2012 PLP 347 (CLC)

CH. MUHAMMAD TARIQ, J.

This writ petition has been directed against the judgment and decree dated 14-10-2010 passed by the learned Additional District Judge, Vehari who dismissed the appeal and maintained the judgment and decree of learned Judge . Family Court.

2. Learned counsel for. the petitioner has assailed the concurrent findings of two courts below on the sole ground that respondent No.3 filed suit for recovery of dowry articles, maintenance allowances and -payment of dower amount which was pending before the learned Judge Family Court who with the consent of the parties referred the matter to the arbitrators who announced award and the learned Judge Family Court without taking any evidence of the parties decreed the suit of respondents Nos.3 to 6 on the basis of award.?

3. The petitioner filed an appeal which was also dismissed holding that the learned trial court has rightly decreed the suit of respondents Nos.3 to 6, hence this writ petition.

4. Learned counsel for the petitioner contends that the impugned judgments and decrees passed by the both the courts below are against the law and facts, hence not sustainable in the eye of law. The learned courts below did not apply their mind, neither they asked the parties to produce their evidence and simply on the basis of award announced by the arbitrators decreed the suit, therefore, writ petition be accepted, impugned judgments and decrees passed by both, the courts below be set aside and the case be remanded back to the learned trial court with a direction to decide it afresh after recording the evidence of the parties.

5. Learned counsel for respondents Nos.3 to 6 has vehemently opposed this writ petition and has supported the. impugned judgments and decrees on the ground that the dispute between the parties was referred to the arbitrators with their free consent and arbitrators were senior counsel of the locality who have decided the matter impartially after taking due care of all the aspects, therefore, writ petition be dismissed.

6. Arguments heard. Record perused.

7. The West Pakistan Family Courts Act, 1964 provide a procedure to decide,all matters falling under the Muslim Family Laws. When law requires an act to be done in a particular manner, doing otherwise A renders the same a nullity in the eye of law. The respondents/plaintiffs filed a suit for the recovery of dowry articles, recovery of maintenance and dower amount but the learned Judge Family Court, Mailsi instead of proceeding with the matter according to procedure provided under the West Pakistan Family Courts Act, 1964, referred the matter to the arbitrators, who announced the award and the learned trial court decreed the suit of the plaintiffs/respondents Nos.3 to 6 in the light of award. This fact was also not considered by the learned first appellate court B knowing this fact that the provision of arbitration has not been provided under the Family Court Act, therefore, a Judge Family Court cannot refer a dispute pending before him to the arbitrators. The impugned judgments and decrees are not sustainable in the eye of law because arbitrators could not be directed to decide the matter pending before a competent forum. The argument of learned counsel for respondents that matter was referred to arbitrators with mutual consent is again misconceived-as jurisdiction could not be conferred with the consent of IC parties. Further to contest that an illegality committed in good faith be legalized is never supported. Both the learned lower courts have passed the impugned judgments and decrees in violation of principle of natural justice which are not sustainable in the eye of law. Therefore, this writ petition is accepted, impugned judgments and decrees passed by the learned lower courts are set aside. The case is remanded back to the E learned trial court to decide it afresh after providing adequate opportunities of hearing to both the parties. The matter be decided expeditiously, preferably within two months from the communication of this order. Parties are directed to appear before the learned trial court on 14-2-2011. M.H./M-816/L???????????????????????????????????????????????????????????????????????? Case remanded.