P L D 1993 Lahore 339 (PLP)

Mun'awar Ahm'ad Warraich for Respondent No, Date of hearing: 11th November, 1992. & JUDMENT This petition under Article 199 of the Constitution seeks to have the order of the learned Additional District Judge, Lahore dated 22-2,19% declared to have, been made without, lawful authority and to be of, no legal effect.

2. The petitioner, Muhammad Yaqub Jaived and the respondent, Mst Azra Parveen are husband' and wife At appears that the respondents marriage with the petitioner was in lieu -of Rs. 40,600 as dower'. The respondent' brought a suit for the recovery of that sum in" the Family Court; in that suit, the petitioner's defence was that by a deed dated 19-5-1982, the respondent' had relinquished her right to the dower money. One of the questions tried 'in the suit, therefore, was whether the respondent had so relinquished her right by the deed dated 19-5-1982. The respondent also instituted a suit in the Civil Court for the cancellation of the deed dated 19-5-1982. Both the suits were tried by the same Civil Judge; one as a family suit and the other as a civil suit. By his judgment dated 23-9-1985, the learned Family Judge found, in the dower suit, that there was a valid relinquishment; accordingly, both the suits were dismissed. The respondent took appeals to the District Court. The learned Additional District Judge who heard the appeals dismissed the appeal in the dower suit by his order dated 22-2-1992; as regards the appeal in civil suit, the learned Additional District Judge remanded -it to the learned Senior Civil Judge for giving a finding on the preliminary issue namely whether the suit was hit by the provisions of sections 10 and 11 of the C.P.C. This he did by his judgment dated 31-10-1987.

3. The learned Senior Civil Judge held by his order dated 31-10-1989 that the provisions of sections 10 and 11 did not apply. The petitioner challenged that order by means of a revision petition under section 115 of the C.P.Cs. The learned Additional District Judge held by his order dated 22-2-1992 that the suit for the recovery of dower is a family suit, that the decree passed in such a suit "can not operate as res judicata to a civil suit riled subsequently in the Civil Court"; that similarly, the pendency of suit in the Family Court "cannot be considered as a bar under section 10, C.P.C. to' .a civil suit filed for the cancellation of an agreement".

4. Learned counsel for the petitioner maintains that the view taken by the learned Senior Civil Judge and the learned Additional District Judge is wrong, for even if section 11 of the C.P.C. did not, in terms, apply, the finding of the learned Family Judge in the dower suit relating to the deed dated 19-5-1985 was by a Court of competent jurisdiction and, therefore, operated as a bar on the general principle of res judicata. Learned counsel for the respondent was, however, of the view that the Family Court and the Civil Court are Courts of independent jurisdiction and that the decision of the first could not operate as a bar to the trial of a suit in the second.

5. By section 5 of the Family Courts Act, 1964, "the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule", dower being one of the matters so specified. There is no question that in the suit for the recovery of the dower money brought by the respondent in the Family Court, the petitioner was within his right to set up the deed dated 19-5-92 and to plead that the respondent had relinquished her right to the dower money. As the Family Court was competent to decide the suit, it was also competent to decide the question of the alleged relinquishment of the dower money. In other words, the Family Court acted within its powers in deciding upon the validity of the deed dated 19-5-1982. Thus, the decision of the Family Court dismissing the respondent's suit and holding that the respondent had relinquished her right to the dower money by the deed dated 19-5-1982 was a decision by a Court of competent jurisdiction. There can also be no doubt that the real question requiring determination in the civil suit brought by the respondent challenging the validity of the deed dated 19-5-1982 was in fact a matter relating to' dower; but as has been seen, under section 5 of the Family Courts Act, 1964, the Family Courts have exclusive jurisdiction to entertain, hear and adjudicate upon such matters.

6. It is well settled that section 11 of the C.P.C. is not exhaustive of the principle of res judicata, and that merely because that section does not in terms apply to the facts of a case will not exclude the application of the general principle of res judicata., Now, suppose that the Civil Court holds in the civil suit that the deed dated 19-5-1982 was not a valid deed and there was no relinquishment. If that finding be binding upon the Family Court, its effect will be to entitle the respondent to approach the Family Court again for the recovery of the dower money. That will be re-opening the whole matter in the Family Court. I can however see no warrant in law for holding that the Civil Court is binding upon the Family Court. I am perfectly clear that if the respondent approaches the Family Court armed with that finding. Family Court will be able to say that it has already decided the matter. This illustrates how the Civil Court in assuming the jurisdiction to decide upon the validity of the deed dated 19-5-1982 has, if I may say, usurped the jurisdiction of the Family Court in a matter in which that Court has exclusive jurisdiction. In my opinion, therefore, both on the question of jurisdiction and on the ,general principle of rcs judicata, the learned Civil Judge and the Additional District Judge were wrong in holding that the finding of the Family Court in the dower suit on the question of validity of the deed dated 19-5-1982 did not operate as res judicata. It is now well settled that the general principle of res judicatu applies in such cases. In this behalf , reference may be made to Rehmat Ullah v. Ali Muhammad and another 1983 SC 1064 and Mir Salah-ud Din v. Qazi Zaheer-ud-Din (PLD 1988 SC 221).

7. For these reasons, the writ petition is accepted and it is held that the orders in question are without lawful authority and are of no legal effect. The parties are, however, left to bear their own costs. AA./M-896/L Petition accepted