1989 PLP 905 (MLD)

‑‑‑S. 9‑‑West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.3‑‑Application for maintenance has to be filed before Union Council where wife was residing at the time of making her application. (e) Muslim Family Laws Ordinance (VIII of 1961)

‑‑‑Ss. 2(a) (b) & 9‑‑Constitution of Pakistan (1973), Art. 199‑‑Objection that order had been passed not by Arbitration Council, but by Chairman having not been raised earlier either in grounds of revision or at time of proceedings before Collector/Controlling Authority, could not be allowed to be raised for the first time during Constitutional proceedings. Sh. Naveed Sharyar for Petitioner. Bashir Khan for Respondent. Date of hearing: 31st January, 1989. This writ petition calls in question the order dated 15th of September, 1979 passed by the Arbitration Council, Gojra, District Sialkot and the revisional order of Collector/Controlling Authority, Sialkot dated 17th of April, 1982.

2. Briefly stated the relevant fads are that respondent Mst. Razia Begum was married to petitioner Muhammed Hussain Qadri on 12th of October, 1977. It appears that the parties fell apart with the result that on 13th of June, 1979, the respondent filed an application for grant of maintenance before the Chairman Arbitration Council, Gojra, District Sialkot. The parties were called upon to appoint their representatives. The petitioner appointed Muhammad Hanif and the respondent Rana Zia Ahmad as their Arbitrators. It appears from the record of the Arbitration Council that some proceedings were held by the Arbitration Council and the matter was adjourned to 15th of September, 1979. On this date, the representative of the respondent Rana Zia Ahmad was present but Muhammad Hanif, the nominated representative of the petitioner failed to attend the proceedings instead sent letter dated 26th of October, 1979 stating that the petitioner intended .to proceed for Haj and, therefore, some other date after the Haj may be fixed. The Chairman and the representative of the respondent, who was present did not grant this application, and instead proceeded to decide the application for maintenance filed by the respondent and directed that she be paid a sum of Rs.5W per month as maintenance and Rs.300 as pocket money, in all Rs.800 per month w.e.f. 16th of June, 1979. From the record it appears that the marriage of the parties was finally dissolved by the petitioner by pronouncing Talaq which became effective from 23‑9‑1981. The liability of the petitioner is thus confined to the period from 16‑6‑1979 to 23‑9‑1981. The petitioner aggrieved by the order of the Arbitration Council, went in revision before the Collector/Controlling Authority, Sialkot. This revision was partly accepted and the maintenance was reduced from Rs.8W month to Rs.500 per month. Dissatisfied with this order the petitioner has filed this constitutional petition.

3. The learned counsel for the petitioner has contended that the Chairman of the Union Council was not duly appointed in accordance with law and as such the proceedings held by him are coram non judice. I see no force in this contention of the learned counsel. A report was called for by this Court from the Chairman of the Union Council concerned, which, according to its report, appended an order of his appointment as a Chairman of the Union Council concerned dated 7‑1‑1978 passed by the Deputy Commissioner. This appointment was made in the exercise of power conferred by section 2(b) of the Muslim Family Laws Ordinance (VII) of 1961 in terms of which the Deputy Commissioner had been authorised by the Provincial Government vide its notification No.SO.X(15)/75 dated 23‑7‑1977 to appoint Chairman for the Arbitration Council. Reading of section 2(b) of the Ordinance shows that the Chairman can be appointed either by the Provincial Government or any person authorised by it in this behalf. No valid exception can, therefore, be taken to the appointment of the Chairman. Even otherwise the petitioner by his own conduct is estopped from raising this plea. In pursuance of the notice issued by the Chairman he submitted to his jurisdiction, appointed his representative and had been appearing before the Chairman without any protest. The petitioner cannot, therefore, be permitted to invoke the discretionary jurisdiction of this Court in this behalf.

