2007 PLP 1599 (SCMR)

This petition has been filed against the judgment, dated 22-9-2006 passed by Lahore High Court, Bahawalpur Bench in Writ Petition No.893 of 2006/BWP.

2. Precisely stating facts of the case are that petitioner instituted a suit before the Family Judge for recovery of dowry, maintenance as well as dower. Statedly the suit was ultimately dismissed in view of the facts that parties entered into compromise on 11-11-2003. Thereafter it was alleged by the petitioner that the compromise has not been implemented whereas the claim of the respondent was that the compromise has been implemented. In the meanwhile petitioner filed a suit before Senior Civil Judge with powers of Family Judge, Bahawalpur for permanent injunction against the respondent to the effect that in terms of compromise dated 18th November, 2003 he may not contract another marriage.

3. It is important to note that in para.3 of the plaint filed by the petitioner following assertions were made:-- ?

4. It is informed by learned counsel for the petitioner that this suit was withdrawn on the advice of the Advocate and thereafter, she filed an application for execution of the compromise dated 18th November, 2003 on the ground that without drawing decree-sheet the agreement is not executable. Learned executing Court dismissed the objection and concluded that it is executable. Decision so given by the executing Court was maintained by the District Judge. Thereafter, Writ Petition No.893 of 2006 was filed which was allowed vide order, dated 5th July, 2006, and case was remanded to the trial Court. Being aggrieved by the decision of the case, civil petition was filed before this Court bearing No.686 of 2006 which was disposed of on 21st August, 2006 and the case was sent back to the High Court for decision afresh. On remand of the case, learned High Court had accepted the writ petition filed by the respondent. Relevant para. therefrom is reproduced hereinbelow:-- "Three suits tiled by the respondent were dismissed on 18-11-2003 on the basis of an agreement/compromise arrived between the parties on 11-11-2003. The contents of the said agreement have already been reproduced above. Respondent's claim is that the terms of the compromise have not been complied with by the petitioner while, on the other hand, petitioner's claim is that he has complied with. This involved examination of disputed question of fact, which could only be resolved by way of recording evidence. This exercise was only possible through a civil suit, which remedy was repeatedly availed by the respondent but without bringing it to its logical end."

5. Learned counsel for the petitioner contended that the High Court on having concluded that disputed question of fact is involved, should have remanded the case to the executing Court to ascertain as to whether the compromise dated 18-11-2003 has been implemented or not'? And non-suiting the petitioner for this reason is not justified.

6. On the other hand learned counsel for caveat contended that the High Court had rightly not remanded the case and the judgment eau be maintained on the ground that there is admission on behalf of the petitioner itself that the agreement has been implemented as it is evident from para. No.3 of the suit filed later on by her in the Civil Court, which she had withdrawn. Learned counsel stated that the respondent is willing to pay her maintenance allowance @ Rs.1,000 per month, if she agrees to perform her part of obligation and would also pay the remaining balance amount w.e.f. 28th July, 2004 in instalments @ Rs.500 per mouth subject to performance of her part. The learned counsel for the petitioner stated that arrangement is accepted but subject to return of dowry.

7. It may be noted that case of the respondent is that as he was living as Ghar Damad, therefore, those articles were kept in the house of the parents of the petitioner.

8. Be that as it may, we are not supposed to enter into this controversy in view of the admission in respect of implementation of the compromise dated 18-11-2003 as per .para.3 of the plaint in civil suit which has been reproduced hereinabove. However, we are of the opinion that judgment of the High Court can be maintained on the ground that compromise has been implemented and if she performs her part of obligation according to offer of the respondent, she would be entitled to past and future maintenance as noted hereinabove.

9. Thus, for the foregoing reasons, petition is dismissed with the above observations. H.B.T./K-4/SC??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.