2019 PLP 41 (CLCN)

KHADIM HUSSAIN M. SHAIKH, J.

By this common judgment, I intend to dispose of all the three captioned petitions, which involve family dispute between the petitioner Muhammad Shafi Messo and the respondent Mst. Shumaila. (1) C.P. No. S-1566 of 2018 re: Muhammad Shafi Messo v. Mst. Shumaila.

2. Briefly, the facts of the matter in the instant petition are that plaintiff/respondent No.1 Mst. Shumaila was married with the petitioner/defendant Muhammad Shafi Messo on 08.07.1993 against the dower amount of Rs.50,000/-, which was payable on demand. It is alleged that at the time of Rukhsati, plaintiff/respondent Mst. Shumaila had taken the dowry articles of worth Rs.2,80,500/- including ornaments of gold etc, received by her from her parents, to the house of the petitioner/defendant Muhammad Shafi Messo, which are still lying there. It is averred that atmosphere in the house of the petitioner was not proper and two unmarried sisters living in the said house had created several problems for the respondent, who was not even allowed to continue her further study; and was finally compelled to leave house of the petitioner on 24.08.2000. Out of this wedlock, the parties were blessed with two children namely Taha Bahatashan and Shaftain Zohra. It is further alleged that the delivery expenses etc. were borne by the parents of the respondent and nothing was provided by the petitioner to the respondent. As the petitioner deserted the respondent and the aforesaid two minor children and he failed to provide maintenance to them, therefore, the respondent filed a suit being Family Suit No. 5 of 2004 for recovery of dowry articles and maintenance etc against the petitioner with the following prayers:- (a) Decree the suit of plaintiff against the defendant for payment of Rs.50,000/- of her dower. (b) Delivery expenses on the birth of baby daughter Shaftain Zohra Rs. 25,000/-. (c) Pass a decree against the defendant for payment of her maintenance from 24.08.2000 to 28.02.2002 at the rate of Rs.4000/-per month amounting to Rs.52,933/- as past and at the same rate in the future. (d) Pass decree against the defendant for payment of past maintenance for first eight months i.e. from 24.08.2000 to 30.01.2001 at the rate of Rs.3000/-per month amounting to Rs.4000/- from 01.09.2001 to 28.02.2002 for 06 months at the rate of Rs.2000/- per month amounting to Rs.12,000/-. (e) Restore all her dowry articles which are in custody of the defendant as the plaintiff was not allowed to use them or in the alternative Rs.2,80,500/- as its costs. (f) Vaccine for the children Rs. 6700/-. (g) Costs of the suit may also be awarded to the plaintiff. (h) Any other relief deemed fit and proper in the circumstances of the case may also be awarded.

3. The petitioner/defendant Muhammad Shafi Messo filed his written statement wherein he admitted the marriage of the respondent with him; the above children having been born out of the said wedlock; and, his failure in providing maintenance. He however, denied the allegations levelled against him and also claimed to have paid the dower amount to the respondent/plaintiff in presence of her parents.

4. On the divergent pleadings of the parties five issues were framed and thereafter both the parties adduced their evidence to substantiate their respective pleadings and claims. The learned family Court after hearing the parties, partly decreed the suit and only allowed dowry articles or costs thereof to the extent of the admissions of the defendant; Dower amount of Rs.50,000/- maintenance from September 2000 till payment of dowry articles/patch-up at the rate of Rs.2000/- per month for the respondent Mst. Shumaila; maintenance of Rs.2000/- per month with annual increase of 25% for his son from September, 2000 till he attains majority; and maintenance of Rs.2000/-per month for his daughter with annual increase of 25% since her birth till she gets marry, however, the amount earlier paid by the petitioner was ordered to be deducted from the aforesaid amount of maintenance vide judgment and decree dated 25.05.2004.

