1993 PLP 1538 (CLC)

(b) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Controversial question of fact could only be decided after evidence was recorded‑‑‑Plea of fact could not be inquired into in Constitutional jurisdiction of High Court. Attaullah Khan for Petitioner. Petitioner Abdul Razzaq filed this Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for issuing direction to respondent No.2 to decide the point of territorial jurisdiction as a preliminary issue. Facts necessary for disposal of this Petition are that respondent No. 1 is the wife of petitioner and on account of certain differences she filed Suit No.1115/89 before VIIIth Family Judge Karachi, East, for dissolution of her marriage from petitioner, but it was dismissed for non‑prosecution on 19‑4‑1990. After some time, she again filed the suit, being No.F.S. 163/90, for same purpose, showing her address, as House No.611, Street No.3, Memon Colony Khada Market, Karachi No.53, before Xth Family Judge, Karachi South. By misrepresentation and producing a fake person as petitioner, she succeeded in getting ex parte judgment and decree dated 25‑11‑1990, which on petitioner's application, were set aside by learned IXth Family Judge, Karachi, South, vide order dated 9‑10‑1991. It is averred in the Petition that respondent No.l is residing within the jurisdiction of Karachi East, as such, Family Court Karachi South, had no territorial jurisdiction to proceed with the matter. The petitioner, on 10‑11‑1992, moved an application before concerned Court for deciding issue of territorial jurisdiction as preliminary issue, but no action was taken and on the contrary learned Family Judge South even did not frame such issue. The petitioner, therefore, has prayed that respondent No.2 (XIVth . Family Judge, Karachi South) be directed to decide the point of territorial jurisdiction as preliminary issue. The case has proceeded before said Family Judge, Karachi South, and respondent No.l examined herself and to her witness Muhammad Yousaf. She deposed that the petitioner had filed three cases of Zina against her and after about 1 month of dismissal of the previous suit, she shifted to Khada. Her father Muhammad Yousaf, on oath, stated that since he was not have getting work in Landhi, he shifted to Khada. Under Rule 6 of the Family Court Rules, 1965 in Suit for dissolution of marriage, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction in the matter. From the material available on record, it appears that respondent No.l, after dismissal of First suit, had shifted to Khada, which is within the jurisdiction of Karachi South. Learned counsel for petitioner, contended that above assertion of respondent No.l is incorrect and respondent No.l all the time lived within the jurisdiction of Karachi East. This controversial point is a question of fact and can only be decided after the evidence is recorded. Plea of fact cannot be inquired into in Constitutional jurisdiction. Learned Family Judge is directed to record finding in the judgment, on the point, as to where respondent No.l was, at the time of institution of Suit, residing. With above observation, this petition is dismissed in limine. Miscellaneous Applications Nos. 229 and 230 of 1992 have become infructuous and stand disposed of. H.B.T./A‑1368/K Application dismissed.