1997 PLP 74 (MLD)

Ghulam Shabbir petitioner was married' to Mst. Aziz Mai respondent No.2. Unfortunately the relations between the spouses became strained. Mst Aziz Mai respondent No.2/plaintiff instituted her suit to obtain a decree for the dissolution of marriage which was resisted by the petitioner defendant. The grounds of attack and the defence of the parties stand projected from the issues being reproduced infra:‑‑ ISSUES: (1) Whether the defendant treated the plaintiff with habitual cruelty? O. P. P. (2) Whether the defendant levelled false charge of adultery against the plaintiff? O.P.P. (3) Whether the defendant failed to maintain the plaintiff? O.P.P. (4) Whether the plaintiff has developed intense hatred against the defendant? O.P.P. (5) Whether the plaintiff has no cause of action or locus standi to file this suit? O.P.D. (6) Whether the plaintiff is estopped to file this suit? O.P.D. (7) Whether the plaintiff is entitled to a decree of dissolution of marriage on the basis of Khula'? If so, on what terms and conditions? O.P,P. (8) Relief.

2. The parties produced their evidence. Learned trial Court granted respondent No.2 Khula' divorce and also burdened Ghulam Shabbir petitioner with compensatory costs in the sum of Rs.15,

000. Feeling aggrieved the petitioner‑defendant has filed this writ petition.

3. Since the amount of costs in the sum of Rs.15,000 was granted to respondent/plaintiff in whose favour the decree was also passed I obtained the report from Mr. Hameed Jillani, Senior Civil Judge/Judge Family Court; Layyah as to under which provision of law he has imposed the aforesaid penalty of special costs of Rs.15,000 upon the writ petitioner Ghulam Shabbir defendant. He has sent report vide his office letter No.42 dated 15‑2‑1996 directly addressed to the Deputy Registrar, Lahore High Court, Multan Bench, Multan wherein he has made the futile attempt to justify his order. In this regard suffice it to express that the compensatory costs can be awarded to defendant under section 35‑A, Civil Procedure Code against whom a false and vexatious suit is instituted by the plaintiff. In whole of the frame of the Procedural Law in the matter there is no provision to justify the order of the instant kind wherein a plaintiff can be granted the compensatory costs at the time of the grant of decree to him/her. In the report sent by the Senior Civil Judge, Layyah reliance‑has been placed on Muhammad Saleem etc. v. D.C.O. etc. 1994 MLD 295 to justify the aforesaid part of the impugned judgment and decree. I am afraid that the said case‑law is not applicable to the instant matter because it is specifically mentioned therein that a plaintiff dragging the defendant in protracted litigation without rhyme or reason and putting him to unnecessary financial loss, mental torture and agony would be liable for payment of compensatory costs to the defendant. He has also mentioned Muhammad Hussain v. Muhammad Iqbal 1995 MLD 1319 wherein it has been mentioned that the Appellate Court while dismissing the suit is not empowered to award special costs under section 35‑A, Civil Procedure Code in view of bar provided under proviso to Rule 33, Order 41, Civil Procedure Code. Thus both the rulings are not attracted in the matter. As such the stand taken by the trial Court is simply‑unjustified and his working in the matter can well be termed to be perfunctory. He should avoid such a working. Even learned counsel for respondent No.2 has no objection if to the extent of the aforesaid part the impugned judgment and decree is set aside. I am tempted to express at this stage that while granting the Khula' divorce the wife has to return the benefits received by her from the husband and it is simply astonishing that she has been granted the compensatory costs. This is one aspect of the matter.

4. I would like to express another aspect of the matter in hand. The Senior Civil Judge/Judge Family Court, Layyah has addressed Letter No.42 dated 15‑2‑1996 directly to the Deputy Registrar, Lahore High Court, Multan Bench, Multan in violation of the provisions of Chapter 19‑A of the High Court Rules and Orders, Volume IV relating to the decorum of "Correspondence" according to which all the correspondence has to be routed through the District and Sessions Judge. This is a part of the discipline of the judicial hierarchy and it should not be ignored/violated. In this regard the District and Sessions Judge, Layyah should have a watch upon his subordinates on the administrative side.

4. At this stage learned counsel for the petitioner has expressed that due to the deletion of the imposition of the amount of Rs.15,000 as costs he would not like to press the writ petition on the factual aspects of the dispute on merits between the parties and he withdraws the same to that extent. It means that the decree for dissolution of marriage on the basis of Khula' has to be sustained.

5. For what has been said above, to the extent of grant of Khula' divorce to Mst. Aziz Mai respondent No.2 the writ petition is dismissed as withdrawn leaving the parties to bear their own costs throughout. However, the petitioner is not liable to pay the amount of Rs.15,

000. N.H.Q./G‑2/L ???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.