2004 PLP 397 (YLR)

(2) Whether this Court has got no jurisdiction? OPD (3) Whether suit is not maintainable in its present from? OPD (4) Whether suit is not properly valued for the purpose of court-fee, if so what is proper valuation? OPD (5) Whether defendant is entitled to receive any special costs, if so, how much? OPD (6) Whether impugned entry in Nikahnama is result of forgery, effected at the instance of plaintiff's parents? OPD (7) Whether plaintiff has got no cause of action? OPD (8) Relief. Evidence of the parties was recorded. Vide judgment and decree dated 25-3-1996 the suit of the petitioner was dismissed by the learned trial Court. A first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Attock, on 11-1-1997.

2. Learned counsel for the petitioner contends that the evidence on record as well as the pleadings have been misread by both the learned Courts below. According to the learned counsel, there was no evidence that any fraud has been committed in the matter of the said entry. However, the learned Courts below proceeded to dismiss the suit on hypertechnical grounds. Learned counsel for the respondent, on the other hand, has supported the impugned judgments and decrees with reference to the reasoning recorded by the learned Courts below in their respective judgments.

3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. Now the Nikahnama was produced as Exh.P.l. It was proved by Nikah Registrar P.W.4 with reference to his Register, Jang Bahadar P.W.1 and Noor Muhammad P. W.2 who are admittedly witnesses to the said Nikahnama. Now Muhammad Sarwar Khan respondent appeared as D.W.1 and responded as follows in cross -examination:--

4. It is indeed shocking that in the said admitted state of affairs the learned trial Court has proceeded to hold Issue No.6 in the affirmative and in favour of the petitioner observing that the entry is result of forgery and interpolation.

5. Now the learned Additional District Judge has given his own findings. He has stated that the entry is against Column No.20 which is meant for maintenance; that there is reference to sale and a sale has not been proved and that the description of the land is not available. To my mind the said reasonings are perverse. It is by now settled that the Courts in the country ought not to go by the form but substance of the pleadings and further to read the evidence properly based on the same. Merely the fact that the suit was in the form of specific performance ought not to have caused any hurdle in the way or learned Additional District Judge to real the plaint properly. A bare reading of the plaint would show that the petitioner-lady had expressed that the land was transferred to her as a consideration for marriage and constituted a term of the Nikahnama. Now this document has been held to be a public document by the Honourable Supreme Court of Pakistan in the case of Mst. Zubaida Bibi and others v. Mst. Majidan and another 1994 SCMR 1978. The fault in stating the said term against Column No.20 instead of Column No.16 is attributable not to any of the parties but to the official who under the law was enjoined to fill up the said document. Be that as it may, even in Column No.20 the word "Mehr" is very much there. The learned Additional District Judge has thus committed an error of jurisdiction in getting himself misled by the said fact of entry against Column No.20. Now so far as the description of land is concerned, it was very much there in the plaint. It was not the case of the respondent that he did not own the said land. The averment that the entry in the Nikahnama was fictitious stood negated in the very statement of the respondent himself in witness-box. The learned A.D.J. further failed to read the statement of Jang Bahadar P.W.1 who was confronted in cross- examination and stated that the respondent owns 500/700 Kanals of land in village Thatha and that he does not, own land anywhere else. The document EXh.P.2, the Register Haqdaran Zamin for the year 1987-88 further confirms the description of the land. Now the learned trial Court has wondered as to why the petitioner did not file a suit while she was living with the respondent as his wife. A more perverse reasoning is yet to come to my notice. It is but evident that the need to file the suit arose in the circumstances stated in the plaint affirmed in the witness-box by the plaintiff and further confirmed in the statements of the D.Ws. that she was turned out and the respondent contracted a second marriage. Needless to state here the well known quote "Hell hath no fury than a woman scorned". Having been kicked out after 12 years of marriage, for a woman being married by the respondent again and then being deprived of the land she was given, she had no other remedy but to have recourse to the Civil Court for possession of the same which is the precise relief she claimed.

6. For all that has been stated above, this civil revision is allowed, the judgments and decrees of both the learned Courts below are set aside and the suit of the petitioner is decreed for possession of the suit-land against the respondent/defendant with costs throughout. H.B.T./B-181/L Revision allowed.