P L D 1981 Supreme Court 571 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑This appeal through special leave arises out of the judgment and order dated 27th of October 1970, of the Lahore High Court, whereby a constitutional petition calling in question decree for dower passed by a Family Court against the appellants and in favour of respondent No. 3, was dismissed. Leave was granted on the submissions then made by the learned counsel for the appellants. that the family Court had no jurisdiction, because appellant No. 2, the father of appellant No. 1 (who is the husband of respondent No. 3) was impleaded as a surety and because the Family. Court had jurisdic tion over disputes between sponses only, the joining of appellant No. 2 as a defendant rendered the case beyond the jurisdiction of the Family Court ; that there was misreading of evidence regarding the Kabeen Nama ; that the disputed writing in the Kabeen Nama should have been send for comparison by and opinion of a handwritting expert‑the Family Court should not have formed its own impression of the writing ; that the Evidence Act not being applicable to the Family Courts. Rules of Muslim Law should have been followed in determining the liability of the husband (appellant No. 1). It needs to be mentioned that the leave to appeal was granted subject to the condition that;; the appellant. (No. 1) was to deposit the balance decretal amount within two months failing which the leave petition would have been dismissed. The record shows that the entire amount was in fact deposited. Learned counsel for the appellants is unable to say that it was not deposited by appellant No. 1, i.e., the husband of respondent No.

2. If that is so, the question regarding liability of the surety to pay the amount on default of payment by the husband would not arise. In any case, learned counsel for the contesting respondent has pointed out that the appellants had taken the objection in this behalf and Issue No. 1 was also framed ; but during the trial stage, this issue was not pressed. Therefore, the appellants having given up a point at the trial stage should not be permitted to urge the same in this Court. In the circumstances of this case, there is considerable force in the objection raised from the respondent side., The appellants not only gave up the point now sought to be urged before the trial Court, but also failed to urge it before the learned appellate Court nor was it urged before the High Court. We, in view of the Conduct of the appellants, see no reason to examine this aspect of the case. The learned Judges of the High Court paid adequate attention to and properly dealt with the question relating to the so‑called misreading of evidence and the failure of the trial Court to seek the opinion of the expert with‑regard to the disputed handwriting. No justification was found by the High Court to set aside the judgments impugned in its constitutional jurisdiction on these questions and after .hearing the learned counsel, we find no justification to differ. The question with regard, to the applicability of the Muslim Law was note raised before the learned trial Court nor before the District Judge ‑and it was; also not urged before the High Court. On the contrary, the appellants led' evidence before the learned Family Court in accordance with the procedure adopted and what it appears to be agreed to by the parties. Having selected a course of action and having led the Court to adopt a certain procedure without raising any objection, the appellants on account of their conduct could not seek relief from the High Court in its constitutional jurisdiction. And, in the circumstances, when the dower has already been paid and accord ing to the concurrent finding of the learned Courts below, the husband was indeed liable to pay the dower determined by the learned Court, we do not consider it a fit case for the examination of the question whether the ‑Family Court should have followed the Islamic Rules of Evidence: This point not having been urged before :the High Court, the dismissal of the appellants' writ petition was unexceptionable. This appeal fails and is accordingly dismissed. There shall be no order as to costs. So A. H, Appeal dismissed.