P L D 2011 Lahore 579 (PLP)

ASAD MUNIR, J.

The marriage between the petitioner and respondent No. 3 was contracted by means of Nikahnama dated 24-7-2005 but the marriage was short-lived as respondent No. 3 on 14-8-2007 pronounced talaq on the petitioner. The talaq became effective on 15-12-2007 whereafter the petitioner filed a suit against respondent No.3 for the recovery of her dowry articles including gold ornaments weighing ten tolas. These gold ornaments were claimed on the basis of the entry in Column No. 17 of the Nikahnama dated 24-7-2005 which, apart from fixing pocket money of Rs.3,000 per month, stated that the said ornaments had been gifted to the petitioner at the time of marriage. However, the petitioner soon realized that she could not claim the gold ornaments as part of her dowry whereupon on 11-3-2008 she withdrew her claim in respect of the recovery of gold ornaments and on 10-4-2008 filed a suit against respondent No. 3 for the recovery of the gold ornaments. By judgment and decree dated 7-9-2009, the petitioner's suit for recovery of the aforesaid gold ornaments was allowed by the Judge Family Court, Kharian, but in appeal the learned Additional District Judge, Kharian, through his judgment and decree dated 26-12-2009 dismissed the suit on the grounds that the suit was not maintainable as the claim made therein was withdrawn unconditionally in the earlier suit and that the learned Judge Family Court was possessed with no jurisdiction to entertain the petitioner's claim of recovery of gold ornaments in view of the rule laid down in Muhammad Akram v. Hajra Bibi and 2 others (PLD' 2007 Lahore 515). The vires of the said judgment and decree, passed by the learned Additional District Judge, Kharian, have been assailed through this writ petition.

2. It is contended by the learned counsel that the reliance of learned Additional District Judge on Muhammad Akram v. Hajra Bibi and 2 others supra was misplaced as the said case is distinguishable on its facts it has been contended by the learned counsel that in the light of the amendment introduced in 2002 in the West Pakistan Family Courts Act, 1964, the scope of the Family Court's jurisdiction has been enlarged to allow a wife to bring a suit for the recovery of her personal property and belongings.

3. Conversely, the learned counsel for respondent No.3 has opposed the petition by contending that the petitioner's. suit for recovery of gold ornaments was barred as her earlier suit for recovery of dowry articles including the gold ornaments had been unconditionally' withdrawn to the extent of her claim for gold ornaments without reserving any right to file a fresh suit nor was leave granted to her to- file a fresh suit for recovery of the gold ornaments. The learned counsel has placed reliance on Haji Mir Alam Shah v. Adam Khan and 16 others (2004 CLC 1100) to contend that the withdrawal of the suit by the petitioner to the extent of gold ornaments was unconditional in terms of Order XXIII, Rule 1, C.P.C., wherefor her suit was barred by res judicata. Learned counsel has relied upon Muhammad Akram v. Hajra Bibi and 2 others supra in support of his contention that the Judge Family Court had no jurisdiction to entertain the petitioner's suit for recovery of the gold ornaments.

4. I have heard the learned counsel for the parties and have also examined the case-law cited by them.

5. In her earlier suit for the recovery of dowry articles, the petitioner had included gold ornaments but the gold ornaments, having been given by respondent No.3, could not be recovered as part of the dowry., Upon realization, the petitioner on 11-3-2008 withdrew her claim in respect of the recovery of the gold ornaments but it appears that her claim was unconditionally withdrawn without leave of the court to file a separate suit in respect thereof. Within a month of the withdrawal of the claim, the petitioner on 11-4-2008 filed a separate suit for the recovery of gold ornaments. It has been argued on behalf of respondent No.3 that the petitioner's fresh suit for recovery of gold ornaments was barred by res judicata as she had unconditionally withdrawn her claim under the provisions of Order XXIII, Rule 1, C.P.C. However, in view of the clear mandate of section 17 of the West Pakistan Family Courts Act, 1964, the provisions of C.P.C., except sections 10 and 11, do not apply to the proceedings before the Family Court. The case-law on the point also supports this position. In a recent case titled Dr. Asma Ali v. Masood Sajjad and others (PLD 2011 Supreme Court 20), it was held by the honourable Supreme Court that the provisions of C.P.C. are not stricto sensu applicable to proceedings before a Family Judge. In Ejaz Mahmood v. Ms.t. Humaira and another (1983 CLC 3305) also, it was observed that the provisions of C.P.C. are not applicable to a family suit but the Family Judge can adopt any procedure not expressly barred by the Act.