5. Being aggrieved by the aforesaid judgment and decree, the petitioner filed Family Appeal No. 153 of 2004 in the Court of learned District Judge. Hyderabad, which was ultimately decided by the learned Vth Additional District Judge, Hyderabad, after hearing the parties counsel and re-appraisal of the evidence brought on record vide judgment dated 12.02.2010 and decree dated 13.02.2010, whereby the appeal filed by the petitioner was dismissed. The petitioner filed petition No.S-149 of 2010 re: Muhammad Shafi Messo v. Shumaila, which was dismissed by this Court for non-prosecution on 02.11.2017 and then the petitioner's application for restoration of the petition was also dismissed on 02.04.2018. Thereafter. the petitioner filed Civil Petition No.534-A/ 2018 re: Muhammad Shafi Messo v. Mst. Shumaila before the Hon'ble Supreme Court of Pakistan, which was also dismissed on 19.06.2018 and the review application filed by him before the Hon'ble Supreme Court of Pakistan was also dismissed on 06.08.2018. The petitioner has now filed the present petition on 20.08.2018, challenging again the judgments dated 25.05.2004 and 12.02.2010 and decrees dated 25.05.2004 and 13.02.2010 passed by the learned Courts below, which attained finality, with the following prayers:- (a) To call R & Ps from the learned appellate Court as well as learned trial Court. (b) To set aside the judgment and decree dated 12.02.2010 passed by the learned Vth Additional District Judge, Hyderabad and judgment and decree dated 25.05.2004 passed by learned Judge family Court No. VII, Hyderabad and case remanded back to trial Court to decide on merits after proper appreciation of the evidence available on the record. (c) That any other relief which this Honourable Court deems fit may be awarded to the petitioner. (2) C.P. No. S-1567 of 2018 re: Muhammad Shafi Messo v. Mst. Shumaila.

6. Facts in brief of this petition are that the petitioner had filed Guardianship Application No.15 of 2007 re: Muhammad Shafi Messo v. Mst. Shumaila against the respondent Mst. Shumaila in the Court of IXth Civil/Family Judge, Hyderabad seeking his appointment as guardian of minors Taha Bahatashan and Shaftain Zohra Shafi, which was dismissed vide order dated. 23.5.2008 that was appealed against by the petitioner by filing Guardian Appeal No. 07 of 2008, which was dismissed by learned Vth Additional District Judge, Hyderabad vide judgment dated 10.08.2010 and decree dated 11.8.2010. The petitioner then filed C.P. No.S-509 of 2010 re: Muhammad Shafi Messo v. Shumaila, challenging the aforesaid judgment, decree and order, which was dismissed for non-prosecution vide order dated 02.11.2017 and then the restoration thereof was also declined vide order dated 02.04.2018. Thereafter the petitioner filed Civil Petition No.533-K/2018 re: Muhammad Shafi Messo v. Mst. Shumaila before the Hon'ble Supreme Court of Pakistan, which was dismissed vide order dated 19.06.2018 and then the petitioner filed review petition before the Hon'ble Supreme Court of Pakistan, which was dismissed on 06.08.2018. The petitioner has now filed the present petition on 20.08.2018 re-challenging the order dated 23.05.2008. judgment 10.08.2010 and decree dated 11.08.2010, passed by the learned Courts below, which attained finality. (3) C.P. No. S-1568 of 2018 re: Muhammad Shafi Messo v. Mst. Shumaila.

7. Facts in brief of this petition are that the petitioner filed a suit for Restitution of Conjugal Rights being Family Suit No.22 of 2002 re: Muhammad Shafi Messo v. Mst. Shumaila against the respondent Mst. Shumaila in the Court of Civil/Family Judge, Kotri, which was decreed vide judgment and decree dated 14.2.2009, which were appealed against by the respondent Mst. Shumaila filing Family Appeal No. 1 of 2009 in the Court of learned District Judge, Jamshoro @ Kotri, which was ultimately decided by learned Additional District Judge, Kotri vide judgment and decree dated 29.10.2009, whereby the learned appellate Court set aside the aforesaid judgment and decree dated 14.02.2009, passed by learned Ist. Civil Judge, and Family Judge, Kotri. The petitioner challenged aforesaid judgment and decree dated 29.10.2009 of learned appellate Court in C.P. No.S-522 of 2010 re: Muhammad Shafi Messo v. Mst. Shumaila, which was dismissed for non-prosecution vide order dated 02.11.2017 and then the petitioner filed application for restoration of the petition which was also dismissed on 02.04.2018. Thereafter the petitioner filed Civil Petition No.533-K/2018 re: Muhammad Shafi Messo v. Mst. Shumaila before the Hon'ble Supreme Court of Pakistan, which was dismissed vide order dated 19.06.2018 and then the petitioner filed review petition before the Hon'ble Supreme Court of Pakistan, which was also dismissed vide order dated 06.08.2018. The petitioner has now filed the present petition on 20.08.20-18 re-challenging the same judgment and decree dated 29.10.2009 of the learned appellate Court, which attained finality.

8. It is, inter alia, contended by the learned counsel for the petitioner that the learned family Court, while deciding the first two matters had not properly appreciated the evidence brought on the record and the learned appellate Court in all the three matters while passing the impugned judgments, decrees and order has committed material irregularities and illegalities. He, therefore, prays that all the matters may be remanded to the learned appellate Court for deciding the same afresh after re-considering the evidence adduced by the parties.

