1998 PLP 972 (CLC)

By this Constitutional petition order passed by Judge Family Court, Rahimyar Khan, dated 23‑4‑1996 has been assailed, whereby he accepted the application moved by respondent No.2.

2. Briefly stated the facts are that the petitioner filed a suit for restitution of conjugal rights on 19‑5‑1994 against respondent No.2, who filed a suit for jactitation of marriage against the present petitioner on 26‑10‑1994. Both the suits were consolidated and the evidence was brought on file. However, on 3‑12‑1995 the present petitioner filed a suit for jactitation of marriage and on 11‑2‑1996 withdrew his suit for restitution of conjugal rights. On 26‑2‑1996 respondent No.2 moved an application that her suit be decided on the basis of evidence which had already come on record in the previous consolidated suits of the parties. This application was resisted by the present petitioner. However, the Trial Court accepted the same vide order impugned in this Constitutional writ petition.

3. The contention of the learned counsel for the petitioner is, that respondent No.2 cannot ask the Trial Court to decide her suit on the basis of evidence which had been brought on record, in a suit which stands with drawn by him on 11‑2‑1996 as it will be presumed that no evidence exists on record. That the Trial Court cannot decide the suit of respondent No.2 without allowing him to produce fresh evidence in support of his suit for restitution of conjugal rights.

4. Conversely, it is submitted by the learned counsel for respondent No.2, that as both the suits for restitution of conjugal rights and for jactitation of marriage were consolidated and evidence was brought on record, so the evidence produced in that suit on behalf of the present petitioner, can be relied upon and present suits can be decided on that evidence. He next contends that as the evidence of the petitioner was recorded in the consolidated suits, out of which suit of respondent No.2 is still in the field, so, the respondent No.2 can ask the Court to decide her suit on the basis of previous evidence.

5. It is evident from the facts narrated above that initially petitioner filed a suit for restitution of conjugal rights, whereas respondent No.2 filed a suit for jactitation of marriage. Both the suits were consolidated and the evidence was recorded in the suit filed by the present petitioner, being prior in time. Lateron the petitioner filed suit for jactitation of marriage on 3‑12‑1995 and withdrew his previous suit for restitution of conjugal rights on 11‑2‑1996. Now there are two suits of jactitation of marriage in the field and respondent No.2 wants that A the evidence of the petitioner which he brought on record in suit for restitution of conjugal rights be considered for deciding her suit for jactitation of marriage There is no logic in this contention of respondent No.2, as evidence adduced by the petitioner in a suit for restitution of conjugal rights cannot be read in a suit for jactitation of marriage filed by the petitioner. Undoubtedly, respondent No. 2 wants to rely upon evidence of petitioner recorded in the previous suit for deriving some benefit.

6. No doubt, she has every right to claim benefit arising out of that evidence, provided she adopts the right course for that. She can get benefit out of that evidence by bringing it on the record of her suit through proper procedure.

7. A Court cannot strip of any party from his inalienable right of adducing evidence in support of his claim and to decide a suit on the basis of evidence already brought on record in a suit of different nature, and which stands with drawn. Thus, the order of Trial Court, dated 23‑4‑1996 is patently illegal, void ab initio and is liable to be struck down. Accordingly, writ petition is accepted and impugned order, dated 23‑4‑1996 is set aside. The Trial Court is directed to afford reasonable opportunity to the parties to produce their evidence in support of their respective stands and decide the suit within three months, under intimation to this Court. A.A./G‑75/L Petition accepted