1989 PLP 1945 (MLD)

The respondent No.3 framed appropriate issues, the petitioner examined herself and her son Shamim Akhtar and Mst. Sughra Bibi. The respondent No.1 examined himself besides three witnesses namely Amir Hussain, Shaikh', Mohiuddin and Nazir Ahmad. The .respondent No. 3 dismissed the suit for maintenance and decreed the suit only in the sum of Rs. 5,

000. The petitions being aggrieved filed two separate appeals against the judgments of the Family Court. The respondent No. 2 decided Appeal No. 18 of 1986, whereby he decreed the petitioner's suit to the extend of the `iddat' period only whereas the other appeal filed by 'the petitioner was dismissed. The petitioner being aggrieved against judgment fled the above two petitions. Mr. Hafiz Abdul Baqi Advocate raised the following contentions:-- (1) The deposition of Nazir Ahmed does not figure in the judgment of the respondent No. 3. (2) the respondents Nos. 2 and 3 misread the evidence on record. (3) the judgments of respondent No. 3 as well as of respondent No. 2 are devoid of requirements of Order 20 Rules 4'and 5, CPC. On the other hand Mr. Samiuddin Sami learned counsel for the respondent No. i submitted that the judgments are according to law. There is sufficient evidence on the record. I have heard the learned counsel for the parties and perused the impugned judgments. The petitioner claimed maintenance from 1969. The respondent No. 1 pleaded in his written statement as well as deposed that the attitude of the petitioner with him was unfair and he was maltreated by her with the help of children, as such he divorced the petitioner as she was disobedient. He also `Aaq' his children. The respondent No. 3 dismissed the suit for maintenance. The respondent No. 2 found that the evidence led by the respondent No. 1 is sufficient enough to prove that the respondent No. 1 had reasons to leave the house and live at some other place. The respondent No. 2 held that the petitioner was not entitled to maintenance as claimed upto the date of divorce but he granted maintenance for the `Iddat' period. He decreed the suit for `Iddat' period at the rate of Rs. 500 per month. The respondent No. 3 decreed the suit for dower amounting to Rs. 5,

000. The petitioner filed appeal which was also dismissed by the respondent No.

2. The Courts below found that there was no documentary evidence showing that the dower was fixed at Rs. 30,000 plus 21 ginnis. The Courts below came to the conclusion that the dower was fixed at Rs. 5,000 which amount was paid to the petitioner. The question therefore, arises for consideration is whether the impugned judgments passed by the Courts below are without jurisdiction, without lawful authority, or have been passed in the absence of any material on record or misreading the evidence. Both the Courts below were of the view that the dower was fixed at Rs. 5,000 and the petitioner was not entitled to maintenance upto the date of divorce. The respondent No. 2 granted maintenance for the `Iddat' period at the rate of Rs. 500 per month. As held in the case of Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139), the expression in Article 199 (1) (a) (ii) of the Constitution of Pakistan without lawful authority and of no legal effect' is an expression of art and refers to the jurisdictional defects as distinguished from mere erroneous decisions whether on question of facts or even of law. The High Court in exercise of its constitutional jurisdiction is only concerned with the Court or Tribunal below has acted within its jurisdiction and if a Court or Tribunal having jurisdiction to decide matter, has decided the same wrongly or incorrectly, that will not render such decision as "without lawful authority". It has been held that it is wholly wrong to consider that constitutional provision is designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction merely because in its opinion the decision is wrong as in that case it would make the High Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal which plainly is not the intention of the constitution makers. Similarly in the case of Rahim Shah v. Chief Election Commissioner of Pakistan and another (PLD 1973 S C 24), it has been held that although the conditions for grant of writ which obtain in the English Courts did not apply to High Courts of Pakistan, at the same time the existence of constitutional jurisdiction cannot be enlarged to an appeal on facts of question law. An appeal is a creation of Statute and if no appeal is provided by the legislature the determination of a Tribunal of exclusive jurisdiction is final. The scope of interference by the High Court is, therefore, limited to the inquiry whether the Court or Tribunal has in passing order or in doing an act, acted in accordance with law. If the answer be in the affirmative, the High Court will stay its hands and will not substitute its own findings for the findings recorded by the Court or Tribunal. It has been held that the cases of no evidence, misdirection or failure to follow the judicial procedure are treated as acts done or orders passed without lawful authority, and vitiate the act done or proceedings undertaken by the Tribunal or order passed in this behalf. In the instant case the respondent No. 2 has observed very clearly that the real controversy between the petitioner and the respondent No.1 is over the plot in North Nazimabad, Karachi. The Court found that petitioner was entitled to maintenance for the `Iddat' period-at the rate of Rs. 500 per month and dowe amount was fixed at Rs. 5,000 and the respondent No. 1 had already paid the same to the petitioner. In view of the vehemence of the learned counsel for the petitioner, I have permitted him to take me through the entire evidence in these cases. There were overwhelming facts and circumstances to come to the conclusion that the petitioner was entitled to maintenance for `Iddat' period only and she was not entitled to any dower amount' as the same was paid to her. I entirely agree with the findings recorded by the Courts below. In my opinion there is no error of law or misreading of evidence as contended by the learned counsel for the petitioner. The learned counsel for the petitioner canvassed for re-appraisal of evidence in these cases. 1 am of the view that appraisal of evidence is the function of the family Court and the appellate Court and their findings reached on the basis of record, more particularly concurrent findings, are not open to be assailed even in a second appeal which has not been provided by law in such cases and constitutional jurisdiction is much more limited in its scope so that is not open to be exercised in absence of any illegality in its scope so that is not open to be exercised in absence of any illegality committed in the process of reaching findings of facts or any other error of jurisdiction committed by the Courts below. Neither of these two conditions has been made out in these cases, the one set of evidence was in the view of the litigant better than the other or mere omission to mention the name of the witness in the judgment, does not furnish a basis for sustaining a constitutional petition. For the aforesaid reasons, the impugned judgments are maintained and the Constitutional petitions are dismissed. In the circumstances of the case, the parties shall bear their own costs. H.B.T./K-142/K Petitions dismissed.