9. Respondent Mst. Shumaila, who is present in person, has mainly contended that after her marriage with the petitioner Muhammad Shafi Messo, she was ill-treated by inmates of his house including his unmarried old age sisters, who had made her life miserable and the petitioner at their instance had deserted her in a couple of years of her marriage with him; that the petitioner had even not borne the delivery expenses of their second child namely Shaftain Zohra, which were borne by her parents; that the petitioner, who earlier was Assistant Professor and now is a Professor in University of Sindh, having handsome salary right from inception of the marriage with her, had not provided proper maintenance to her and his own children; that she, who is a Teacher after great deal of labour having faced imminence hardships, had grown-up her children namely Taha Bahatshan and Shaftain Zohra, who are now studying in Electrical Engineering (second year) CASE, University Islamabad and Software Engineering (1st Year) Riphah International Islamabad respectively, who both are dependant and their expenses are Rs.40,000/- to Rs.50,000/- per month; that the petitioner has even not spared his own children and made their lives miserable by depriving them of their right of maintenance; and, that the petitioner has been dragging her by filing petitions and cases here and there without any justification. She, therefore, prays that petitions may be dismissed.

10. Learned Assistant Advocate General Sindh supporting the submissions of the respondent No.1 states that these petitions are not maintainable, which may be dismissed.

11. I have considered the submissions of the learned counsel for the petitioner, the respondent No.1 and learned Asstt: A.G and have gone through the material brought on record.

12. From a perusal of the record, it would be seen that the learned Family Court after hearing the parties, partly decreed the Family Suit No. 05 of 2004 of the respondent/lady Mst. Shumaila, allowing the dowry articles of valuing Rs.60000/- only to the extent of admissions of the petitioner/defendant in his written statement instead of dowry articles valuing Rs.2,80,500/-, claimed by the plaintiff/respondent; dower amount of Rs.50000/-; the maintenance at the rate of Rs.2000/- per month for the respondent Mst. Shumaila till the payment of dower/patchup; the maintenance for his son at the rate of Rs.2000/- per month till he attains the majority with annual increase of 25%; and maintenance for his daughter till she gets marry at the rate of Rs.2000/-per month with annual increase of 25% with further observations that the earlier amount paid by the petitioner would be deducted from the maintenance amount allowed to the respondent and the children named above. On a query, the petitioner, who is present in person, states that he used to send an amount of Rs.1000/-per month for both the children i.e. Rs.500/-for each child; and, that he earlier was Assistant Professor and now is Professor in University of Sindh, having salary of Rs.82,000/- with several perks' and also earning money on his lecturers etc. Record reflects that the petitioner earlier had challenged the aforesaid impugned judgments, decrees and orders passed by the learned Courts below in Constitutional Petitions Nos-S.149 of 2010, 509 of 2010 and 522 of 2010 before this Court, which were dismissed vide orders dated 02.11.2017 for non-prosecution and then applications for restoration of the said petitions filed by the petitioner were also dismissed vide order dated 02.04.2018. The petitioner then filed Civil Petitions Nos.533-K, and 534-K of 2018 before the Hon'ble Supreme Court of Pakistan, which were also dismissed on 19.6.2018. The matter did not end there, as the petitioner then filed review petitions before the Hon'ble Supreme Court of Pakistan, which were also dismissed on 08.06.2018. It is strange enough that despite his failure upto the level of Hon'ble Supreme Court of Pakistan and the judgments, decrees and orders etc. passed against the petitioner by all the Courts, having attained finality, the petitioner by filing these petitions have made a vain attempt to re-agitate the same matters. The petitioner, who is a Professor, has deprived the respondent and his own children, of their right of maintenance for last 18 years, who both being students studying in Electrical Engineering (second year) CASE, University Islamabad and Software Engineering (Ist Year) Riphah International Islamabad respectively are dependants and, per respondent Mst. Shumaila, their monthly expenses for education, lodging and boarding etc in view of the prevailing high costs of living, education, meals, essential commodities and conveyance and fair etc, are Rs.40,000/- to Rs.50,000/- per month. Patently, the petitioner has been attempting to deprive his own children and the respondent of fruits of the decrees in their favour and to delay the payment of even aforesaid meager amount allowed by the Courts, by filing these petitions. Such contumacious conduct displayed by the petitioner could not be expected from even a person of an ordinary class, what to say about the petitioner, who is a Professor in University of Sindh. In such view of the matter, the captioned petitions besides being meritless, also lack bona fide and are liable to be dismissed. These are the reasons of short order announced by me on 24.09.2018, whereby these instant petitions were dismissed along with pending applications. MQ/M-30/Sindh Petition dismissed.