P L D 2006 Supreme Court 457 (PLP)

RANA BHAGWANDAS, J.

Both the appeals with the leave of the Court are directed against judgment of the Lahore High Court dated 15-12-2004 setting aside judgments passed by appellate forum in the suits arising out of proceedings under West Pakistan Family Courts Act, 1964.

2. Appellant-Mst. Farah Naz was married to respondent-Inam Qadir on or about 28-12-1996. Marital relationship between the parties lasted for about one month when the respondent left for Paris leaving the appellant at her parental home in Sahiwal. Admittedly, there is no issue from the wedlock. As the respondent did not take care of appellant-wife for a pretty long time and married a second wife at Paris, she was feeling frustrated and in distress filed a suit for recovery of maintenance on or about 16-2-2002 at the rate of Rs.10,000 per month. The respondent, who had by this time settled in Paris, managed to file a written statement admitting the factum of marriage with the assertion that as the appellant was insane and of imbalanced mind, he had announced divorce to her on 13-12-1997 in presence of witnesses, therefore, she was not entitled to the relief of maintenance. Coming to know about the so-called act of divorce, appellant was persuaded to file another Suit No.133 of 2002 on 15-7-2002 for recovery of the amount of dowry articles given to her by her parents at the time of her wedding. Likewise, this suit was resisted by the respondent through a written statement from Paris and both the suits proceeded before a Family Court at Sahiwal. It is pertinent to mention here that written statements in both he suits were incompetently filed as the relevant time, was settled in Paris (France) and written statements were not got attested from the Embassy of Pakistan, France as per Article 89 of Qanun-e-Shahadat, 1984. Reference may be made to Saeed Ahmad v. Mehmood Ahmad (PLD 1968 Lahore 520). The suit for maintenance was dismissed by Family Court vide judgment dated 17-7-2003 on the premise that the appellant having been divorced on the date of suit was not entitled to her maintenance. Second suit for recovery of Rs.9,55,038, being value of the dowry articles, was decreed by the trial Court through its judgment of even date in the sum of Rs.4,00,000.

3. Appellant challenged both judgments and decrees in appeals, which came up for hearing before an Additional District Judge, who decided the appeals by two separate judgments dated 22-4-2004. On re-evaluation of the evidence appellate Court held that by reason of divorce announced by the respondent, she would be entitled to claim maintenance with effect from 28-12-1996 to 14-4-1998 and directed the respondent to pay the same at the rate of Rs.8000 per month. In the second appeal, he enhanced the value of dowry article from Rs.4,00,000 to Rs.9,55,038 and decreed the suit accordingly. Respondent being dissatisfied with the judgments in both appeals filed two writ petitions before the Lahore High Court, Multan Bench. Learned Judge in the High Court while accepting writ petition impugning the decree for maintenance passed by appellate Court, held that the plaintiff, in law, being entitled to claim maintenance for a period of three years prior to the filing of the suit could only be awarded maintenance from 15-2-1999 but since she stood already divorced on this date, therefore, her suit for maintenance was rightly dismissed by the trial Court. By another judgment in the writ petition filed by the respondent, learned Judge proceeded to re-evaluate the evidence and substituted the findings of fact recorded by the appellant Court. Consequently, he set aside the judgment of the appellate Court and restored that of the Family Court decreeing the suit in the sum of Rs.4,00,000.

4. Both the parties being dissatisfied, filed three separate petitions for leave to appeal, in which leave was granted by this Court on 20-10-2005 to examine the question, inter alia, whether judgment passed by the High Court suffers from misreading or non-reading of record and whether the question of limitation for the purpose of past maintenance was correctly decided by the High Court in accordance with law. It may be pertinent to note that C.P:L. As in these appeals filed by the appellant were barred by 27 days respectively and leave to appeal was granted subject to the question of limitation.

5. We have heard Mr. S.M. Masood, learned Advocate Supreme Court for the appellant in both the civil appeals and Mr. Muhammad Asghar Bhutta, learned Advocate Supreme Court for the private respondent at length and gone through the record.

6. Adverting to the question of limitation in filing these petitions, it may be noted that explanation furnished by the appellant is that she is a parda observing lady and her brother Shaukat Ali Khan used to look after her affairs, but he being employed in Merchant Navy was out of country. He returned to Pakistan from Singapore on 21-1-2005 whereafter he contacted a local counsel at Sahiwal, who being not a practising Advocate of Supreme Court having consulted the latest diary published by Punjab Bar Council for the year 2005, informed him that under Article 179 of the Schedule to the Limitation Act, as mentioned at page 14 of the diary, period of 90 days was provided for filing a petition for leave to appeal from the date of decree. He advised the brother of the appellant accordingly that period for such purpose would be 90 days. In these circumstances, the appellant pleaded that she being a parda observing lady and not moving in public was misled due to wrong advice tendered by the counsel. Thus the delay, if any, was neither deliberate nor intentional. In support thereof apart from her affidavit, she has filed affidavit of Mr. Israr Ahmad Chaudhry, Advocate Sahiwal, copies of relevant pages from the diary of the Punjab Bar Council as well as copies of the entries in the passport of Shaukat Ali Khan to demonstrate that he landed at Lahore on 21-1-2005.

7. Upon hearing learned counsel for parties and examination of the aforesaid documents, which have remained un-rebutted, we are persuaded to the view that there was a sufficient cause for filing the petitions beyond the period prescribed by law.. We earnestly feel that a party shall not be made to suffer or prejudiced on account of wrong advice of a counsel provided it was tendered bona fide. We are fortified in our view by Rajendra Bahadur v. Rajeshwar Bali (AIR 1937 PC 276), A Nazar Muhammad v. Shahzada Begum (PLD 1974 SC 22) and Abdul Raud v. Khurshid Ali (1992 SCMR 592) Period for filing of leave petitions in both the appeals is, therefore, extended under the provisions of Order XIII rule 2 of the Pakistan Supreme Court Rules 1980 in the larger interest of justice.