4. The next contention of the learned counsel for the petitioner, was, that the petitioner had not been given an adequate opportunity of being heard. This grievance of the learned counsel, is, not well‑founded. It is apparent from the perusal of the record of the Arbitration Council as also the impugned order itself that the petitioner was allowed sufficient opportunity in this behalf and the case had been adjourned to 15th of September, 1979 on the understanding that it would conclude on that date. Unfortunately neither the petitioner nor his representative was present and they chose to stay away. It is not the case of the petitioner that he had proceeded to Haj at the time when the impugned order was passed. On the other hand, from the application submitted by his representative dated 26th of August, 1979, it is apparent that he intended to E proceed for Haj. This was hardly a justification for not appearing before the Arbitration Council. Similarly, no explanation as to why the representative did not attend the proceedings, is forthcoming on the record. It cannot, therefore, be said that no opportunity was allowed to the petitioner of being heard. The learned counsel in this respect has relied upon Mukhtar Ahmad v. Muzaffar Qadir and others P L D 1978 Lah. 232 which has no applicability to the present case. In the precedent case, the petitioner was a soldier in the Pakistan Army stationed at Multan. His nominated Arbitrator had withdrawn from the arbitration and a notice was ordered to be issued to him. In these circumstances it was held by the Court that since the arbitration Council itself had accepted the withdrawal of the nominated Arbitrator, and a fresh notice was ordered to be served upon the petitioner, he could not have been proceeded against ex parte without the service of such a notice. Here there was no withdrawal by the Arbitrator from the proceedings, who, on the other hand wanted an adjournment. The petitioner himself was aware of the date of hearing. If the petitioner and his Arbitrator chose to stay away from the proceedings no grievance can be raised in this behalf.

5. It was further contended by the learned counsel that the Arbitration Council, Gojra, Tehsil Daska, lacked territorial jurisdiction inasmuch as the respondent No.1, Mst. Razia Begum was not a resident of the said Union Council. The learned counsel in this respect has relied upon an affidavit dated 20th April, 1980 filed by the brother of Mst. Razia Begum before the Collector during the course of revisional proceedings. No such objection appears to have been raised either before the Arbitration Council or before the Revisional Authority. It is too late in the day for the petitioner to raise an objection as to the territorial jurisdiction for the first time before this Court. Even otherwise it is clear from the record that in the matter of Talaq the petitioner himself had invoked the jurisdiction of the same Union Council and it, therefore does not lie in his mouth to say that it had no jurisdiction. According to rule 3 of the West Pakistan Rules under the Muslim Family Laws Ordinance the application for maintenance is to be filed before the Union Council in which the wife is residing at the time of making her application. There is, therefore, hardly any force in this objection of the learned counsel.

6. It was lastly contended by the learned counsel that the impugned order has been passed not by the Arbitration Council but by the Chairman. This objection was never raised either in the grounds of revision or at the time of proceedings before the Collector/Controlling Authority. I am not inclined to allow the petitioner to raise it for the first time during these proceedings. Even otherwise, from the perusal of the order it is clear that it was being passed not by the Chairman alone but by the Council which has been duly constituted. The representative of the respondent was also present and had joined in deliberation and also was a party to the said order. The learned counsel for the respondent has also pointed out that the petitioner has made a misstatement in his petition to the effect that the suit for restitution of conjugal rights had been decreed by the Judge Family Court on 13th of September, 1980. According to the learned counsel, this assertion is false inasmuch as the ex parte decree had been set aside in the year 1979 and the said suit had been dismissed. Though a copy of the judgment and decree of the Judge Family Court is not available, yet the learned counsel has drawn my attention to the certified copy of index R‑1 of the said suit which shows that the suit was in fact dismissed. The respondent had applied for the grant of certified copy, but vide Exh.R‑2 it was reported by the Copying Agency that the file was not available. For this reason also, the petitioner does not appear to be entitled to the exercise of any discretionary relief m his favour. For the foregoing reasons this writ petition has no force and is dismissed with no order as to costs. H.B.T./M‑1155/L Petition dismissed.