2009 PLP 1037 (SCMR)

SHEIKH HAKIM ALI, J.

The instant civil petition has been filed to challenge the order dated 17-9-2008, passed by the learned Judge in Chamber of the Lahore High Court, Lahore, in Writ Petition No.5091 of 2008 Zulfiqar Ali v. Mst. Shazia Bibi and others, by which writ - petition filed by petitioner, was dismissed on 17-9-2008 and the order of Nazim/Chairman, Arbitration Council, Union Council No.63-Kamahan, Nishter Town, Lahore Cantt. issuing the certificate on 15-5-2007 of granting maintenance, to Mst. Shazia Bibi against Zulfiqar Ali, present petitioner, and maintaining the said order dated 15-5-2007 in revision by D.O.(R), Lahore on 24-4-2008, was upheld.

2. Facts in brief, are that Mst. Shazia Bibi, respondent was married to Zulfiqar Ali on 3-4-1999, out of which wedlock, two sons i.e. Afaq Ahmed, Afzal Ahmed and one daughter, Iqra Zulfiqar were born. Unfortunately, this marriage bond could not continue and divorce was pronounced by petitioner on 15-3-2007, when the suit for grant of maintenance filed by Shazia Bibi along the above noted children, was pending before the learned Judge, Family Court, Lahore instituted on 22-5-2006. During the pendency of that suit for grant of maintenance, Mst. Shazia Bibi, filed an application for grant of maintenance before respondent No.2, namely, Malik Asif, Nazim, Union Council as Chairman Arbitration Council, Kamahan, Lahore on 16-11-2006. The requisite Certificate was issued on 15-5-2007 by respondent No.2 in favour of Shazia Bibi, awarding her Rs.5000 per month as maintenance allowance from the date of marriage i.e. 3-4-1999 onward, to her as against the writ petitioner. The order dated 15-5-2007 was challenged by petitioner before the learned D.O.(R), Lahore through revision petition, who proceeded to uphold the maintenance allowance as ordered by the Chairman Union Council by rejecting the revision on 26-4-2008. Aggrieved from that order, Writ Petition No.5091 of 2008 noted above was filed by Zulfiqar Ali, which was dismissed on 17-9-2008. Hence this petition.

3. Petitioner's learned counsel submits that during pendency of the suit for grant of maintenance instituted by Mst. Shazia Bibi before the learned Judge, Family Court, Lahore, an application under section 9(2) of the Muslim Family Laws 1961, was filed by her before the Chairman Arbitration Council, which could not be filed by Mst. Shazia Bibi for the same grievance, cause and relief before the Nazim/Chairman, Arbitration Council and no proceedings could be commenced by the aforesaid Chairman, Arbitration Council in the presence of pendency of the suit for maintenance before the learned Judge, Family Court, Lahore, who had got exclusive jurisdiction to adjudicate in accordance with the provision of West Pakistan Family Courts Act, 1964. The grant of certificate awarding maintenance from 3-44999 (in certificate 1-5-1999 for an indefinite period at the rate of Rs.5000 per month was illegal and unlawful, as the marriage bond had already been broken, admittedly, after the divorce was pronounced on 15-3-2007. For the past maintenance, Mst. Shazia Bibi was not entitled because it was not proved on the record that while residing in the house of petitioner during the period of subsistence of marriage, she was not being maintained by the petitioner. The validity of constitution of Arbitration Council was also challenged by petitioner's learned counsel. However, the learned counsel appearing on behalf of respondent No.1 has supported the impugned judgment by this arguments.

4. We have considered the arguments with our anxious thoughts to it and have perused the record. No doubt, the Arbitration Council has got power to award maintenance to a wife under section 9(2) of the Muslim Family Laws, 1961, yet it cannot be considered just and fair that parallel proceedings for the same cause and relief should be allowed simultaneously to the lady respondent. Mst. Shazia Bibi, who had instituted the suit for maintenance for herself and on behalf of her minor children before the learned Judge, Family Court, prior to the filing of the application. In the above circumstances, she could not be permitted to file an application for grant of maintenance under section 9(2) of the Muslim Family Laws, 1961 before the Chairman, Arbitration Council, as both these proceedings cannot be allowed to proceed for the same prayer and relief, at one and the same time in two forums because these are to result into two contradictory and inconsistent decisions. Mst. Shazia Bibi having filed the suit prior in time before the learned Judge, Family Court, petition under section 9(2) of the Muslim Family Laws, 1961, before the Chairman Arbitration Council was not competent, as she had already resorted to the remedy of the exclusive jurisdiction of learned Family Court.

5. We have also found that the certificate issued by Chairman, Arbitration Council on 15-5-2007 has been issued in a mechanical way, without noticing that Zulfiqar Ali had already divorced Mst. Shazia Bibi on 15-3-2007. The tenor of the Certificate issued was displaying that Mst. Shazia Bibi was granted maintenance at the rate of Rs.5000 from 1st May of 1999 onwards, without its point of culmination, which could not be awarded to a divorced wife.

6. Even the grant of maintenance from 1-5-1999 was illegal, as there was no proof that Mst. Shazia Bibi was not being maintained by petitioner during this period, particularly when the children were also c born from this marital tie. As she had not claimed maintenance and no protest was made by her during that period prior to it nor any evidence to that effect was brought and provide on the record, so, we could not approve this grant through the impugned certificate.

7. The grant of maintenance for a period of more than three years was also illegal and unlawful as the Arbitration Council had no jurisdiction, power or authority to grant maintenance against the Law of Limitation. Vide Controlling Authority/Collector, Sialkot v. Chairman, Arbitration Council and others 1989 MLD 145 and Muhammad Nawaz v. Mst. Khurshid Begum and 3 others PLD 1972 SC 302 for that purpose.

8. The constitution of Arbitration Council has not been shown to have been made in accordance with law. The order and certificate issued by Nazim/Chairman, Union Council, was not issued by a validly constituted Arbitration Council as no representative was got appointed from Zulfiqar Ali, petitioner. Nothing was brought on the record that petitioner was issued a notice under subsection (1) of section 7 of West Pakistan Rules, under Muslim Family Laws, 1961, calling upon him to nominate his representative and that the petitioner had refused or failed to nominate such representative. From the above narration, it is evident that Arbitration Council was not a properly and validly constituted council.

9. Keeping in view the above discussion, we cannot permit the impugned order to remain in the field. So, we convert the civil petition into appeal and allow it by setting aside the impugned order dated 17-9-2008, passed by the Lahore High Court, Lahore, in writ petition No.5091 of 2008, which has upheld the order dated 26-4-2008 of D.O.(R) Lahore, and the certificate of maintenance issued by Nazim/Chairman, Arbitration Council on 15-5-2007, mentioned above. However, Mst. Shazia Bibi, respondent, shall not be prejudiced in her case pending before the learned Judge, Family Court for grant of maintenance by any observation made in this order, which suit shall be decided as early as possible preferably within a period of three months from the date of receipt of order of this Court by the learned Judge, Family Court. M.B.A./Z-1/SC Appeal allowed.