2011 PLP 1531 (CLC)

SYED MANSOOR ALI SHAH, J.

Brief facts of the case are that the respondent filed a suit for declaration with permanent injunction, praying, inter alia, that the respondent be declared owner of the property in question in terms of Agreement dated 26-4-1992. During the pendency of the suit the petitioners moved an application under Order VII, Rule 10, C.P.C. on 6-5-2010 submitting that the subject-matter of the suit being recovery of dower, which falls within the exclusive jurisdiction of the Family Courts, therefore, the learned civil court has no jurisdiction to hear the suit. The said application of the petitioners was dismissed vide impugned order dated 20-9-2010. Petitioners have assailed the said order before this court.

2. Counsel for the petitioners contends that under section 5(1) of the Punjab Family Courts Act, 1964 the exclusive jurisdiction to entertain matters relating to recovery of dower lie with the Family Court and, therefore, the instant suit cannot proceed before the learned civil court of plenary jurisdiction.

3. Counsel for the respondent highlighting the conduct of the petitioners submits that the suit was filed on 22-9-2004 and the petitioners filed their written statement on 11-1-2005. The evidence of the respondent (plaintiff) in this case was concluded on 30-1-2010 and in spite of several opportunities, the petitioners have failed to lead evidence, as a result their right to lead evidence was closed on 20-2-2011. Review was filed against the said order by the petitioners, which was also dismissed on 24-2-2011. He further contends that the suit filed by the respondent was to seek a declaration that the mother of the petitioners had gifted the property in question in favour of the respondent through Agreement dated 26-4-1992 and is not a matter pertaining to dower.

4. Arguments heard, record perused.

5. The property in question has been gifted to the respondent by the mother of the petitioners in lieu of dower through an Igrar Nama Kabeen dated 26-4-1992. Kabeen Nama according to the Feroze-ul-Lughat1 means "document of dower". The contents of the Kabeen Nama state that id consideration of the marriage (prior to the marriage) between respondent and petitioner No.1, the mother of the petitioners i.e., Fazeelat Bibi, inter alia, gifted the property in question to the respondent in lieu of dower. 1. (New edition) - Ferozesons Ltd.,

6. From the above it is clear that Iqrar Nama Kabeen is a document of settlement of dower, in favour of the respondent. Additionally, respondent (as PW-1) in her cross-examination has admitted that the suit in question is for the recovery of her dower.

7. Under section 5 of the Punjab Family Courts Act, 1964, Family Court enjoys exclusive jurisdiction to try matters enumerated in the First Schedule. "Dower" being an item mentioned in the schedule the exclusive jurisdiction to entertain the present suit is with the Family Court. The jurisdiction vested in courts under special law (i.e., Punjab Family Courts Act, 1964) oust the plenary jurisdiction of civil courts. These jurisdictional boundaries have to be maintained and any proceedings before a forum lacking jurisdiction cannot be permitted to continue. Therefore, the proceedings before the learned civil court are coram non judice and void ab initio.

8. For the above reasons, impugned order of the learned Civil Judge, Lahore, dated 20-9-2010 passed on the application of the petitioners under Order VII, Rule 10, C.P.C. is, therefore, set aside. The application of the petitioners under Order VII, Rule 10, C.P.C. is allowed and the plaint is returned to the respondent to file the same before the Family Court of competent jurisdiction.

9. Before parting with judgment. It is observed that this court is pained to note that the suit of the respondent was filed in the year 2004 and is now being returned for lack of jurisdiction in the year 2011 after almost seven years. Had the learned civil court examined the plaint judiciously and diligently parties could have been put on proper course c seven years ago.

10. For the reasons given above this petition is allowed. M.A.K./S-109/L Petition allowed.