6. It was argued by the learned counsel for the petitioner that the principle of res judicata contained in section 11, C.P.C., has been specifically made applicable to the proceedings under the West Pakistan Family Courts Act, 1965, on account of section 17 thereof with the result that the petitioner's family suit is barred by res judicata. I am afraid this argument is without force as section 11, C.P.C., or res judicata has no relevance in a case where a suit is not adjudicated upon but is withdrawn. In such an event, it is settled law that res judicata does not apply but the suit would be barred under section 12, C.P.C. If authority is needed, one can refer to Nand Lal v. Mst. Lakhmi and others (AIR 1939 Lahore 414) Periaswami v. Vaidhilingan (AIR 1937 Madras 718). No doubt, section 17 of the West Pakistan Family Courts Act, 1964, by way of exception expressly allows the applicability of sections 10 and 11, C.P.C., to the proceedings before Family Court. However, the rest of the provisions of C.P.C. including its section 12 or Order 23, Rule 1(3), derived therefrom do not apply to such proceedings. Haji Mir Alam Shah v. Adam Khan and 16 others supra, cited by the learned counsel for respondent No.3, cannot be applied to the present case as it relates to a civil suit in contradistinction to a family suit filed under the provisions of the West Pakistan Family Courts Act, 1964. In this perspective; the principle of res judicata, embodied in section 11, C.P.C., could not be applied to non-suit the petitioner on account of having unconditionally withdrawn the same claim made in his earlier suit.

7. The second issue that needs to be addressed is the jurisdiction of a Family Court to entertain a suit for recovery of property, given as gift by the bridegroom, mentioned in Column No. 17 of the nikahnama. Admittedly, the gold ornaments, weighing 10 tolas, were not part of the dowry as they were given to the petitioner as gift at the time of her marriage. A bridal gift becomes the personal property of the bride which in view of section 5 of the West Pakistan Family Courts Act, 1964, read with item No. 9 of the Schedule to the Act can be recovered by the wife for being part of her personal property and belongings. The rule in Muhammad Akram v. Hajra Bibi and 2 others supra cannot be applied to the instant case as its facts are altogether different. It is to be noted that in the cited precedent the question of Family Court's jurisdiction was with regard to the wife's claim of Rs.100,000 which the Nikahnama stated was payable by the husband in case he divorced his wife. It was held that the claim, being a mere actionable claim, did not fall within the definition of personal property with the result that the Family Court had no jurisdiction in the matter. In the present case, the gold ornaments gifted to the petitioner at the time of her marriage became her property which she could reclaim on being deprived of the same. By no means, the claim of the petitioner can be treated to be an actionable claim as Column No.17 of the Nikahnama shows that the gold ornaments gifted to the petitioner had became her property thereby falling within the purview of personal property and belongings of a wife listed in item No. 9 of the Schedule to the Act in respect of which jurisdiction has been expressly conferred by section 5 of the Act.

8. As a result of the foregoing discussion, I am of the view that the Judge Family Court had rightly decreed the suit of the petitioner for the recovery of the gold ornaments while the learned Additional District Judge had erred in law by taking a contrary view. Resultantly, the writ petition is allowed and the learned Additional District Judge's judgment/ decree dated 26-12-2009 is set aside and the judgment/decree dated 7-9-2009, passed by the learned Family Judge Court, is restored. Parties left to bear their own costs. S.A.K./N-62/L??????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.