8. Reverting to the merits of the appeals in the suit for maintenance, it may be observed that the trial Court as well as the appellate Court and the High Court fell in serious misconception of law. The first two Courts having accepted the averments of written statement of the respondent and his affidavit without proper attestation as gospel truth treated the same as legal evidence without subjecting him to the test of cross-examination. It is ironical to note that the appellant had moved an application under section 11(4) of the Family Courts Act 1964 praying the trial Court to summon the respondent for cross-examination in relation to his affidavit forwarded from Paris but the Family Court illegally rejected the said prayer and accepted the affidavit on its face value merely because the respondent had been living in Paris and was not readily available in Pakistan. This approach on the part of the trial Court and endorsed by the appellate Court apart from being without any legal backing is repugnant to the settled principles of law that an affidavit without an opportunity of cross-examination to the opposite party does not constitute legal and valid evidence and must be excluded from consideration.

9. On its part, High Court also committed serious error of law by non-suiting the appellant with the observation that period for recovery of past maintenance being three years, without citing any provision of the Limitation Act proceeded to endorse the judgments of the two Courts below. Indeed the claim for past maintenance would be governed by Article 120 of the Schedule to the Limitation Act 1908, which prescribes a period of six years in a suit for which no period is provided elsewhere in this Schedule from the date when the right to sue accrues. Furthermore, by reason of section 13 of the Limitation Act 1908 in computing the period of limitation prescribed for any suit the time during which the defendant had been absent from Pakistan and from the territories beyond Pakistan under administration of the Central Government shall be excluded. Assuming, without conceding, even if the period of limitation for such suit be three years, in view of the admitted absence of the respondent from Pakistan, the period of his absence from Pakistan shall be excluded for reckoning the period of limitation. We are supported in this view by the precedents reported as Muhammad Nawaz v. Khurshid Begum (PLD 1972 SC 302), Mst. Bushra Qasim v. Dr. Abdul Rasheed and others (1993 CLC 2063), Mst. Zaibun v. Mehrban (PLD 2004 SC (AJ&K) 25) and Mst. Anar Mamana and another v. Misal Gul and 2 others (PLD 2005 Peshawar 194).

10. On the merits of the case, we find that the appellant having been lawfully wedded to the respondent in the absence of any proof of dissolution of marital tie, it was his legal, moral as well as social duty under the Islamic principles to provide adequate maintenance for her respectable living as in law he could not neglect to maintain her during the subsistence of the marriage tie. His bald statement that he had announced Talaq to her on 13-12-1997 cannot be accepted at all as he utterly failed to substantiate it. In law, he was required to send notice to the Arbitration Council under the Muslim Family Laws Ordinance 1961 and also to send a copy of notice to the appellant by registered post. No such proceedings having been ever conducted, oral allegation of Talaq would neither be effective nor valid and binding on the appellant, who would, in all fairness, be legally entitled to past maintenance as claimed by her. In view of social status and income of the respondent, living in a highly developed country like France the amount of maintenance claimed by the appellant was neither excessive nor unreasonable in view of inflation in the cost of living and the amount of probable income earned by the respondent. Her claim, therefore, was justified by all canons of justice and reason. Two Courts below as well as the High Court, therefore, suffered from serious error of law by misreading of record and exclusion of material piece of evidence from consideration, which has resulted in gross miscarriage of justice. In fact the written statement cannot be considered as substitute of evidence on oath. Similarly, as observed earlier, affidavit of the respondent though attested by Pakistan Embassy in France would not constitute' legal evidence as he did not appear for his cross-examination before the Family Court. In fact he did not endeavour to appear even before the appellate Court at any point of time. Unrebutted version of the appellant would, therefore, be considered as valid and legal for all intents and purposes, particularly, when it stood uncontroverted. Consequently, we are of the considered view that the interference of the High Court in the matter in its constitutional jurisdiction was beyond the scope of Article 199 of the Constitution and the judgment of the High Court must not be allowed to remain in field. We, therefore, while setting aside the judgments of the High Court and the trial Court direct that in practical modification of the judgment of the appellate Court the suit of the plaintiff or maintenance be decreed in the sum of Rs.10,000 per month as claimed by her in the suit.

11. Taking up the issue of dowry articles, again the evidence of the appellant was neither contradicted nor rebutted and the list of article as well as value of the articles shown in it must be accepted on its face value. Indeed reasons recorded by the trial Court in this behalf do not appeal to mind and assessment of value of the articles shown in it must be accepted on its face value. Indeed reasons recorded by the trial Court in this behalf do not appeal to mind and assessment of value of the articles in the sum of Rs.4,00,000 appears to be artificial, whimsical and arbitrary. On the other hand calculation made by the appellate Court accepting the claim of the appellant in the sum of Rs.9,55,038 is evidently justified and warranted by law. It was none of the business of the High Court in writ jurisdiction to substitute its own findings for the findings recorded by the court of appeal after due appraisal of evidence. We would, therefore, set aside the judgment of the High Court as well as that of the Family Court decreeing the suit in the sum of Rs.4,00,000 and restore the judgment of the appellate Court accepting the claim of the appellant, as pleaded in the suit.

12. For the aforesaid facts, circumstances and reasons, both the appeals are allowed with costs. M.H./F-7/S Appeal allowed.