2010 PLP 846 (CLC)

HAFIZ TARIQ NASIM, J.

Facts leading to this writ petition arc that respondent No.1 filed a suit for the recovery of dowry articles valuing Rs.1,74,250 and for the grant of maintenance at the rate of Rs.2000 per month in the Court of learned Judge Family Court, Faisalabad where the petitioner contested the suit, issues were framed and finally the learned Family Judge dismissed the prayer of respondent No.1 regarding recovery of maintenance allowance however decreed the suit to the extent of Rs.5000 in respect of dowry articles. Aggrieved by the judgment and decreed dated 29-3-2008 respondent No.1 filed appeal before the learned Additional District Judge, Faisalabad who vide judgment and decree dated 24-6-2008 accepted the appeal and decreed the suit as claimed for. The learned counsel for the petitioner submits that the impugned judgment and decree is liable to be set aside on a short ground that as per section 14(2)(b) of the Muslim Family Courts Act, 1964 the appeal was not competent before the learned Additional District Judge, the suit was decreed to the extent of Rs.5000 only whereas no appeal lies from a decree passed by a Family Court before the Additional District Judge, not exceeding Rs.30,000.

2. On the other hand, the learned counsel for respondent No.1 submits that he cannot controvert this proposition of law but he insists that this very point was not raised before the learned Additional District Judge and as such the petitioner is estopped by his own conduct to raise this point at this stage.

3. Arguments heard; record perused.

4. Without going into the merits and demerits of the case it is held that the legal question can be raised even before the High Court if it is not raised before the lower Court because it is well settled law laid down by the Honourable Supreme Court of Pakistan that despite non-raising any legal objection by any party, it is obligatory on the part of the Court to apply law in its strict sense.

5. To resolve the present controversy it shall be advantageous to reproduce section 14(2) of the West Pakistan Family Courts Act, 1964 which is as under:-- "No appeal shall lie from a decree passed by a Family Court

(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section (2) of the Dissolution of Muslim Marriage Act, 1939; (b) for dower not exceeding rupees [fifteen thousand]; (c) for maintenance of rupees [five hundred] or less per month."

6. The perusal of specific provisions referred above conveys a clear message that the appeal filed by respondent No. 1 before the learned Additional District Judge, was not competent, accordingly only on this point this writ petition is allowed. The judgment and decree passed by the learned Additional District Judge., is set aside, the judgment and decree passed by the learned Judge Family Court is restored. H.B.T./M-634/L Petition allowed.