani the learned counsel for the appellant maintains that the second appeal in the instant case does lie in view of section 4 read with section 3 of the Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 and has also urged the following grounds before me : (a) The Family Courts Act, 1964 stands enforced in the tribal Areas on Baluchistan by virtue of an amendment wade in the Family Courts Act, 1964 through Adaptation of Laws P L D 1975 Central Statute 290 as the provision contained in subsection (2) of the family Courts Act, 1964 which previously was a bar to the applicability of the Act to the tribal Area teas been amended and the word "Pakistan has been substituted therefore. The proceedings taken by the Courts constituted under the Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 become void and of no legal effect. And as such the judgment and Decree passed by the Majlis-e-Shoora against the appellant stands vitiated. (b) The second appeal is maintainable in view of section 4 read with section 3 of Regulation of 1976 referred above, the subject-matter of the suit filed by the appellant being a Family matter is not subject to tae provisions of Court Fees Act, 1870 read with Suit Valuation Act, 1897.

5. The contention of the learned counsel for the appellant that the Family Courts Act, 1964 is applicable in the instant case and Qazi and Majlis-e-Snoora have no jurisdiction seems to possess the merit of novelty but if closely examined is destructive of his own case and cuts the very legs the appellant intends to stand upon. It is the appellant who had approached the Qazi for the grant of the decree and was even successful in getting the same. He has participated in the proceedings before the Majlis-e-Shoora in appeal. Now it does not behove him to raise this objection. It cuts the very root of his case. But since it has been maintained by the learned counsel I have to decide the same. The contention of the learned counsel looses sight of the provisions of Article 247 of the Constitution of tae Islamic republic of Pakistan. By virtue of Article 247 (3) of one Constitution no Act of Parliament is applicable to any Federally Administered Tribal area or any part thereof unless the President so directs and no Act of Parliament or any Provincial Assembly shall apply to the Provincially Administered Tribal Area or to any part thereof, unless the Governor of the province in which the Tribal Area is situate, with the approval of the President, so directs; Dalbandin admittedly comes in the Tribal Area of Baluchistan as mentioned in Article 246 (b) (ii) of the Constitution. Identical provisions were there in the late Constitutions of 1956 and. 1902. I have, therefore,, no hesitation in repelling the contention of the learned counsel and hold that the Family Courts Act, 1964 was not applied to the Tribal Areas of Baluchistan. Up the year 1976 the Civil Disputes in the Tribal Area of Baluchistan used to be decided under the Frontier Crimes Regulation popularly known as F. C. R. but Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 hereinafter referred to as the Regulation was promulgated for the trial of civil disputes arising in the Tribal areas and this Regulation fulfils the requirements of Article 247(3) of the Constitution, 1973 having been made by the Governor of Baluchistan with the prior approval of the President, and this Regulation creates Courts where the suits have to be filed and adjudicated. The Court of Qazi is a Court of limited pecuniary civil jurisdiction, while the Majlis-e-Shoora has appellate as well as original civil jurisdiction beyond a certain pecuniary limit of Rs. 50,000 thus the Majlis-e-Shoora is the first appellate Court from judgments, decrees and orders of the Court of Qazi and thereafter the appeal lies to the High Court. It would be useful to reproduce the provisions of section 4 of the Regulation which deals with Courts and adjudication of Civil Disputes : "

4. Courts for adjudication of disputes under this Regulation -Not, withstanding anything contained in section 3, there shall be the following Courts, namely :- (a) the Court of Qazi, which shall be the Court of original jurisdiction in respect of disputes wherein the subject-matter in amount of value does not exceed fifty thousand rupees ; and (b) the Majlis-e-Shoora, which shall be the first appellate Court in respect of judgments, decrees and orders of Court of Qazi and shall also be the Court of original jurisdiction in respect of all disputes wherein the subject-matter in amount or value exceeds fifty thousand rupees. (2) Every Majlis-e-Shoora shall be deemed to be a District Court within the meaning of the Code. (3) An appeal from a judgment, decree or order of the Majlis-e-Shoora shall lie to the High Court." As provided in clause (b) of section 4 of the Regulation Majlis-e-Shoora is the first appellate Court whereas subsection (3) deals with the appeal from the judgments and decrees of Majlis-e-Shoora. The judgment and decree can be on the original side of the Msjlis-e-Shoora or the appellate side. Section 4 contains provisions for first appeal as well as second appeal to the High Court. And by virtue of section 3 of the Regulation the Code of Civil Procedure, 1908, the Evidence Act and the i imitation Act, 1908 shall mutatis mutandis apply to the proceedings under the Regulation. The proceedings under the Regulation are therefore to be regulated and controlled by the provisions of the Code of Civil Procedure. The operation of the provisions of Regulation in the matters of appeal thus becomes subservient to the Code, and but for the provision contained in section 3 of the Regulation every judgment and decree would have been appealable to the High Court. And by force of section 3 of the Regulation in the matters of second appeals under the Regulation the provisions of sections 100, 101 and 102 of the Code of Civil Procedure would apply. The second appeal therefore would only lie on any of the grounds mentioned in section 100, C. P. C. if not barred under section 102 thereof. Section 102 bars the second appeal in matters where the amount or value of the subject-matter of the original suit does not exceed fifty thousand rupees as the section stands now P L D 1983 Quetta

42. Under the Rules made by the High Court the value of the subject-matter of the suits for conjugal rights has been determined for the purpose of jurisdiction as rupees one thousand. The appellant himself has determined the value at Rs. 100 only in the memorandum of appeal. The second appeal therefore would be barred. The objection of the office is, therefore, sustained and it is held that this second appeal is not competent under law and is dismissed accordingly with no order as to costs. I, however, place on record my appreciations for the industry exhibited by Mr. Nazeer Durrani Advocate in the arguments before me. M. B. A. Appeal dismissed.