2011 PLP 351 (MLD)

MANSOOR AKBAR KOKAB, J.

Vide present writ petition, the petitioner assails the judgment and decree dated 11-1-2010 passed by learned Additional District Judge, Lahore, whereby the judgment and decree passed by the learned Judge Family Court, Lahore was modified by reduction in the amount of dowry from Rs. 2,80,000 to Rs. 50,000 and the amount of maintenance allowance from Rs. 3000 to Rs. 2000, per month.

2. Before embarking upon the merits of this writ petition, this Court is mindful to of the growing trend of the litigant public that under certain statutory provisions, the court, special courts and tribunal's judgment or order are to be assailed only once before the higher forum by way of an only right of appeal or revision, whereas the second appeal is either not provided or specifically barred, the writ petition under Article 199 of the Constitution of Pakistan is made a tool to avail the remedy not available to them and thus thereby the statutory provisions specifically and consciously enacted by the legislature either to ease the litigant public for expeditious decision and finality of the case or to making the litigation cast effective or saving the litigant undue dragged into lengthy and endless process of pending lis, is completely frustrated. PLD 1997 SC 401 "Government of Pakistan v. Muhammad Yasin and another", describing that the writ jurisdiction is of a discretionary nature stresses upon by reminding that the superior Courts have repeatedly pointed out that constitutional jurisdiction is exercised with restraint and in grave cases where subordinate tribunals act wholly without jurisdiction or in excess of it or in violation of principles of natural justice or refuse to exercise jurisdiction vested in them or there is an error apparent on face of record and such act, omission or excess has resulted in manifest injustice. It is further evinced by the same commanding judgment, "However, extensive jurisdiction may be, it is not so wide or large as to enable High Court to convert itself into a court of appeal and examine for itself correctness of decisions impugned and decide what is proper view to be taken or order to be made." The worthy citation further refers PLD 1962 Lahore 911, "Mst. Mehmood Begum v. Chief Settlement Commissioner West Pakistan and another" to quote, "writ will not issue if only grievance is that order was not proper or just", and Shabbir Ahmad, J., has pointed out at page 915 of the report:- "There is a fundamental difference between the power to hear appeals or revisions and the powers to issue writs."

3. Even in past the lordly full Bench of the Supreme Court observed in case titled "Muhammad Hussain Munir and others v. Sikandar and others", PLD 1974 SC 139:-- "it was wholly wrong to consider that the constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercise able in a full-fledged appeal, which plainly is not the intention of the Constitution-makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction."

4. In this scenario while entertaining the writ petition for admission of hearing, against judgment and decree or order which have devoid of second appeal and which relates to statute providing only one right of appeal, the High Court shall put in use of its energies by testing the matter at issue of the concerned writ at the touchstone of criteria quoted hereinabove extracted from the three valuable and worthy citations. Any leniency by the court while admitting writ petition for regular hearing in such-like cases wound tantamount to piling up the junk in the backlog of the cases and thereby such delinquency does not only put the court in trouble in adjudication of un adjudicable matter but also hampers the vested right of the, respondent, whereby he is forcefully dragged into litigation, incurring burden in terms of time and money.

5. In the present writ petition, misreading of evidence by the first appellate Court which was the final court, has been pointed out. No legal or gross misuse of jurisdiction has either been attributed nor is pointed out during arguments. It is pity on the part of the petitioner who complaints for reduction in the amount of maintenance allowance that in her affidavit Exh. P-4, what equates with her examination-in-chief as a witness, she nowhere mentioned her claim about maintenance allowance, that means she did not even substantiate her contents of the plaint. Likewise in the same affidavit i.e. Exh. P-4 the detail of the dowry articles has not been mentioned. With regard to reduction in amount of dowry articles, the learned trial Court i.e. the court of the Judge Family Court passed an enhanced-amount-decree considering certain list of articles having been given at the time of marriage, while admittedly the list was subsequently prepared by the sister of the petitioner having no signature or note of bridegroom's family member, pertaining to correctness of the same. Moreover the value of each article or receipts (photocopies) of the alleged purchased articles of dowry have been considered as reliable one in spite of the fact that neither any executant of the same appeared in the witness box nor from the receipts, it is established that who purchased the article from whom and in some cases the receipts are postdated than the marriage. The appellate court rightly determined the amount of dowry on the basis of respondent/defendant's evidence as in affidavit of respondent, Exh. DA, it was asserted that some of dowry articles had been taken away by the petitioner and few articles were lying in the "Peti", with him and he was ready to return the same.

6. With regard to maintenance allowance for the period of Iddat, as the divorce had already been effected between the parties before filing of this writ, was not challenged in the original claim and it was for the first time raised in writ. That claim is though not considered as for as extended period of pre-divorce life for the purposes of maintenance allowance and certainly is a right of divorcee woman towards her ex-husband imposing duty, making him answerable to Allah Almighty and that duty is only-discharged if the maintenance is provided on a reasonable scale. (Al uran Surra II Ayts. 241 and 242). The term reasonable scale (Bilmaroof) refers to ability of the ex-husband and as pre-divorce period and Iddat period are conjoined therefore no severing line can be drawn for the purposes of ability to provide the maintenance allowance. The Ayt. 242, "Thus doth Allah make Clear His Signs to you: In order that ye may understand" (translation by Abdullah Yusuf Ali) eke out voluntary increase but the court can't order the increase compulsively.

7. Though this court was not inclined to indulge itself into deeper appreciation of evidence discussed by the Courts below because of former part of this judgment but even the observation made by this Court vis-a-vis produced evidence renders the petitioner to put forth no good case for interference into the judgment and decree awarded by learned Additional District Judge dated 11-1-2010 which are hereby maintained and the writ petition is dismissed. M.U.Y./T-47/L Petition dismissed.