2009 PLP 1536 (YLR)

JAMILA JAHANOOR ASLAM, J.

The petitioner has assailed judgments/ decrees dated 2-6-2008 of the Family Court, Rawalpindi, and that of the Additional District Judge, Rawalpindi, dated 15-9-2008.

2. His grounds in the writ petition are that both the Courts below have erred in law when deciding the suit for recovery of dowry articles filed by the petitioner, the impugned judgments/decrees are the result of mis-reading and non-reading of the documentary evidence of the proceedings before the Superior Court of Justice, Ontario Canada; the non-reading of the order dated 17-8-2006 passed by the Court in Canada, and that the orders have failed to honour the law due to mala fides, ex facie and sinister designs.

3. He has relied on 1986 SCMR

728. At the very onset I would like to clarify that the ruling is not all 'attracted to the Writ Petition in hand. The quoted ruling addresses a totally different set of facts to those that have been addressed in present Writ Petition.

4. On the other hand the Counsel for the respondents has argued vehemently that, to start with the suit of the petitioner was not maintainable as it is barred by section 17 of the Family Courts Act, 1964 read with section 11 of the C.P.C. He states that the matter has already been decided by a Court of competent jurisdiction in Canada and the matter cannot be agitated again before the Courts in Pakistan. He has relied on 2007 MLD 1692; 2007 MLD 1710; 1974 SCMR 139.

5. The petitioner and respondent No.1 had surrendered to the jurisdiction of the Court in Canada and the orders passed there are not ambiguous in any sense Para 2 of the Canadian judgment is reproduced herein (quote) "Once the said amount is paid, the applicant, Aysha Sabir shall not make any further claim against the respondent Fida-ul-Haq in Canada, in relation to any issues arising from this marriage, including but not limited to spousal support, equalization and return of jewelry, even if there is a material change of circumstances, which at this time is unforeseeable" (unquote).

6. Thereafter it was to be determined by the Courts below as to what the petitioner claimed in her suit in Canada. The jewelry claimed, apropos record of the suit filed in Canada, under the Claim Form, in Clause 50 it is stated in no uncertain terms (Quote) "Return of the Applicant's documents and her gold jewelry given as a dowry by her family or gifted by the respondent's family" (Unquote). The value of this jewelry was fixed at Candian $ 20,

000. Thus it amounts to her claiming all her jewellery. She did produce a document, ostensibly from the Court in Canada qua her being allowed to claim the return of her jewellery in Pakistan. However, she could not prove the authority of the document she produced whereas on the other hand she admitted the veracity of the documents produced by respondents Nos.1 and 2 during the evidence at the Trial Court level. Thus in effect she has claimed all her jewellery in Canada along with spousal support and she was granted the same to the tune of 11,000 Canadian dollars. All her claims were settled. This point has been addressed judiciously by both the Courts below.

7. It would also be apt to point out at this juncture that the petitioner's case is full of dichotomies regarding the amount of jewellery being claimed by her. She has put up three different claims, so to speak, in three different instances. She claims a certain amount in her plaint, then the total amount of jewellery in Canada and now in present Writ Petition it is different. This does not inspire much confidence about her credibility. On the basis of this it is proved that there has been no misreading or non-reading of evidence by the lower Courts.

8. The main question to be addressed herein was as to whether the claim of petitioner is hit by section 17 read with section 11, C.P.C. Section of the Family Courts Act, 1964 pertains to sections 10 and 11 of the C.P.C. which are not barred by the Family Courts Act, 1964. Apart from these two sections the provisions of the C.P.C. are barred by the Family Courts Act, 1964, although the principles do apply. However, `here there is no contention regarding the principles. It is very specifically contended by respondents 1 and 2 that having once agitated the issue in Canada and getting relief as prayed for, the petitioner is barred from putting up the same claims again before a Court in Pakistan. I am inclined to agree with this view of the Courts below. The case of the petitioner is hit by res judicata. Once having claimed something and the matter having been decided by a Court of competent jurisdiction, she is barred from bringing it up again in Pakistan. All her claims have already been settled. I do grant that the suit was maintainable up to the extent of dowry articles, which in any case respondent No.1 has agreed to return to the petitioner. Her suit pertained to recovery of dowry articles and her mentioning the jewelry again as dowry articles is not justifiable.

9. The impugned judgments/decrees are based on correct and concentrated reading of evidence and the law pertaining to the matter in hand. There is no infirmity or illegality in the judgment/decrees of both the Courts below. No interference is called for by this Court. Writ petition is there-fore disposed of in view of the above discussion. Writ petition dismissed. H.B.T./A-116/L Petition dismissed.