P L D 2004 Supreme Court 129 (PLP)

HAMID ALI MIRZA, J.

This civil petition for leave to appeal is directed against the judgment dated 5-11-2002 in I.C.A., No.77 of 2002 (Malik Ghulam Nabi Jilani v. Mst. Pirzada Jamila) passed by learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby .the said I.C.A. was dismissed affirming the judgment and decree dated 28-5-2002 passed by learned Judge in Chambers and - dated 30-10-2001 passed by learned Family Court Judge, Islamabad.

2. Brief facts of the case are that the respondent No. l/plaintiff filed suit for dissolution of marriage .on the ground of Khula' against the petitioner which suit was decreed vide judgment and decree dated 30-10-2001 by the Family Court Judge, Islamabad. The petitioner/defendant filed Writ Petition No.1470 of 2002 in the Lahore High Court, Rawalpindi Bench which was heard by learned Judge in Chambers and was dismissed as per judgment dated 28-5-2002. Against the said order the petitioner preferred Intra-Court Appeal No.77 of 2002 before the Lahore High Court, Rawalpindi which was dismissed in limine, hence this petition for leave to appeal.

3. Before deciding the petition on merits, an application C.M.A. No.2479 of 2003 for restoration of the main petition is put up for consideration. The petitioner submitted that due to grounds mentioned in the application, he could not appear before this Court on 20-10-2003. We, finding sufficient cause, have allowed this, application and the order dated 20-10-2003 is recalled. The petitioner submitted that he was ready to argue the main petition, therefore, we have heard the petitioner in person at length and learned counsel for the respondent No. l alongwith respondent No. 1, in person and perused the record minutely.

4. The main contention of the petitioner in person is that previous suit on the basis of Khula' was filed by the petitioner but the same was withdrawn wherein the respondent had made a statement that she had filed the said suit under coercion and pressure of her parents therefore, the said suit was withdrawn consequently the subsequent suit on the ground of Khula' was not maintainable. Learned counsel for respondent No. l has submitted that learned Division Bench, learned Judge in Chambers and the Family Court Judge have rightly decreed the suit of the respondent on the ground of Khula' and there was no misreading or non-reading of evidence and further that subsequent suit on the basis of Khula' was maintainable.

5. We find no substance and merit in the contention of the petitioner in person.

6. The learned Family Court Judge vide judgment dated 30-10-2001, after considering the evidence of respondent P. W. 1 and the petitioner'D.W.1 such documents Exh.D-1 to D-3, held that principle of res judicata with regard to plea of Khula' would not be applicable in the case of dissolution of marriage. It could give fresh cause of action to the respondent/wife to approach the Family Court in view of the fresh circumstances and subsequent events which could take place between the parties after the withdrawal of the previous suit. The learned Judge also held that condition in the Nikahnama restraining the respondent/wife from approaching the Court for Talaq on the ground of Khula' would not be a legal condition which cannot prevent the respondent/plaintiff for seeking dissolution on the ground of Khula' from the competent Court. The learned Family Court Judge also held that in view of the evidence on record it was not possible between the parties to live together within the limits of Almighty Allah. The findings of the Family Court Judge was affirmed by learned Judge in Chambers vide his judgment dated 28-5 -2002. The findings of the said two Courts were also affirmed by the learned Division Bench of the Lahore High Court in the impugned judgment.

7. No misreading or non-reading of evidence has been pointed out by the petitioner. The respondent who was present in person also stated in Court that she was not willing to reside with the petitioner as his wife and she had not filed the suit under pressure or coercion of her parents. She also stated that she has filed the suit of her own free-will in view of the subsequent event which took place between her and the petitioner which made her to file the subsequent suit against the petitioner. The subsequent suit for dissolution of marriage on the ground of Khula' would not be barred as in such cases recurring cause of action could accrue to the party. Reference may be made to (i) Dost Muhammad v. Mst. Maqsoodan Bibi PLD 1985 Lah. 340 and (ii) Amir v. Mst. Sughran and others 1991 CLC Note 225 at p.176.

8. We find no legal or factual infirmity in the impugned judgment considering that all the three Courts have given concurrent finding with regard to the right of respondents for seeking the dissolution of marriage on the ground of Khula' and further no substantial question of law of public importance is involved, therefore, leave to appeal is declined and the petition is dismissed. It may also be pointed out that this petition is barred by eighteen days for which no sufficient cause has been shown, therefore, on the said sole account the petition is also liable to be dismissed. M.H./G-201/S Petition dismissed.